R v Reddy - [2016] NZHC 1294

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NO PUBLICATION FOR 5 DAYS AND UNTIL FURTHER ORDER OF THE
COURT FOLLOWING THE EXPIRY OF THAT PERIOD.

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2014-092-011748 [2016] NZHC 1294

Hearing: Counsel:

THE QUEEN

KAMAL GYANENDRA REDDY 19 May 2016

NE Walker, IJ Clancy and H Benson-Pope for Crown GC Gotlieb for Defendant

KM Wilson for Media Or 11.5isatioHigh

Judgment: 15 June 2016

JUDGMENT OF ASHER J
(as to suppression of evidence)

This judgment ivas delivered by me on Wednesday, 15 June 2016 at 1 pm
pursuant to t.m. of the igh Cowl Rules.

Registrar/Deputy Registrar

Susan Knowles Deputy Registrar High Court Auckland

Solicitors/Counsel:

Crown Solicitor, Manukau.

JB LJebs, Napier.

GC Gotlieb, Auckland. Bell Gully, Auckland.

Table of Contents

Para No
Introduction	[1]
The factual and procedural background
Reddy investigation	[⁵]
Mr Big investigations	[13]
Crown position	[18]
Relevant statutory background	[24]
Is the first stage threshold crossed?	[32]
The second discretionary stage — should an order be made?
Relevant international decisions	[40]
Relevant New Zealand decisions	[49]
The competing concepts	[63]
The factor in favour of suppression — prejudice to Police investigations	[65]
The factors against suppression	[71]
Conclusion	[76]
Result	[77]
Introduction

This is an application for the suppression of the operational details of a lengthy and complex undercover Police operation, following a jury trial where those details were given in evidence, and constituted much of the prosecution case against the defendant. There has been interim suppression of the details of the undercover operation up until now.
The case pitches a number of important concepts directly against each other. On one side is the principle of open justice, and the allied concepts of the right to have a public trial and to receive information. These work against granting suppression. On the other side, working for suppression, is the concept that the lawful detection of terrible crimes should not to be hindered by the disclosure of effective Police undercover techniques. In New Zealand a balancing of these concepts takes place in the statutory context of the Criminal Procedure Act 2011 and the New Zealand Bill of Rights Act 1990, which contain provisions of direct relevance.
Suppression of the details of the Police investigation is sought by the Crown on behalf of the New Zealand Police, represented by Ms Walker. This is opposed by Mr Gotlieb for Mr Reddy, who wishes to have all the details published. Suppression

is also opposed by a group of leading New Zealand media organisations represented by Ms Wilson.¹ Mr Edward Gay, a reporter for Radio New Zealand, has also filed submissions in opposition to suppression on behalf of that entity.

I have concluded that there should be no suppression, and before setting out

my detailed reasoning I summarise my findings:

(a)There is likely to be some prejudice to Police use of Mr Big operations in the future if there is publication. I do not consider there would be a significant extra safety issues for police officers.
(b)That prejudice to future investigations will be limited because there are details of Mr Big operations akin to this investigation already in the public domain and easily accessible.
(c)There are no present investigations that could be prejudiced, and the
passage of time and accompanying fading memories will limit prejudice to future investigations.
(d)The balance of overseas authorities have allowed publication.
The detail in the public domain will be added to later this year by the publication of R v X which contains detail of an operation with close similarities to this investigation, further limiting the prejudice.
(f)The principle of open justice, the right to a public trial, and the right to receive information all favour publication.
(g)The Mr Big technique is controversial in New Zealand and in
Australia and Canada, and the desirability of a fully informed public debate in this country favours publication.

(h)The desirability of an uninterrupted trial of a serious crime, where
those with a legitimate interest in hearing the whole case will be intermittently excluded if there is suppression, works for publication.
(i)A balancing of these factors results in a conclusion against ongoing
suppression.

The factual and procedural background Reddy investigation

On 13 May 2016, Mr Reddy was found by a jury to be guilty of the murder of
Pakeeza Yusuf and Juwairiyah Kalim after a three week trial.² The murders took place on about 28 December 2006. Mr Reddy strangled Ms Yusuf with the electric cord of an iron and then smothered Juwairiyah, Ms Yusuf's three year old daughter. Mr Reddy had been Ms Yusuf's boyfriend and on occasions live-in partner.
Ms Yusuf had been leading a relatively solitary life in Auckland, having
moved to New Zealand from Fiji for a marriage (to Juwairiyah's father) which had subsequently ended. She had few relatives and friends in New Zealand, and was temporarily estranged from her mother, Rojina Banu, who in any event lived in Fiji.
For many years her disappearance went unreported to the Police. When
asked by family or associates of Ms Yusuf about her whereabouts, Mr Reddy indicated that she had left Auckland with another man. In January 2013 her mother reported her missing. The Police interviewed Mr Reddy, who denied any direct knowledge of her disappearance.
The Police suspected that Mr Reddy had murdered Ms Yusuf and Juwairiyah,
but they had little to go on. There was some evidence of changed patterns in his and Ms Yusuf's bank accounts after her disappearance, indicating that Mr Reddy may have taken and used Ms Yusuf's benefit after her death. There was some evidence indicating he had retained or had got rid of her furniture. That was all. If he had
The sentencing is yet to take place.

murdered her and her daughter, he had committed what appeared to be the perfect crime.

