R v Jelicic (Review of Suppression Orders) - [2016] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Criminal)
R v JELICIC (REVIEW OF SUPPRESSION ORDERS)
[2016] SASC 58
Judgment of The Honourable Justice Peek
28 April 2016
EVIDENCE - MISCELLANEOUS MATTERS - NON-PUBLICATION OF EVIDENCE - PARTICULAR CASES
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES - SUPPRESSION ORDERS
Review of suppression orders.
At the trial of the accused for murder, evidence was given concerning the conducting of a covert police operation of the type referred to as a “Mr Big” operation. It led to the accused confessing to the crime of murder and to police officers finding further objective evidence that strongly indicated that the accused had esoteric knowledge of that crime. On 8 April 2016 the accused was found guilty by unanimous verdict of the jury.
Throughout the committal and the Supreme Court proceedings, orders were in place pursuant to s 69A of the Evidence Act 1929 suppressing publication of all evidence of, or relating to, the covert operation, the use of the technique by South Australia Police, submissions made during the proceedings regarding the technique, and the identity of the covert operatives and the Officer-in-Charge of the Covert Investigation Section of South Australia Police.
Held (discharging the suppression orders and substituting more narrow orders):
1. Matters such as police techniques should usually be permitted to be published although there is sometimes a need to impose suppression orders to avoid potential prejudice to the accused or danger to specific police operatives in specific circumstances. There must be a balancing process as between the general right to publish and the suppression of particular material that might pose a danger to covert police operatives. Broad suppression orders will not prevent criminals from learning of the “Mr Big” technique and nor will the absence of such broad orders lead to all criminals learning of it.
2. It is appropriate to discharge the current orders and substitute more narrow orders.
Evidence Act 1929 ss 69A; 69AB, referred to.
Tofilau v The Queen (2007) 231 CLR 396; In the matter of an Application by the Chief Commissioner of Police (Vic) (2005) 79 ALJR 881; Cowan (AKA Shaddo N-Unyah Hunter) v The Queen [2016] HCA Trans 57, discussed.

R v JELICIC (REVIEW OF SUPPRESSION ORDERS)
[2016] SASC 58

PEEK J. Review of suppression orders.
The history of this matter
On 7 March 2013, Mr Piscioneri, who was 80 years of age and living alone at Hendon, was beaten to death in his home. His wallet was missing from his body. On post mortem, he was found to have died as the result of the infliction of a number of severe blunt force injuries to his face and head which had necessitated the infliction of at least 10 separate blows.
By 22 March 2013, Mr Jelicic was suspected by investigating police of having been involved in the murder. On that day, police informed Mr Jelicic that he was a suspect, interviewed him under caution and searched his premises pursuant to a general search warrant. Mr Jelicic answered all questions and denied any involvement in the murder.
In December 2013, a Mr Big police covert operation was launched against Mr Jelicic. As a result of the operation, in February 2014 Mr Jelicic confessed to police undercover operatives that he was guilty of the murder and furnished police with certain new objective evidence which strongly indicated that he had esoteric knowledge of the crime and which was therefore supportive of the reliability of his confession of that crime.
A brief summary of a Mr Big police covert operation
Of course, the words “Mr Big” do not in any way refer to the target of a Mr Big operation but rather to an entirely fictitious “boss” of an entirely fictitious criminal gang. For present purposes, the essence of a Mr Big operation is succinctly described in the judgment of the Victorian Court of Appeal in Re Applications by Chief Commissioner of Police (Vic) as follows:[1]
[6]     In order to understand the applications both before the judges of the Trial Division and in this court it is necessary to know a little more of the evidence relating to these matters which the Chief Commissioner sought to suppress. We will try to describe matters in terms of generalities, so as not to place at risk any individual, but, for reasons which will appear, the broad scope of the investigative materials is already publicly known. Certainly it is known in Canada whence the method of investigation is said to have been largely adopted, for a general bar on publication has been held to be inappropriate by the Supreme Court of Canada in cases such as R v Mentuck.
