Some extremely alarming news coming out of Canada in the last week, the Supreme Court of Canada has upheld a decision to set aside the verdict of a man convicted of murdering his 2 children after confessing in a "Mr Big" sting which has eerie similarities to this case.
Normally the judgment of an international court wouldn't be particularly relevant but as the Mr Big technique was pioneered in Canada and Canadian case law has been extensively relied upon during Australian appeals in the past, it's worrying to say the least.
The Canadian judgment -
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14301/index.do?r=AAAAAQALbmVsc29uIGhhcnQAAAAAAQ
The Mr Big concept has been unsuccessfully challenged before in the High Court of Australia (as it has previously in the SCC) but it's important to note that it was a majority decision, with Kirby dissenting and this is many years before this previous judgment which explicitly states that the previous case law was inadequate -
I agree with the respondent and amicus curiae. In my view, the law as it stands today provides insufficient protection to accused persons who confess during Mr. Big operations
The SCC judgment held that any confessions procured during a sting of this nature are presumptively inadmissible and this can only be overcome where it can be demonstrated that the probative value outweighs any prejudicial effect.
Additionally, the court held that admissions garnered through either implied or actual violence were not admissible under any circumstances -
A confession derived from physical violence or threats of violence against an accused will not be admissible no matter how reliable because this, quite simply, is something the community will not tolerate
The court did not delve into the violence aspect in any depth because the first ground was sufficient to uphold the earlier decision but it goes without saying that it could be significant as it was intimated to Cowan on numerous occasions that "bad things happen to people who betray the gang" (paraphrased).
Obviously an Australian court is not bound by this recent decision but based on previous appeals, it appears likely that they will lean heavily on it, if not follow it absolutely.
The parallels are remarkable, essentially the accused in both cases was an itinerant of very limited financial means who had a limited social network. Both made some confessions that were seemingly inconsistent with the known facts and when confronted by gang members about their involvement, both denied that they murdered their victims initially and confessed only when the ante was upped.
The SCC went on to specifically state that the exploitation of vulnerabilities, such as the financial state of the person being targeted, must also be taken into consideration.
The appeal may well fail in the QCA as they do not have jurisdiction to override HCA judgments (specifically
Tofilau v The Queen [2007] HCA 39)but if/when it goes to the HCA, and that would seem likely, it has the unfortunate possibility to be a different story. This is a man that I doubt anyone in Australia ever wants walking the streets again but the Canadian judgment literally could not have come at a worse time
http://www.brisbanetimes.com.au/vic...-child-killer-brett-cowan-20140804-zzzsr.html