The Police therefore instigated an investigation, using an undercover Police

investigatory technique known as the Crime Scenario Undercover Technique, The essential features of such an operation, using undercover officers who had assumed false identities, are as follows:

(a)Making contact with the suspect in a low key and relatively routine
way.
(b)Following the initial contact, introducing the suspect to persons who,
over the course of some staged incidents (scenarios), showed themselves to be involved in an organised criminal group that was funded by ongoing non-violent criminal activity.
(c)Demonstrating through further scenarios that the criminal group had
significant financial resources, and access to corrupt police officers.
(d)Engendering a belief in the suspect that he had a place within the
group and was valued by it.
(e)Inducing a personal friendship between the suspect and the
undercover officer with whom the suspect had most contact.
(f)In the lead-up to interviewing the suspect, persuading him or her that
a key feature of membership of the group was that all past crimes committed by a prospective member, no matter how serious or awful, were to be fully disclosed so that the group, through its corrupt Police contacts, could get rid of evidence and, ensure that there was no further Police action.

of serious crimes "go away", making the suspect believe he was at risk of a Police investigation into the suspected crime.

(h) Staging a final filmed meeting, under the pretence of testing whether
the suspect could be fully admitted to the gang, where the undercover officer acting the role of the head of the group (Mr Big) persuades the suspect to fully disclose the details of the past crime or crimes so that the investigation can be stopped.

This technique was practiced on Mr Reddy. He was contacted, a friendship and work association with the "gang" was developed, and he was persuaded by various scenarios, acted out by undercover officers (sometimes acting as corrupt Police officers), that the group could make bad crimes go away.
Mr Reddy wanted to be part of the group and ultimately when he met Mr Big over two meetings he confessed to the crimes. He disclosed where he had buried the bodies of his victims. Still believing that he was dealing with a criminal group, he was persuaded to show the undercover officers where the bodies were buried, how he had buried them and who had helped him. The bones of Ms Yusuf and Juwairiyah were found at the exact spot he had indicated. His relative Bal Naidu, who he identified as having helped him dispose of the bodies, ultimately gave evidence confirming Mr Reddy's confession, insofar as Mr Naidu had any involvement in the events. Ultimately at the trial, Mr Naidu deposed that on the night in question Mr Reddy came to him for help, and told him that he had killed his girlfriend and her daughter.
The evidence obtained through this operation was held to be admissible at a pre-trial hearing by Woodhouse J on 24 March 2016.³ Without opposition from the defendant and the media present, I granted the Crown application for interim suppression during the trial of the details of the undercover operation. This was on the basis that I would hear full argument on the application following the trial. That hearing has now taken place, and I must now determine whether the interim suppression should continue.
R v Reddy [2016] NZHC 526 (this decision is currently unpublished).

Mr Big investigations

Admissions of a suspect elicited by this undercover technique have been held to be admissible in evidence in the leading New Zealand Supreme Court case of R v X⁴ Although the Crown and Police referred to the model as the Crime Scenario Undercover Technique (CSUT), and it has been given other names, I have adopted the description used in R v X in considering the technique, where it was referred to as the "Mr Big" technique or operation.
In New Zealand, the question of the admissibility of confessions obtained through Mr Big operations was considered first by the High Court and Court of Appeal in R v Cameron, which was considered both in a pre-trial admissibility challenge and a post trial challenge to conviction.⁵ The question was then considered in more detail recently in R v X. The confession obtained through the Mr Big scheme in R v X was ruled to be admissible by Collins J in the High Court and inadmissible by a unanimous Court of Appeal, before being determinatively held to be admissible by a majority in the Supreme Court.
The New Zealand challenges to the use of the Mr Big scheme echo the challenges to the use of evidence obtained through the scheme in Australia and Canada, the other jurisdictions where it has been used.⁶ Both the High Court of Australia and the Supreme Court of Canada have held "Mr Big" schemes to be admissible, with some restrictions.
I have referred to the leading Supreme Court judgment on the admissibility of Mr Big schemes as R v X, which is not the real name of the case. This is because R v X is at present still subject to suppression orders which were put in place to protect the fair trial rights of the defendant who was the target of that Mr Big operation. That decision is already available on legal databases, as fair trial suppression orders authorise publication in law reports as an exception to general suppression. The suppression orders do not require that the judgment remain suppressed to the public after the trial of the case is completed.
This is a false name and no citation is given — see [16] of this judgment.

⁵ R v Cameron [2009] NZCA 87; R v Cameron [2007] NZCA 564.

