Informants no quick fix

by Chris Griffith
Published 17 January 1993 in The Sun-Herald


my face


When one door closes, another one opens. That is the danger now facing Queensland's criminal justice system.

It is commendable this state has introduced the audio taping and video taping of confessions to counter the police verbal, the lazy and corrupt habit of police fabricating confessions as a short-cut to proper investigations.

But as one door closes, another surely opens.

The incidents of criminal informants who claim to hear the confessions of people in watch houses and prisons is growing. So much so, that the NSW Independent Commission Against Corruption (ICAC) has launched an investigation into the practice and expects to release its report on January 27.

The ICAC's investigation, code-named Koa, began because of the growing number of prison informers as key witnesses in NSW trials and the allied concern about the granting of indemnities.

One noteworthy case investigated by ICAC was Operation Raindrop. It resulted in charges against seven police following allegations by two prison informants. However no charges eventually stuck.

In Queensland the granting of indemnities and the use of prison informants has too been a dubious practice. Operation Trident saw the amazing act of an indemnity being granted to police informant Tony Riesenweber in advance of the alleged crimes he was to commit.

Of course, this state's most notorious informant is Jack Reginald Herbert, whose evidence at the Fitzgerald Inquiry and subsequent trials has sometimes been important, sometimes inconclusive.

Our state's Criminal Justice Commission (CJC) is awaiting the ICAC report before deciding what interest it will take. The Carter Report into Trident and the CJC's Police Powers' review will address at least the indemnity issue.

Of course, no one denies that prison informants are a vital source of information for police. Well connected prisoners know al ot about unresolved crimes.

However their use as initial reference points for clues and hints is a totally different matter to their use in trials as lead witnesses, particularly where there is no corroboration.

In Queensland, an accused can still be convicted on the uncorroborated evidence of a prison informant provided the judge warns the jury about the danger of accepting the evidence.

The Queensland Council for Civil Liberties believes this is not tough enough. The fact this uncorroborated evidence can still secure a conviction is a loophole the Council believes is now being exploited.

The danger lies in the fulfillment of a mutual need. A police officer who needs a conviction, and a prisoner wanting a concession for a confession.

Indemnities against further prosecution, a more lenient sentence or prison security classification, transfer to another jail, or simply a break in daily routine are incentives for prisoners to trump up false confessions against fellow inmates or even those on the outside.

In her submission to the CJC's Police Powers review, the Prisoners' Legal Service co-ordinator Mary Burgess said hard drugs and gifts of consumer goods by investigators had been offered to prison informants in Queensland prisons in the past.

She said the incentive for a prisoner to inform had to outweigh the dangers these inmates faced as known informants in prison and later in the community.

The submission outlined the case of a prisoner, who when denied parole, provided evidence of drug-related activities to police. The decision to deny parole was reversed two days later.

Among the most notorious prison informants is Ray Denning, who in 1989 claimed wrongly- convicted Hilton Hotel bomber Tim Anderson had discussed the bombing with him in jail in 1979. Denning's evidence was discredited and he has been examined by the ICAC.

In his book Take Two Anderson devotes a chapter to Denning and the incentives and benefits he believes Denning had received. The credibility of Denning as a prosecution witness has featured in other cases including a High Court appeal by Roy Pollitt against his murder conviction in Victoria.

In Queensland there are cases which show the use of prison informants can be dubious, for example the Elzawr murder trial and two resultant trials. In 1989 the prison informant Paul Anthony Shaw gave evidence that Atef Elzawr had confessed to murdering his wife and had asked for help in manufacturing an alibi.

However at Elzawr's trial two other prison informants, Warren Jamieson and Mark Cougan, gave evidence contradicting Shaw. It was the battle of the informers and Elzawr was acquitted. Jamieson and Cougan then changed their stories and confessed to conspiracy and perjury at a second trial. The Crown then brought fresh charges against Elzawr of conspiracy and perjury and again used Jamieson, now a convicted perjurer, as its main witness.

Elzawr was eventually cleared of all charges except one which the Court of Appeal ordered to be retried. The Crown decided not to proceed. Jamieson's testimony had not stuck. Yet Jamieson again provided confessional evidence at the 1992 trial of Neil Aston, convicted of the prison murder of Scott Wallace.

The question is when does the prosecution or defence stop using the same informants over again, particularly once their evidence has been discredited or they have been convicted of perjury.

The fact many barristers say the same prison informants are used over again in trials by the same police is an issue that must be addressed in Queensland.

So far, there are few public guidelines as the use in Court of prison informers. Our state's prosecutors do not have them. One prosecutor told me the use of informants is judged on a case-to-case basis.

The Police too have not issued publicly their guidelines for dealing with informants, however police say they are included in the police manual.

The Queensland Corrective Services Commission says it has established an intelligence section for analyzing and evaluating the many claims it receives from prisoners in its care. The Commission's Assistant Deputy Director, Mr Ian Stewart, is adamant that informants do not receive rewards such as privileges or favourable reclassification. Any reclassification, he said, was based solely on an examination of a prisoner's behaviour.

Mr Stewart said the only exception was when informants' lives were in danger and were afforded protection status. Special units now existed at prisons including Townsville, Moreton, Rockhampton, Lotus Glen, and the Arthur Gorrie Correctional Centre.

And the Attorney-General, Dean Wells, in 1990 released new guidelines for the issue of indemnities to criminals.

Yet despite tighter controls by the Attorney-General and the Corrective Services Commission, the scope still exists for prison informants to be rewarded with a more lenient sentence, and in particular a recommendation for early parole.

One police officer said police could recommend leniency at the sentencing stage to informants who had been useful in other trials.

In the end, however, it is up to the judge.

Whether we have a justice system where the punishment fits the crime, or a system where justice is sometimes bargained akin to the tourist markets in Bali is something that should be an issue in Queensland in 1993.