‘Race of the rats’
New Zealand is finally attempting to deal with the problem of jailhouse snitches, known to have caused hundreds of wrongful convictions worldwide, but repeatedly used in our courts. However, as Mike White discovers, critics say proposed new guidelines wil
In August 2019, Crown lawyer Annabel Markham rose to her feet in the Supreme Court and seemed to argue black was white. In front of five judges, she held that the evidence of a man with two aliases and 61 convictions for dishonesty offences was reliable.
She supported the claims of a man described by a psychologist as showing a clear pattern of ‘‘manipulation and fraudulent behaviour for his gain’’, and by a judge as someone of ‘‘repeated dishonesty throughout your life’’.
Her iPad at hand, buttressed by piles of paperwork, Markham also argued for the evidence of a man with more than 500 fraud convictions to be accepted. And another with 53 dishonesty convictions. Then another with 32, and yet another with 19.
And a woman known as a prolific fraudster, with all but one of her 75 convictions being for dishonesty.
Surrounded by a lattice of silver beech panels lining the vaulted ovoid of our country’s highest court, Markham stressed that the testimony of these known liars against an alleged murderer was cogent and trustworthy enough to be heard by a jury.
The countless times her counterparts had, over the years, stood in other courts and thundered that these witnesses were fraudsters and fabricators of the worst kind, deserving imprisonment, barely echoed at that moment. This time they might be telling the truth, Markham suggested.
Most of the witnesses were variants of prison informants or ‘‘jailhouse snitches’’, who have controversially infused court proceedings for decades, here and overseas, by claiming an accused person confessed to murder, or said something incriminating, while in prison.
While the accused’s lawyer argued the witnesses were unreliable and should be prevented from testifying at trial, Markham noted there were checks and balances to avoid their evidence causing wrongful convictions.
Moreover, the solicitor-general was creating guidelines for how such evidence should be used, she said. For most in the courtroom, this was news.
Until then, prison witnesses had been virtually unregulated in New Zealand. If someone came forward claiming a fellow inmate confessed to them, it was left to police and prosecutors as to whether they were used.
Nearly always, they were.
Now, almost two years later, the solicitor-general has finally released the proposed guidelines Markham mentioned – two pages of general recommendations, about vetting prison witnesses and their evidence.
These include reviewing the inmate’s motives; any inducements or offers made to them; the plausibility of their evidence; the witness’s character and conviction history; and whether they had an opportunity to concoct a false story.
But while some see these as added safeguards against inmates making false accusations, others argue they merely entrench corrupt deals that have no place in our justice system. Moreover, the critics say, the new rules will in fact lead to more wrongful convictions.
The system, essentially, works like this. Someone has been accused of a crime, generally murder. While they’re in jail, awaiting their trial, another prisoner comes forward claiming the accused confessed to committing the crime.
In return for this information, the prisoner may receive a number of benefits: a reduced jail sentence; supportive letters to judges or the Parole Board; better prison conditions; and even financial or material help in some cases. They’re always allowed to keep their names hidden from the public.
But, of course, doing such deals raises enormous potential problems – are these prison witnesses telling the truth because they’re suddenly seized by civic duty and now want to be honest citizens? Or are they selfinterested conmen who’ve been given a tempting incentive to lie?
The use of jailhouse snitches in New Zealand goes back decades.
Two surfaced in the Crewe murder case in the 1970s: the subsequent royal commission into Arthur Allan Thomas’ wrongful conviction describing one as ‘‘mentally ill’’, the other as ‘‘shrewd, cunning, devious and manipulative, and a man who would go to considerable lengths to shorten his sentence,’’ and their combined evidence as ‘‘a tissue of lies’’.
Few high-profile cases make it to court without a snitch offering to testify that the accused confessed to them while they were together in prison.
One appeared in Mark Lundy’s retrial, two at Scott Watson’s trial, and three when David Tamihere was accused of murdering Swedish tourists Heidi Paakkonen and Urbin Hoglin.
Tamihere remembers that as soon as one of the jailhouse witnesses gave evidence, he knew he was sunk, because the snitch came up with details so horrific the trial had to be halted when a jury member was physically sick.
More than 25 years after Tamihere’s conviction, another of the secret witnesses, double murderer and sex offender Roberto Conchie Harris, was convicted of perjury for the evidence he gave at Tamihere’s trial, and jailed for eight years. (Tamihere’s case has been referred back to the Court of Appeal.)
Eight informants, including some of New Zealand’s most horrendous and notorious criminals, lined up to testify against Stephen Hudson, who was charged with murdering Nicholas Pike.
The number was unsurprising, given police actively canvassed jails for information against Hudson, approaching 300 prisoners, while dangling a $50,000 reward in front of them.