R v Hart 2014 SCC 52, [2014] 2 SCR 544at [169] and [226] and Tofilau v R [2007] HCA 39,
(2007) 231 CLR 396.

The result of these previous judgments and the temporary nature of the suppression orders in place, is that it is accepted by the Crown that the Supreme Court decision is likely to be in the public domain following the final disposition of Mr X's trial.

Crown position

Despite this, the Crown seek suppression orders in this case. It is the Crown's position that the R v X decision should be the starting point for any public debate about the technique.
The Crown seeks an order forbidding publication of all evidence and submissions from both the pretrial hearing and the trial regarding the Mr Big operation used in Mr Reddy's case, including the assumed names used by all undercover officers. The order would extend to the judgment of Woodhouse J in which he found the Mr Big operation evidence relating to Mr Reddy to be admissible.^?
The Police accept that the general structure of the operation outlined at [9], as well as the more specific details of the Reddy operation detailed in Appendix A can be revealed. There has already been some reporting which has referred to the Reddy operation using "staged criminal scenarios" following agreement between the Crown and media.⁸ At least these features, therefore, are all public knowledge or will be with the consent of the Crown following the release of this judgment. The details revealed by the Supreme Court in R v X go beyond the details that the Crown accepts should be revealed concerning this case.
The Crown has filed affidavit evidence of Detective Inspector Paul Berry in support of its suppression application. Inspector Berry deposed that disclosing details relating to the Mr Big operation beyond those set out in Appendix A "would provide criminals with significant information about how Police operate, what type of scenario to look out for and how a series of scenarios would fit a pattern of an
R v Reddy [2016] NZHC 526.
See, as one example, Kelly Dennett "Cold case confession: How undercover cops caught Kamal
Reddy for double murder" Stuff.co.nz (online ed, 13 May 2016).

undercover operation". He believes that such dissemination could significant limit the Police's ability to significantly use the technique in the future.

In a second affidavit he focussed in particular on the scenario technique, copied from Canada and in more detail from Australia. He lists a variety of specific scenarios that are utilised, involving a particular cast of undercover officers and props, and the following of a rough methodology or script.
Publication of information about Mr Big operations has been permitted in Canada and Australia by their courts.⁹ Inspector Berry stated that he is informed that, on the basis of the Canadian experience following publication of the scenarios of the type the Police are seeking to suppress, there will be a greater number of deployments (40 to 50 in comparison to the previous 20 to 30) and a longer time involved (eight to 12 months as against the former four to six months) when utilising this technique. He deposed that while in New Zealand there are no active operations using the technique at the moment, it is anticipated that they will be used in the near future and that "any detailed publicity surrounding the technique will make Police reconsider the use of it to ensure the continued health and safety of their staff'. He commented that if criminals know about scenarios and consider that they are being subjected to the attention of undercover officers, the safety of the officers is thereby compromised. He concluded:
I consider that it is not in the public interest to release specific details about the way the scenario technique is employed in New Zealand. I believe that to do so would undermine the effectiveness of the future use of the technique in serious crime investigations and make it unsafe to deploy undercover agents on these operations.

Relevant statutory background

Section 196(1) of the Criminal Procedure Act provides:
196 Court proceedings generally open to public (1) Every hearing is open to the public.
R v Mentuck 2001 SCC 76, [2001] 3 SCR 442 and Re Applications by Chief Commissioner of Police (Vic) [2004] VSCA 3, (2004) 9 VR 275, leave to appeal refused by the High Court: In the matter of an Application by Chief Commissioner of Police (Victoria) [2005] HCA 18, (2005) 79 ALJR 881.

Under s 198 of that Act a Court may not exclude members of the media except on grounds relating to the security or defence of New Zealand.
Section 14 of the New Zealand Bill of Rights Act 1990 (NZBORA) provides: 14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
Section 25(a) provides:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court:
However, despite this regime favouring unrestricted reporting, s 205 of the Criminal Procedure Act provides:
205 Court may suppress evidence and submissions
(1)A court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence.
(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(c) endanger the safety of any person; or
(e) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

rights. Given this unambiguous expression of Parliamentary intention, there is no need to engage in an extended rights-based interpretive analysis. Rights will be considered in the balancing analysis that takes place in determining whether the Court should exercise its discretion to suppress information.

[30] The language used and structure of s 205 is similar to that of s 200 of the Criminal Procedure Act. In both sections the first subsection confers on the Court a discretion to suppress ("may make") and in the second subsection sets out the prerequisites to the exercise of the discretion. In Robertson v Police the Court of Appeal described the two-stage test involved in applying s 200 to suppression of name:¹⁰

[40] At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is "only if' one of the threshold grounds has been established that the judge is able to go on to the second stage.
[41] At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.
(footnotes omitted)

[31] I will adopt the same two-stage approach in determining this application under s 205.

Is the first stage threshold crossed?