[7]Recently a “Cold Case” unit was established within the Homicide Squad of the Victoria Police. Working on the basis that, in some cases as a practical proposition, no charges would ever be likely to be laid against various individuals suspected of the commission of unsolved murders without admissions of guilt being made by the suspects, what would now be recognised generally in the community as “sting” operations have been undertaken. They have involved the employment of a technique developed in Canada and based on the straightforward idea that guilty persons may well incriminate themselves if they consider that to be both in their interests and safe to do so. What are called “scenarios” were designed and developed to establish such conditions. They have been of a generally similar kind, but adaptations have been made in order to accommodate the circumstances under which the particular investigation had to be conducted and the perceived personality of the targeted individual.
[8]Basically the technique involved the use of undercover operatives who would, employing an appropriate pretext, make contact with the suspect. After a degree of confidence had been established, the person would then be introduced to a “criminal gang” that supposedly operated under the direction of a powerful “boss”. There would be suggestions made that, if the suspect was accepted into the gang, he or she would be able to share in its carefully organised and highly profitable activities. The boss himself was held out as a person who could monitor and influence the conduct of police investigations. At the same time the suspect would be given indications of a resurgence of interest in the investigation of their own matter. The suggestion would be implanted that the police may have come into possession of further information. This would be done for the purpose of creating in the suspect a measure of anxiety and some eagerness to ascertain the current state of police knowledge. The object of the exercise was, by carefully manipulating these influences, to induce the suspect to make full disclosure to the boss who, of course, would insist that nothing be withheld if the individual was to secure the acceptance and protection available to gang members. The ensuing conversations would be recorded on video or audio tape.[2]
[9]The technique, we have been informed, has been successfully employed in both Canada and the United States on a number of occasions. Members of the Victoria police force have received training in its use. The technique has not only been used in Australia but in other States where the methods adapted for use in Victoria have in turn been adapted for use in those States, though in some cases the local police forces have devised their own procedures. Whilst the concept is simple enough, it is evident from this brief description that a deal of careful planning and considerable expertise is necessary if the technique is to be successfully employed. …   [Citations omitted]
[1] (2004) 9 VR 275, 277-278.
[2]    Importantly, from the beginning of the covert operation in the present case, all contact with Mr Jelicic was digitally recorded and not just the final confession, as has occurred in some other operations.
The proceedings against Mr Jelicic and the suppression orders
Mr Jelicic was charged with murder and subsequently appeared in the Adelaide Magistrates Court. On the application of the Commissioner of Police (SA), supported by two confidential affidavits sworn by senior police officers, and without opposition by counsel for Mr Jelicic, a Magistrate made orders in the terms requested by the Commissioner as follows:
Order suppressing from publication:
(a)all evidence of or relating to a technique employed by the South Australia Police during the undercover investigation of the deft and the use of that technique by the South Australia Police
(b)any submissions made during the proceedings regarding that technique
(c)the identity (including images) of the undercover operatives who took part in the technique and the Officer-in-Charge of the Covert Investigation Section of South Australia Police, in connection with reports of these proceedings.
Another Magistrate reviewed the order and, with the consent of all parties, ordered that it remain in place until the date of the arraignment of Mr Jelicic in the Supreme Court.
On 10 April 2015, Mr Jelicic was committed for trial in the Supreme Court. On 11 May 2015, Mr Jelicic was arraigned in the Supreme Court in the course of a general arraignment list and the suppression order made in the Magistrates Court thereby expired.
The Commissioner of Police then made an application for suppression orders to be made by the Supreme Court, which application was supported by a further confidential affidavit sworn by a senior police officer. The application was granted and orders were made in the following terms as requested by the Commissioner:
(a)All evidence of or relating to a technique employed by the South Australia Police during the undercover investigation of the Defendant and the use of that technique by the South Australia Police.