Teina Pora had only one jailhouse witness come forward against him, a man with serious convictions for dishonesty and violence, to whom a senior policeman had given a $150 loan.
A judge who reviewed the case after Pora was exonerated of a murder for which he spent more than 20 years in jail concluded there was ‘‘good reason to doubt both the integrity and reliability’’ of the witness.
Testimony from jailhouse witnesses is internationally recognised as among the most dangerous evidence a court can hear. Despite knowing the witnesses are disreputable and potentially deceitful, most research shows jurors accord it the same weight as videoed confessions to police.
In the United States, more than 140 people convicted of murder after snitches gave evidence against them have been exonerated by DNA evidence.
Such evidence is one of the four leading causes of wrongful convictions, along with eyewitness misidentification, faulty forensics, and false confessions.
In New Zealand, these other three areas have extensive legislation and orders regulating them.
However, remarkably, the use of prison witnesses has had nothing specific controlling it until now.
Christopher Stevenson, co-chair of Defence Lawyers Association New Zealand, says the situation has been a judicial Wild West, with appearances by snitches seemingly endemic in murder trials, especially where the police case was weak.
‘‘In the last four consecutive murder trials I’ve had, there’s been somebody from prison claiming a confession. Every single case.
‘‘What are the chances all of those unrelated people around the country independently confessed? Or is there a more likely answer – that prisoners know there’s a system, and they’re playing it?
‘‘If you claim, whilst in custody, somebody confessed to a big-time crime, then you’re going to get significant benefit, typically liberty, which is the greatest benefit an inmate can get.
‘‘It means you’ll get a deal on pending charges, you’ll get assistance with parole, or you’ll get time off a sentence. So that’s the system.’’
Stevenson says there are often ‘‘conga lines’’ of prisoners offering evidence in big cases.
‘‘It’s sometimes described as the ‘race of the rats’ – whoever gets in first gets the best deal.’’
These deals done by police and the Crown with prison witnesses are an international embarrassment, Stevenson says, slurring the integrity of our justice system, with New Zealand lagging far behind other countries in regulating their use.
However, the proposed guidelines for prosecutors from Solicitor-General Una Jagose are ‘‘completely ineffective’’, he believes.
‘‘This is an opportunity to be bold, to draw a line, and effectively stop this sort of evidence coming through our courts.
‘‘But these are really guidelines on how to continue to use this sort of evidence, as opposed to guidelines that would exert any control on witnesses known to be, almost without exception, lying.’’
Overseas jurisdictions have judges or independent panels, assessing the reliability of snitch evidence, before it ever gets put before a jury. New Zealand’s proposed guidelines simply leave that decision in the hands of Crown prosecutors.
But Stevenson says this is a marriage of convenience, as snitches are an incredibly useful tool for the Crown, and there is little incentive for prosecutors to question their allegations. ‘‘Jailhouse informants are devastating to a defendant. It’s almost a surefire conviction in any case when you’ve got one of these witnesses. It helps get convictions, but it corrupts the search for the truth.’’
Even if these witnesses were caught out lying, ‘‘it doesn’t matter, there are no consequences, there are only benefits – it’s an extraordinary situation’’, says Stevenson. (Conchie Harris wasn’t prosecuted for perjury by police, but in a private prosecution by fellow prisoner Arthur Taylor.)
If the new guidelines aren’t significantly strengthened, Stevenson warns ‘‘there will be miscarriages of justice, and innocent people will be ensnared by these liars’’.
‘‘You have to have an intensive, independent review of these people and their backgrounds any time they put their hand up.
‘‘Because the idea people are regularly, randomly confessing to strangers in jail is preposterous. It’s an affront to commonsense. So the presumption has to be that it’s lies.’’
Stevenson says the only time their evidence should be taken seriously is if the snitch says the accused told him where the body or murder weapon was, and police then find these.
‘‘Every time I face another case with these witnesses, I feel part anger, part dread, and part exhaustion.
‘‘Anger that we’re using this rubbish in New Zealand.
‘‘Dread that the person will probably be convicted because of this, whether they’re guilty or not – forget the trial.
‘‘And exhaustion because I know I’m going to have to go through all of the background that hasn’t been reviewed by police and the Crown, before they decided to call this witness.
‘‘In any guidelines, the starting point should be, we’re pretty much not calling these people. We know enough about this.
‘‘We know these people are generally lying. Why are we waiting for more miscarriages of justice to happen?’’
The debate over jailhouse witnesses came to a head recently when two appeals about their use made it all the way to the Supreme Court.
One was the case of David Roigard, convicted of murdering his son, Aaron.
Two prison snitches had claimed Roigard confessed to the killing.
One, ‘‘W’’, had 112 convictions, including 64 for dishonesty. For his evidence, his sentence for dealing methamphetamine and unlawful possession of firearms was ultimately reduced to 10 months’ home detention.