[32] The first ground is that publication will lead to prejudice to the investigation of offences. The uncontested affidavits of Inspector Berry set out his belief that the publication of all the details of the Reddy investigation will make similar Police investigations more difficult in the future. Given the media attention to this case so far, the removal of the suppression orders is likely to lead to publicity about the details of the investigation. The "stories" of the various scenarios may attract some public attention.

^1° Robertson v Police [2015] NZCA 7 at [40]—[41].

As a greater awareness of the Mr Big technique permeates into the consciousness of New Zealanders, I accept that it is likely that a potential suspect could become aware of the technique. This is relevant prejudice, as it could follow that a suspect in a later investigation who remembered the media reports, and was sufficiently alert, might become suspicious of an undercover investigation which contained features similar to the Reddy case. This might lead at the very least, to a future suspect refusing to participate. In that respect there is prejudice to the investigation of offences, if there is no suppression. I therefore conclude that the prerequisite in s 205(2)(e) is made out. The extent of the prejudice is a matter that I will discuss in detail later in this judgment.

The second ground relied on by Ms Walker under s 205(2)(c) is that publication would be likely to endanger the safety of any person, here an undercover police officer. I am not persuaded that this ground is made out for three reasons.
First, while Inspector Berry expressed the view that publication would endanger the safety of officers, there was no evidence adduced to indicate that the very extensive publicity about the details of Mr Big cases in Canada and Australia had led to the safety of any police officer being seriously compromised, or that the publication that has already taken place in New Zealand, to which I will refer later in this judgment, had caused safety issues.
Second, Mr Big techniques appear to be generally directed at cold cases featuring lone suspects.^"It is solitary persons who are relatively isolated or alienated that are most susceptible to the technique. They are attracted to the lure of friendship and a rewarding place in a criminal group, and they are particularly attracted to the prospect of protection from further investigation. Suspects who operate alone are less likely to be violent to a person they feel anger towards, than those in a group who have the comfort of numbers.

Third, I have accepted Inspector Berry's view that publication of the details of this case might lead some suspects in the future recalling these details after they have been approached by undercover police officers, and therefore becoming suspicious of the person befriending them. Given that in a Mr Big context suspects will be led to believe that there is a Police investigation of their guilt, it will follow that they will believe that they are being recorded and watched. In those circumstances it would be a very irrational act of a suspect to attack an undercover officer. They would know that their actions were being observed and that there would likely be immediate consequences of any attack. While I accept that suspects are often not rational, as I have said, there is no evidence of any such danger having emerged following an investigation.
When they are dealing with criminals, police officers inevitably assume a personal risk which must be taken seriously, but the risk is much less serious in a targeting operation involving many officers focused on a single suspect, than in comparison to a sole undercover officer or officers infiltrating existing criminal organisations.¹² While the identities of the undercover offers must be entirely suppressed, and if they were not their ongoing safety would be imperiled, I am not satisfied that publication of the details of Mr Reddy's case will be likely to lead to an officer's safety being compromised in some future investigation.
Thus, I find the criterion in s 205(2)(e) established (prejudice to Police techniques), but not that in s 205(2)(c) (danger to safety). The necessary prerequisite is established, and it is necessary to move to the second stage.

The second discretionary stage — should an order be made? Relevant international decisions

The Mr Big technique was developed in Canada and confessions obtained using the technique are admissible in that country.¹³ It has been used in that country at least 350 times. Some Canadian Mr Big operations have taken up to three years, including one involving 40 undercover officers, and another where 63 different

¹² R v Mentuck, above n 9, at [45].

¹³ Rv Hart, above n 6, and R v Mack 2014 SCC 58, [2014] 3 SCR 3.

scenarios were played out. Several operations in Canada are reported to have cost in excess of CAD$1,000,000 and one is reported to have cost CAD$4,000,000.

The legal tests are somewhat different in Canada because of the different constitutional provisions. Nevertheless, there as in New Zealand, a balancing exercise must be undertaken to weigh the likely prejudice to future investigations and Police safety on the one hand, and open justice and allied considerations on the other.
In R v Mentuck, the Supreme Court of Canada was required to decide whether a ban on publication of the operational methods of Mr Big scenarios was necessary in order to prevent a serious risk to the administration of justice,¹⁴ lacobucci J, giving the judgment of the Court, accepted that operations could be compromised if suspects learned that they were targets.¹⁵ The Court found it difficult to accept that publication of information regarding the techniques employed by the Police would seriously compromise the efficacy of a Mr Big operation.16 It held that a ban on publication would not produce "significant, compelling benefits" and it was concluded that, at most, such a ban would produce "speculative and marginal improvements in the efficacy of undercover operations and the safety of officers in the field".¹⁷
The Court went on to balance the effect of the curtailment of freedom of expression that would follow suppression, against any prejudice to undercover operations. It held: ¹⁸
A fundamental belief pervades our political and legal system that the police should remain under civilian control and supervision by our democratically elected officials; our country is not a police state. The tactics used by police, along with other aspects of their operations, is a matter that is presumptively of public concern. Restricting the freedom of the press to report on the details of undercover operations that utilize deception, and that encourage the suspect to confess to specific crimes with the prospect of financial and other rewards, prevents the public from being informed critics of what may be controversial police actions.