(b)Any submissions made during the present proceedings before the Supreme Court regarding that technique.
(c)The identity (including images) of the undercover operatives who took part in the technique and the Officer-in-Charge of the Covert Investigation Section of South Australia Police, in connection with reports of these proceedings.
It is to be noted that, as at that time, it was evident that the trial was to be held before a jury and that it was highly likely that there would be an application made to the assigned trial Judge to exclude the evidence of the covert police operation.
On 9 March 2016, a voir dire hearing commenced to determine the defence application for the exclusion of that evidence. It appeared that the case for exclusion was arguable and I therefore decided that the suppression order should remain on foot until determination of that application since, if the evidence were to be eventually excluded, publication of the very fact that the accused had been targeted in an extensive and expensive operation might well be prejudicial to the accused on his trial by jury.
On 16 March 2016, I gave my decision on the voir dire application and ruled that the evidence was to be admitted. Ms Harrison, who appeared for the Commissioner of Police, immediately applied for the suppression order to be continued for at least the duration of the trial. I then made the following observations:
My overall impression of the general situation nationwide is that what I might call Mr Big Operations – referred to by various names but we will use that name for the moment – has been extensively published and indeed, in very recent times in connection with the application for special leave to appeal [to the High Court] in relation to the Morcombe death – Mr Cowan being the applicant – and it just seems to me to be, without hearing you fully at the moment, somewhat unrealistic to preclude publication of this present case now that I’ve ruled the evidence admissible.
When the admissibility of the evidence was being tested it seemed to me that these matters should not be published because if I had ruled the evidence inadmissible, that would have been unduly prejudicial to the accused. But now that I have ruled it admissible, it seems to me that SAPOL would have known for a long time now that sooner or later these matters would come to be reported in South Australia, as they have elsewhere in Australia, and it’s not just a matter of, as it were, putting in an affidavit saying ‘Well this might prejudice current operations’ when it’s been known for a long time that sooner or later this is going to happen.
Now, in relation to the affidavit that was previously tendered, that operation is now quite old and I would rather think it’s probably terminated and if SAPOL, as it were, has rolled on with other operations knowing that there is the probability that there is going to be publication of this operation, well that’s a risk that they have taken.
Ms Harrison then indicated that she wished to tender further confidential affidavit material. I granted a further period of 24 hours in which that might be done. I received and read the foreshadowed further confidential affidavit material within that period.
On 17 March 2016, the matter of the suppression matter was called on again at 10:00am. I heard submissions from Ms Harrison and two members of the media. I indicated that I would continue the suppression orders until the conclusion of the trial but made plain that at that time I might well permit publication of details of the police covert operation. I stated:
… what I want to indicate to you and your clients is that I will defer a decision, that is to say, I will maintain the suppression order as it is presently, coupled with that minor order I made a few moments ago concerning submissions yesterday and today.
I will defer my review of those matters until the end of this trial. I would not want your clients to assume that just because I am doing that, I will be ruling in their favour at that time. They should be proactive in terms of making arrangements on the basis that at the time I may well permit publication.
On 7 April 2016 the trial concluded when the jury by unanimous verdict found Mr Jelicic guilty of murder. On 8 April 2016, notification was given that I would hear submissions concerning the continuation of suppression orders on 14 April and Ms Harrison was granted until 5:00pm on Monday 11 April to furnish any further affidavit material, outline of argument and copies of authorities to be relied upon. The only material that was provided within that time was one further confidential affidavit and I have considered that.
On Thursday 14 April 2016, the matter of the suppression matter was called on for hearing at 10:00am. I heard submissions from Ms Harrison, defence counsel Mr Ey and a member of the media and reserved judgment.
I now make the following orders.
Order 1: The orders suppressing publication of certain material which were made by the Supreme Court of South Australia on 11 May 2015 and 17 March 2016 in connexion with the prosecution of Mr Damien Jelicic for the charge of murder are hereby discharged.
