Undercover police officers, posing as gangsters, lure a suspect into joining their "gang". However, to become an official member of that gang, the suspect is tricked into proving their trust and loyalty to Mr Big, the gang's ultimate boss, by confessing to a serious crime they have committed. Once the confession is extracted, the suspect is arrested and that confession is used as evidence against them at trial. This article analyses Mr Big operations through the public policy lens of s 138 of the Uniform Evidence Act. This provision confers discretion upon the court to exclude evidence obtained illegally or improperly. As a matter of public policy, as distinct from an individual's right to be treated fairly, this article argues that Mr Big operations are contrary to the minimum standards of acceptable police conduct. That argument is made in this article on the basis that Mr Big operations improperly subvert the right to silence.
Australian police and prosecutors use surveillance recordings of conversations, events, and telephone calls to investigate, prosecute, and prove serious criminal offences. Some of those recordings contain coded and ambiguous language, which is often used by criminals to disguise or conceal the topic of conversation. Prosecuting authorities often adduce evidence from police officers who claim expertise in identifying and interpreting conversations containing codes and ambiguous language. This article analyses the current approach to that evidence. It argues that courts do not have a complete concept of police-witness expertise and apply Australia's admissibility framework to their testimony inconsistently. In particular, I criticise the courts for failing to distinguish between the different types of evidence police-witnesses give, and for neglecting the conscious and unconscious role of contextual information in police-witness efforts to identify codes and attribute meaning to communications.
The Queensland, New South Wales and Northern Territory Governments passed "Post and Boast Laws":these laws created a standalone offence for offenders who make social media posts that brag about having committed certain specific criminal offences. The South Australian and Western Australian Governments are currently considering implementing a similar law. However, there is no evidence to show that Post and Boast Laws are likely to be effective, and judicial officers can already take social media posts that discuss a crime that the offender committed into account in sentencing. This article suggests important changes to the Post and Boast Laws so that they result in less posts that brag about crime on social media and governments use education and diversionary measures to try to prevent young people from making these posts. This is the first scholarly article, to the author's knowledge, that examines this very important and controversial issue.
Perceptions of effective cross-examination of children sit on a spectrum as long as the bar tables that dominate adversarial courtrooms. At one end are views that "best-practice" cross-examination is whatever creates reasonable doubt; at the other are views that children can, and should, always be questioned in developmentally appropriate ways with the child's wellbeing the priority. The present study explored this concept of "best-practice" cross-examination via interviews with judges, prosecutors, defence barristers, and academics. Participants unanimously acknowledged that definitions of best-practice crossexamination are complex, impacted by factors such as the rules of evidence and procedure; practitioner's skills; duties owed to the court and client; and recently introduced special measures. Nevertheless, participants agreed there was substantial opportunity for skilled practitioners to challenge children's evidence without exploiting their limited cognitive, emotional, and social abilities.
Over 100 years ago, Australian jurisdictions enacted rights to criminal appeals by copying those previously established in Britain. More recently, most Australian jurisdictions have enacted rights to a second or further appeal. In doing so, they adopted the wording from provisions which had been used to allow prosecutors to retry a person after they had been acquitted. In both cases, the copying of the earlier provisions failed to take account of important differences between the context in which they were initially enacted and the context in which they were later adopted. This has led to unfortunate consequences. Britain has gradually simplified the criminal appeal provisions and established a Criminal Cases Review Commission. Australia retained the initial confusing appeal provisions and added greater complexity and variations through the adoption of the additional appeal rights. It has no review Commission. It is time for a rethink on Australian criminal appeals.