¹⁴

R v Mentuck, above n 9, at [32].

R v Mentuck, above n 9, at [43].

¹⁶ R v Mentuck, above n 9, at [43].

¹⁷ R v Mentuck, above n 9, at [48].

¹⁸ R v Mentuck, above n 9, at [50].

The Court went on to interpret the right to a "fair and public hearing" as meaning not only an open courtroom, but the right to have the media access that courtroom and report on the proceedings.¹⁹ The Court referred to the advantage of having public scrutiny of the details of Police operations, and the particular fact that an accused person who was acquitted might well wish to have the public aware of how the confession was obtained.²⁰ Ultimately, a one year ban on the publication of specific techniques that would otherwise be published was ordered, to protect ongoing operations, and the identity of the officer involved was also protected (although not indefinitely). A decision not to issue a ban for any further period was upheld.
It is clear that details of the Canadian cases are now routinely published. There is a lengthy article in Wikipedia on the topic under the entry "Mr Big (police procedure)" which sets out all the details of the Canadian operations.²¹ This entry is immediately accessible on the interne in New Zealand.
The Mr Big technique is also used in Australia, and the admissibility of confessions obtained through that procedure was upheld by the High Court in Tofilau v R.²² Prior to that decision, the Court of Appeal of the State of Victoria considered the issue of suppression of details of Mr Big operations in Re Applications by Chief Commissioner of Police.²³ The Court noted that the engagement of Police agencies in "sting" operations of a variety of kinds is well known and accepted by the community, and known to criminals. It was observed that such evidence is regularly given in open court. The Court considered that no reason had been advanced in relation to Mr Big operations that would justify a different approach.²⁴ In particular, the Court noted that a suppression order, would have no effect in the passing on of the details by criminals who had been subject to the technique or heard of it, as the threat of punishment for contempt would be no

¹⁹ R v Mentuck, above n 9, at [52].

²⁰ R v Mentuck, above n 9, at [54].

²¹ "Mr Big (police procedure)" (Page last modified at 23 March 2016) Wikipedia v R, above n 6.

Re Applications by Chief Commissioner of Police [2004] VSCA 3, (2004) 9 VR 275; 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] HCA 18, (2005) 79 ALJR 881.

²⁴ Re Applications by Chief Commissioner of Police, above n 23, at [47].

deterrent.²⁵ An application for leave to appeal that decision to the High Court of Australia was dismissed.

In the New South Wales Supreme Court decision of R v Simmons (No 5) no reference was made to the Victorian Court of Appeal decision of Re Applications 2004, or the Canadian decisions allowing publication.²⁶ The Judge decided to make orders suppressing the evidence because of a risk that investigations could fail if suspects became aware that they were dealing with undercover police officers, and because of the possibility of extreme and violent responses by suspects when they became aware that they might be dealing with a police officer." There was a reference to "other Judges" having suppressed similar material and to the fact that the use of the technique at least in New South Wales had not been previously published in so much detail.²⁸
I see R v Simmons (No 5) as being somewhat out of step with the other two appellate decisions. On balance, overall I assess the Canadian and Australian authorities as not favouring suppression.

Relevant New Zealand decisions

There have been approximately seven Mr Big operations in New Zealand. This is the second that has gone to trial. There have been no New Zealand decisions examining whether to suppress details of Mr Big scenarios following a trial.
There have, however, been numerous trials and decisions involving undercover operations in New Zealand, where confessions have been elicited as a consequence of some sort of Police deception.²⁹ Counsel have not found, and I have

²⁵ Re Applications by Chief Commissioner of Police, above n 23, at [421.

²⁶ R v Simmons (No 5) [2015] NSWSC 333.

²⁷ R v Simmons (No 5), above n 26, at [38].

²⁸ R v Simmons (No 5), above n 26, at [43].

²⁹ See, for example, the older cases of R v Teki (1989) 4 CRNZ 374 (HC); R v Davis HC Auckland T392/92, 3 September 1999; R v Darby HC Palmerston North T21/96, 6 December 1996; R v Mortimer HC Nelson T4/87, 7 July 1987 (in which Eichelbaum J refused a request from the Police to prevent cross examination of an undercover police officer in order to stop disclosure of details of the technique taught to and used by undercover officers on the basis that it might endanger the secrecy and lead to the identification of other officers engaged in similar activities); and the more recent cases Tai v R [2013] NZCA 521 and Kumar v R [2014] NZCA 489, (2014) 27 CRNZ 19.

not discovered, any New Zealand case where the details of an undercover operation designed to elicit admissions have been suppressed. It has, however, been the practice to grant suppression of the names and any details that might lead to the identification of the undercover officers, an issue not in contention in this application, and to make a standard pre-trial suppression orders to protect defendants' fair trial rights.