Order 2: Pursuant to s 69A of the Evidence Act 1929, the publication of any words or aural material or visual material that may tend to identify either the officer-in-charge of the covert investigation section of South Australia Police or any of the covert operatives who took part in the covert operation concerning Mr Damien Jelicic is hereby suppressed. The subject matter of this order is to be taken to include any reference to fictitious names used by any of the covert operatives in the course of the covert operation concerning Mr Jelicic, or in the course of court proceedings concerning Mr Jelicic.
Order 3: Pursuant to s 69A of the Evidence Act 1929, the publication of all aural recorded material and all visual recorded material created in the course of the covert operation concerning Mr Damien Jelicic and created in the course of court proceedings concerning Mr Damien Jelicic is hereby suppressed.
It is to be noted that orders 2 and 3 are very much narrower than the previous discharged suppression orders. They are concerned with protecting the true identity of, and the safety of, police undercover operatives. I emphasise that order 2 does prohibit any publication of any of the fictitious names used by operatives in the course of the covert operation and in the course of court proceedings. However, order 2 does not prohibit the publication of the designations of the covert operatives by letter and number as referred to in the proceedings in the Supreme Court such as “U50”, “D14” and so on. Accordingly, those designations alone may be published.
My reasons for the making of the above orders follow.
Previous publicity given to Mr Big operations
The covert operation often referred to as the Mr Big operation is by now very well known. It has been used on very many occasions in North America where it has occasioned much media publicity and discussion. It has also been used on a significant number of occasions in several of the Australian jurisdictions and also received significant levels of media publicity and discussion.
In Australia, there has been extensive consideration of the Mr Big operation by trial Judges, by Courts of Appeal, and ultimately by the High Court in 2007 in Tofilau v The Queen[3] when that Court considered appeals by four separate Victorian appellants (Messrs Tofilau, Marks, Hill and Clarke) who had each been separately convicted in trials following separate Mr Big operations in respect of each of them. In Tofilau, the High Court dismissed the appeals in respect of all of the appellants and the High Court decision in Tofilau remains the central authority concerning admission of evidence of Mr Big operations in Australia.
Police applications for the suppression of publication in respect to Mr Big operations
[3] (2007) 231 CLR 396.
In 2004 in conjunction with the Tofilau case, the Victorian Commissioner of Police made applications for suppression of the details of Mr Big operations to extend beyond the completion of the trial of Mr Tofilau. The trial Judge rejected that application, which decision was affirmed by the Victorian Court of Appeal on hearing the Commissioner’s application for leave to appeal. That Court of Appeal judgment of President Winneke and Appeal Justices Ormiston and Vincent in Re Applications by Chief Commissioner of Police (Vic)[4] remains the central authority concerning publication of evidence of Mr Big operations in Australia.[5]
[4] (2004) 9 VR 275.
[5] The High Court refused an application by the Commissioner for special leave to appeal: In the matter of an Application by Chief Commissioner of Police (Victoria) (2005) 79 ALJR 881.
It would be otiose for me to traverse all of the ground there covered and I will simply note four points made by their Honours.
The first point is that matters such as police technique should usually be permitted to be published. Thus their Honours stated:[6]
[23]The law recognises that there may be circumstances in which, by reason of the presence of some highly important public interest consideration, a need arises to suppress the publication of some part of the evidence given in what would otherwise be a publicly conducted criminal trial. It is also understood, however, that the inappropriate use of suppression orders poses the potential to jeopardise both the fact and the perception of the transparency and justice of our trial processes, whether in civil or criminal matters. Where police investigative techniques do assume relevance, to our knowledge they have always been open to publicly conducted challenge by the accused, at least since the criminal trial has taken its modern form.
[6] (2004) 9 VR 275, 284-285.