The other prison witness, ‘‘F’’, had 130 dishonesty convictions, and others for violence. He approached police saying he wanted a ‘‘deal’’ on charges he was facing, which included kidnapping, in return for saying Roigard confessed to him.
His sentence was subsequently cut from more than four years in jail to just two, and he received a letter of support from police for his parole hearing.
In the Supreme Court’s judgment on Roigard’s appeal against his conviction, Chief Justice Dame Helen Winkelmann said ‘‘F’’ was clearly ‘‘a person who is experienced at creating complex and plausible false narratives and will go to great lengths to do that’’, noting he had continued to lie even when in the witness box at Roigard’s trial.
‘‘He is a liar who is skilled at manipulating others . . . it may be concluded that he is a compulsive liar.’’
However, Winkelmann and her four colleagues all allowed the claims of ‘‘F’’ – that Roigard had blurted his guilt to him – to remain as cogent evidence.
Roigard’s lawyer, Robert Lithgow, QC, says this and other court judgments simply encourage the police and Crown to continue buying witnesses and their pernicious and poisonous evidence.
Jurors treat this evidence like a horoscope – they know it is probably rubbish, but if it contains something they want to hear, they use it to justify their decision.
Lithgow alleges the judiciary is also complicit in this corruption of the justice system.
By rewarding snitches with reduced sentences for their claims, judges are ‘‘running the court and the gift shop as well’’.
’’Can you have a fair trial if the state is allowed to call paid fraudsters to give unverifiable but devastating evidence?’’ Lithgow asked the Court of Appeal during Roigard’s case.
Nothing in the solicitor-general’s draft guidelines on prison witnesses would do anything to confront this problem, Lithgow says.
‘‘All they propose is a self-justifying list of matters to ‘consider’, but no leadership or principled guidance, that rewarding fraudsters – who’ve had nothing first-hand to do with the case – to tell stories about other inmates, is inherently corrupt.
‘‘And the blame for that sits squarely with the Supreme Court, who’ve repeatedly condoned the practice – a practice that’s available only to the police and Crown.’’
Given the higher courts have no coherent approach to dealing with the problem, ‘‘only Parliament can stop this slow cancer’’, Lithgow says.
Justice Minister Kris Faafoi did not respond to Stuff’s request for an interview. However, his predecessor, Andrew Little, labelled prison witnesses ‘‘abject liars’’ and ‘‘notoriously unreliable’’, and their evidence ‘‘highly suspect from the outset’’.
The solicitor-general and Crown Law declined to be interviewed on the issue of prison witnesses or the proposed guidelines.
But in a written statement, Elizabeth Underhill, executive adviser to the solicitor-general, stressed there were a series of checks and balances to guard against false testimony by inmate witnesses, which the new guidelines would expand and strengthen. General guidelines for prosecutors about witness credibility already existed.
Evidence about any inmate witness’ claims had to be disclosed to the defence, allowing challenges to its admissibility and also crossexamination of the witness in court.
Moreover, judges had gatekeeping roles, and could give the jury directions about such testimony.
Underhill accepted there was understandable concern about the potential unreliability of such evidence. ‘‘However, defendants can and do make incriminating statements to fellow inmates.’’
One of the things the solicitor-general recommends is that prosecutors check whether potential prison witnesses have given similar evidence before, via a witness register kept by police. This could help raise red flags that particular prisoners were habitual confabulators.
Even the Supreme Court has called for records of prison informants to be kept, as happens in many jurisdictions overseas.
But there is no such register. Police have never kept one.
However, this week, police confirmed they were in the ‘‘scoping phase’’ of developing an inmate witness register, and were working with Crown Law about what information should be included on it.
It’s a fundamental tool that Auckland University associate law professor Scott Optican says is missing from our system.
However, creating some form of written guidelines was a start.
‘‘Well, it’s better than what they had before – which was nothing. I think we were due to have this discussion a long time ago. But better now than never, right?’’
Optican says the overwhelming approach to jailhouse witnesses until now has been to let them in, and let the jury sort out if they are honest.
But jurors are ill-equipped to discern how reliable a witness is, and he favours some form of pre-trial hearing, triggered whenever the prosecution seeks to use a snitch.
‘‘Look, would you rather have guidelines or not? The answer is, yes. Would you rather have reasonably detailed guidelines that are based on Supreme Court case law, which these are? And the answer is, yes.
‘‘Would you like to have an independent check on this, in addition to the guidelines? The answer is probably yes.’’
Optican says the whole murky world of prison informants needs some ‘‘self-conscious reflection’’ by those involved in using them.
‘‘And I would hope these guidelines cause them to take a harder look at the use of this testimony.
‘‘And in taking a harder look, they should use less of it.’’