[51j In the other Mr Big operation that has gone to trial in New Zealand, R v Cameron, the Police had used a form of the Mr Big technique to elicit a confession from Mr Cameron.^30° The operation had many similarities to the operation conducted with Mr Reddy, although the Reddy operation appears to have been more extensive and sophisticated. There was no suppression of any evidence at the trial, or of the two Court of Appeal judgments which referred to the undercover techniques used. There were media articles that followed, still available online, which gave general details of the technique, but which did not go into great detail.³¹ There does not appear to have been detailed evidence of the pre-confession scenarios adduced in the trial.

[521 The Supreme Court decision R v X, as noted, contains a considerable amount of detail concerning Mr Big scenarios. The most extensive discussion is in the Chief Justice's judgment. In that judgment she refers to the details of the undercover operation generally over four paragraphs and then in detail over 31 paragraphs (nine pages). There is reference to various specific scenarios and then a very detailed account of the final Mr Big interview which goes through the way in which the officer developed the conversation, including extensive quotes from the undercover officer, as well as the defendant. Glazebrook J also refers to particular scenarios over a number of paragraphs in her judgment.

[53] The Supreme Court in that case by Minute asked the Crown whether more wide-reaching suppression orders should be made. The Crown did not make formal application for suppression of the details of the Mr Big operation submitting instead:

30 Rv Cameron HC Gisborne CRI-2006-016-3325, 19 August 2007.

See "Murder accused admits killing in secret video" Stuff.co.nz (online ed, New Zealand,
12 February 2008) and "Murder accused admits killing in secret" New Zealand Herald (online edition, New Zealand, 11 February 2008).

Subject to the outcome of the present appeal, however, the reasons for Collins J's order remain relevant. The detail of the individual scenarios is considered operationally sensitive, as Police wish to be able to use similar techniques in future. To what extent this detail is included in this Court's reasons is a matter for the Court.

At my request the Crown has filed a memorandum specifically addressing its position in relation to the publication of the judgment in R v X. It is accepted by the Crown that the Supreme Court decision on the pre-trial appeal will ultimately be available to the public when that trial has been finally disposed of. The Crown states that whether or not there will be any attempt to revisit suppression of that judgment, particularly of the detail regarding the Mr Big operation, will be a matter for the Crown Law Office. The Crown said "it seems highly unlikely that the detail will ultimately be suppressed given the Court's minute and Crown response ...".
In the High Court in R v X, Collins J ordered suppression specifically in relation to a document that contained summary details of the undercover operation, but made no orders as to long term suppression. There was the usual fair trial suppression order made pending final disposition of the trial, with an exception permitting publication on legal databases.
The Court of Appeal decision in R v X also contained the usual fair trial suppression banner, to last until final disposition of the trial. The specific orders made by Collins J in relation to the document were also stated to remain in force. In its judgment the Court of Appeal stated:
Collins J ordered suppression of certain evidence about the scenario technique pursuant to application made under s 205(2)(e) of the Criminal Procedure Act 2011. We have not been asked to revisit that order, which presupposes that evidence of the technique as used here should be suppressed in the interests of law enforcement. Such an order does not extend to reasons for judgment, although they may refer to some of the same evidence.
So far as this judgment is concerned, for fair trial reasons we make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the Internet or other publicly available database until final disposition of trial. Publication in a law report or law digest is permitted. If the Crown wishes to have any part of our reasons suppressed beyond that point it must make application.

[57] In a minute of 5 December 2014, the Court of Appeal recorded:

[3] Our judgment is not affected by the order made by Collins J under s 205 of the Criminal Procedure Act 2011. That order remains in force, but it cannot extend to our reasons for judgment. If the Crown wishes to have any part of our reasons for judgment suppressed after disposition, it will need to apply. We specifically reject Ms Markham's suggestion that publication of our reasons for judgment would breach the order made by Collins J to the extent that it covers the same material. We record that our reasons are to be published in the New Zealand Law Reports.

The Court of Appeal judgment also contained considerable detail about the undercover scenarios in that case.
The result of the lack of permanent suppression in the R v X case is that a substantial amount of information about the Mr Big scheme will soon become available to the New Zealand public. That information details not just the general outline of the Mr Big operation, but involves detail of the process used to get in touch with the target, details of the different scenarios and jobs which the target was involved in, and detail of the precise machinations used to set up the final interview. As noted, Elias CJ's judgment contains extensive detail of the final Mr Big meeting.
The facts of this case should not prejudice a properly directed jury in R v X, and should be able to be the subject of public discussion, alongside that case. It is difficult to see how the publication of the details of this trial are substantially more likely to alert suspects to an investigation, than the publication of details in R v X
The availability already of the R vX decision, and the fact that the Crown accepts that the details of the undercover operation will be thereby published, weakens the submission of the Crown that under s 205(2)(e) publication will prejudice investigative techniques. Such prejudice as may occur will happen in any event, once the media are able to report on the R v X decision. There is no reason why only the various decisions of R v X should inform the debate.
I note also that in the context of determining the admissibility of Mr Reddy's confession in this case, Woodhouse J made an order for standard pre-trial suppression and also made orders suppressing details of the Mr Big technique. He

observed at the end that the question of whether the orders should apply for the trial could be better assessed following the conclusion of that pre-trial hearing.³²