The second point is that such matters as police technique may sometimes be suppressed from publication in particular cases where there is a particular need to avoid potential prejudice to the accused, or to avoid danger to a specific police operative in specific circumstances. However, the situation is different where police seek a wide order divorced from the circumstances of the particular case in which the application is brought.
It is that latter situation that is evident in the present case and the following further passages in the judgment of the Victorian Court of Appeal are directly in point. Their Honours stated:[7]
[26] … It would thus seem that orders made in the present proceedings must depend on their statutory basis for[8] their significance will have little to do with the proceedings then before the court and are designed to give protection for certain purposes or to certain individuals into the future, being likely to have a significance in relation to future proceedings, not those presently before the court.
…
[28]… In each of the circumstances in which the public disclosure of any part of our criminal justice processes has been prohibited, other powerful public policy considerations have militated in this direction. The identities of informers or undercover operatives are normally protected, for example. However, that protection must give way where the fairness of the trial itself is compromised. … On occasions an order may be made for the suppression of the evidence adduced in a particular trial to avoid injustice in some related proceeding, but it is normally of limited duration and operates until the related matter has been finalised. Usually, at the trial level, such orders are made to avoid the public disclosure of the identity of the individuals to avoid exposure to danger and, very occasionally, to prevent public embarrassment. This may result in some cases in the suppression of part of the evidence which carries the potential to identify the protected person, but that is not the underlying purpose for the order. We are unaware of any situation in which an order of the kind desired here has either been sought or granted.
[7] (2004) 9 VR 275, 287-288.
[8] The word “for” is here used in the sense of “because”.
The third point is that it is equally unrealistic to suggest, on the one hand, that the making of orders of the type sought will prevent criminals learning of the Mr Big technique or, on the other hand, to suggest that the refusal to make such orders will lead to all criminals learning of the Mr Big technique. Thus the Victorian Court of Appeal stated:[9]
[9] (2004) 9 VR 275, 292-293.
[42]The engagement by police agencies in “sting” operations of a variety of kinds, according to the subject of the investigation being pursued and the nature of the evidence or information being sought, is well known to and accepted by the community. Police officers, posing as drug dealers, have been employed in hundreds, if not thousands, of such operations in this country over many years. Even in seeking to procure acts of murder a surprising number of people have attempted to engage persons to perpetrate the killings on their behalf who, unknown to them, were undercover operatives. This has occurred in spite, we should add, of the number of convictions of similarly inclined individuals. Likewise operations have been mounted to identify paedophiles using the Internet. The infiltration of car-stealing gangs has also been undertaken. What occurs in these various operations is regularly the subject of evidence in open court. No reason has been advanced to us that would justify a different approach being adopted in relation to this technique. Certainly the individual operatives are at personal risk during the carrying out of the operation but it must almost invariably be the case that the operation is concluded when the matter comes on for trial. If the technique adopted is so similar when used in other investigations, there would almost invariably be a risk to the police operatives engaged in any later operation, for it should not be assumed that those who move in “underworld” circles would be unaware of techniques adopted and of circumstances which had occurred in earlier cases, including the use of methods of the kind here employed. But the idea that an order of the kind sought in these cases could be thought to be effective to stop the passing on of that information is, if we may say so, fatuous, for the threat of punishment for contempt of such orders, even if that involved an order for imprisonment, would be of little deterrent effect on persons serving extensive terms for murder or their colleagues.
[43]It cannot be assumed that the technique which is the subject of reported decisions in the Supreme Court of Canada has not or will not become more generally known, at least to those likely to be its target, and it must be anticipated that, at least until that occurs, other police agencies in this country may make use of it. To quarantine the entire State of Victoria against the intrusion of such knowledge and the concealment of the employment of the techniques is quite impractical in our view. Whatever orders may be made there will still remain the possibility, if not likelihood, of relevant information reaching those suspected of other murders.