The competing concepts

As I have set out, the general scheme of ss 196-205 of the Criminal Procedure Act is to give priority to open reporting of criminal proceedings. In the Act, Parliament made obtaining name suppression more difficult. Associated with the basic principle of having open courts is the clear policy that criminal justice should be administered in public. I bear in mind the right to freedom of expression, which includes the right to receive information in s 14 of the NZBORA, and the right to a public hearing in s 25(2) of the same Act. I also bear in mind that s 5 provides that the NZBORA rights and freedom should only be subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
This must be measured against the specific provision at s 205 of the Act. Parliament clearly envisaged that there would be cases where, if the prerequisites were met, a Court would suppress the publication of evidence, despite these principles.

The factor in favour of suppression prejudice to Police investigations

The first step in exercising my discretion is to assess of the strength of the established prerequisite in s 205, in this case the prejudicing of Police undercover investigative techniques. I have found that, viewed objectively, it is likely that there will be some prejudice to the Police use of the Mr Big technique if there is publication of all the evidence in this trial. But I respectfully agree with the view of the Canadian Supreme Court that prejudice in such circumstances is limited. Even assuming a great deal of media coverage of the details, it is far from certain that any report of the scenarios will come to the attention of suspects who are likely to be the subject of Mr Big operations. Targets will tend to be lone individuals, not associates of criminal organisations who may be more streetwise and aware of Police techniques. Such suspects may not follow such media stories, and if they have, they

³² R v Reddy HC Auckland CRI-2014-092-11748, 14 March 2016 (Minute) at [4].

may in due course forget them, or fail to apply them to their situation. Our Courts repeatedly see Police techniques such as the monitoring or recovery of incriminating texts continuing to work, despite extensive ongoing publicity. The vagaries of public memory, and how the details of events are quickly forgotten, are factors not to be overlooked. This is reflected hi the fact that retrials can be held, sometimes in the same locations as the original trial, because any attendant negative or prejudicial publicity is presumed to have faded from potential jurors minds.³³ The collective memory of the public is subject to a "fade factor".³⁴

While in this electronic age past reports on proceedings can be recovered easily, that does not mean that it can be assumed that suspects will know about such available details. This is demonstrated in the fact that the existence of such material has not stopped the Mr Big techniques having continuing utility in Canada or Australia. As I have said, there is an extensive section in Wikipedia on the topic, and details of Mr Big scenarios can be easily accessed on the internet. All the Canadian decisions and publications are available online, as are many Australian cases and publications.
There are also details already available in New Zealand. Certainly Mr Reddy, and presumably other defendants in the other cases utilising this technique, were not alerted by prior publication of the facts of R v Cameron. In addition to R v Cameron, there has been publication in legal circles (and presumably to some in the criminal world) of details of the Police undercover operation in R v X. The general fact of the Police through undercover officers in staged criminal scenarios gaining Mr Reddy's trust and ultimately his confession is also already very well publicised.
As I have outlined, there will be full publication of many of the relevant details of an undercover operation such as this following the trial in R v X when the media will be able to publish all the details from the Supreme Court decision. Thus,
See, for example, Craig Burgess, "Prejudicial Publicity: When Will It Ever Result in a
Permanent Stay of Proceedings?" (2009) 28 U Tas LR 63 at 69.

34 R v Bain HC Christchurch CRI-2007-412-000014, 7 May 2008 at 1441 (pointing out, in that context, that ongoing prolonged publicity surrounding the Bain trial had not allowed time for the collective memory to fade).

much of the prejudice that the Police emphasise as likely to arise has already occurred, or will occur in the near future.

Because this case has attracted particular media attention, I accept that there will be particular focus on the Police techniques if the suppression is removed, which is why I have accepted there is prejudice in terms of s 205(2)(e). However, for the reasons given that prejudice will be limited. I doubt whether the damage will be long term, just as publicity did not cause long term damage after R v Cameron, and just as publicity does not appear to have crushed the procedure in Canada or Australia.
I note also advice from the Crown that there are at present no ongoing Mr Big operations, although the technique is likely to be used in the future. There can be no immediate damage to an investigation if there is publication.

The factors against suppression

1 must balance this limited prejudice against the principle of open justice and the right to receive information and for criminal trials to be in public. These are powerful concepts which remain relevant despite the exception created by s 205.
It is a factor that must weigh against suppression, and in favour of full open publication of the details, that the propriety and acceptability in New Zealand of the Mr Big scenario as a Police tactic is a matter of debate in Canada and Australia, and a matter on which reasonable minds can differ. The Supreme Court decision that Mr Big scenario confessions are generally admissible was by a majority of three to two, overturning a unanimous Court of Appeal that would not have admitted the evidence because of the use of the Mr Big technique. Collins J in the High Court had only determined the confession to be admissible because he considered himself bound to do so by the Court of Appeal decision in R v Cameron.³⁵ This division in judicial thinking indicates that the debate on the use of such techniques should be able to proceed in public with all the relevant facts available. The detail is important to a meaningful and adequate scrutiny and discussion about the acceptability of the
Rv X [2013] NZHC 3260 at [1241.

technique. The need for public debate has been a significant factor in the balance coming down in favour of publication in Canada.

The other factor, which weighs significantly against suppression, is the frequent closed Court sessions that follow, requiring victims and family to miss parts of the trial, and preventing them following fully the ebb and flow of submissions and evidence. The practice adopted throughout this trial, without opposition from any party or the media, was that whenever there was reference to details of the Mr Big operation the court was cleared and became closed. This meant that the public gallery, which generally featured at least seven or eight family members of the victims, would have to be cleared. This occurred throughout both the openings and the hearing of the evidence. This was a cumbersome procedure, although it did not greatly delay the trial and did not pose a major administrative burden.
There is, however, a concern that must arise when members of the public are obliged to frequently leave their seats and miss critical parts of the evidence. It cannot be easy for grieving family members to undergo this process repeatedly. If the Crown submissions prevail, and there are suppression orders made of the undercover details in this trial, and for other trials, this procedure will have to be adopted on occasions in the future. In my view, it is not a desirable procedure for members of the public who have a genuine interest in the proceeding to hear only part of the story, and to be repeatedly asked to leave.
The alternative of allowing those in the public gallery to stay while suppression orders remain in place is equally unsatisfactory. Inevitably the security of any suppression orders is weakened if members of the public are able to hear the suppressed material, even if they are told it is not to be repeated outside the courtroom.

Conclusion

Thus, the quite limited prejudice to the ability of the Police to conduct Mr Big operations if there is publication, is in my assessment considerably outweighed by the advantages of a fully public trial, and uninhibited publication of the details of the Police techniques. What is imperative is the effective suppression

of the identity of the undercover officers involved, but that will be achieved by particular suppression orders.

Result

The interim suppression I made is terminated, and I decline to make any suppression orders concerning the details of the Mr Big operation. Suppression orders relating to the undercover officers and any details that might lead to their identification remain in place.
I do, however, make an interim suppression order of the details of the undercover operation on the same terms as the previous suppression, to last for five working days to give the Crown an opportunity to make any applications if it wishes to do so.
I do not propose making any suppression orders in relation to this judgment, but will make the same interim suppression order for five days, again to give the Crown an opportunity to make any applications that it may wish to make. Accordingly in that interim period, while this judgment will be sent to the parties and the represented media organisations, there is to be no publication.

•

Asher J

Appendix A

In 2013, the defendant was identified as a suspect in a Police investigation
into the disappearance of Pakeeza Yusuf and Juwairiyah Kalim and an undercover operation targeting the defendant was initiated in April 2014,
The purpose of the undercover operation was to establish the involvement of
the defendant, if any, in the disappearances of Pakeeza and Juwairiyah.
Although the undercover operation began in April 2014 and ran until October
2014, it only involved undercover officers interacting with the defendant in person on 39 different days.
The undercover operation was of a type known in New Zealand as the Crime Scenario Undercover Technique. The technique is also variously referred to as the "Mr Big" technique or the "Big Boss" technique.
The CSUT involved an undercover officer being introduced to the defendant
and that officer gaining the defendant's trust through their joint participation in a series of staged criminal activities.
The defendant was led to believe that the undercover officer he was
associating with was a member of a successful criminal organisation.
Other undercover officers were also involved and were introduced to the
defendant as being members or associates of the same criminal organisation.
While no criminal offences were actually committed by the defendant or any
of the undercover officers, the defendant was led to believe that he was participating in real crimes.
Interactions between undercover officers, the defendant and members of the
public were kept to a minimum during the course of the CSUT.

Mr Reddy was paid small amounts of money by undercover officers for his participation in the staged criminal activities.
The staged criminal activities took place at a number of different locations around New Zealand.
At the end of the operation, Mr Reddy made a number of admissions to undercover officers, including to an undercover officer purporting to be the head of the organisation [the Crown does not seek suppression of any of the details of the defendant's admissions].
The CSUT has been used in New Zealand on six other occasions since 2006.
Similar techniques are used in other jurisdictions, including Canada and Australia.
The CSUT is used only in respect of the most serious criminal allegations and only as a last resort, where other investigative techniques have failed.
Use of the CS UT in every case must be authorised at the most senior levels with the New Zealand Police.
The present case was the first in New Zealand in which detailed evidence as to the CSUT was put before a jury.