[44]Would an overseas television program based, perhaps fictionally, upon what had occurred in Canada be subject to the operation of any proposed order for the continued suppression of information where it was possible that its screening might alert “targets” in Victoria? Presumably the media in this State would be precluded from publishing, in an article or program dealing with police investigative techniques generally, material extracted from the reported decisions of the Supreme Court of Canada which outline the methods, to the extent that they were similar to those adopted in this State. In Canada the Crown had argued that the “hallmarks of the operation” did not have to be kept entirely secret by any publication ban but they must be kept out of the mass media, “since the type of persons targeted by these operations [were] much more likely to have access to recent copies of newspapers and to television news reports than to, for instance, legal journals and law reports”. As to this argument Iacobucci J, delivering the judgment of the court, said:
Assuming that these publications can be properly identified, this would mean that lawyers, law professors and law students would be aware of the police practices, but not the general public. I find that result disquieting to say the least.
In this era of Internet searching the argument also might not be very realistic.
[Citations omitted; emphasis added]
With respect, if one substitutes the words “South Australia” for “Victoria” in paragraphs [43] and [44] immediately above, their Honours’ remarks are directly applicable to the present case. Of course, the point made by the Victorian Court of Appeal is further emphasised by the occurrence of recent national publicity concerning a Mr Big operation in the case of the murder of the child Daniel Morcombe, continuing to as recently as last month when the High Court on 11 March 2016 refused to grant special leave to Mr Brett Cowan to appeal against his conviction of that murder.[10]
[10] Cowan (AKA Shaddo N-Unyah Hunter) v The Queen [2016] HCA Trans 57.
The fourth point is that a general approach in favour of non-suppression will always yield to the particular circumstances of particular cases. Thus, the Victorian Court of Appeal stated in concluding remarks:[11]
[46] … What we here say, of course, is not in any way intended to restrict those circumstances in which the court presently provides protection to various persons either under the statutory provisions or, as it may be perceived, under its inherent power to protect the administration of justice. Not infrequently orders are made which have a bearing, not on a current trial but one intended to take place in the future, but the object is to ensure that the accused is fairly tried. One frequently encountered example is where prejudice is likely to occur to the accused if details of earlier trials are published which may come to the attention of the jury who would otherwise be prevented from hearing of them, and we give again the example of the case of Glennon where details of trials and appeals were restricted from publication because three future trials had to be held, which in fact took several years and the restriction was only lifted last December. Indeed most examples will be directed towards preserving the position of an accused and we would in no sense wish to prejudice the trial of any such person if publication might have a deleterious effect, so long as it is realised that the remedy is out of the ordinary and one to be granted bearing fully in mind the desirability of an open trial, the details of which may be brought more widely to public attention.
[11] (2004) 9 VR 275, 293-294.
Hopefully, it will be understood by all concerned in the present case that there must be a balancing process as between the general right to publish and the suppression of the publication of particular material that might pose a danger to covert police operatives. The following orders are designed to strike that appropriate balance.
Orders
Order 1: The orders suppressing publication of certain material which were made by the Supreme Court of South Australia on 11 May 2015 and 17 March 2016 in connexion with the prosecution of Mr Damien Jelicic for the charge of murder are hereby discharged.
Order 2: Pursuant to s 69A of the Evidence Act 1929, the publication of any words or aural material or visual material that may tend to identify either the officer-in-charge of the covert investigation section of South Australia Police or any of the covert operatives who took part in the covert operation concerning Mr Damien Jelicic is hereby suppressed. The subject matter of this order is to be taken to include any reference to fictitious names used by any of the covert operatives in the course of the covert operation concerning Mr Jelicic, or in the course of court proceedings concerning Mr Jelicic.
Order 3: Pursuant to s 69A of the Evidence Act 1929, the publication of all aural recorded material and all visual recorded material created in the course of the covert operation concerning Mr Damien Jelicic and created in the course of court proceedings concerning Mr Damien Jelicic is hereby suppressed.