REVIEW OF THE VICTORIA POLICE WITNESS PROTECTION PROGRAM Report of the Director, Police Integrity July 2005 Ordered to be printed Victorian Government Printer Session 2003 - 2005 P.P. No.145 To The Honourable the President of the Legislative Council and The Honourable the Speaker of the Legislative Assembly Events last year and this have drawn to public attention the danger faced by some witnesses who give evidence in criminal trials or who are to do so. Upholding the criminal law and maintaining civil order depend to a very large extent on the preparedness of witnesses to give evidence to the court: if there is no witness, there can generally be no prosecution. The integrity and efficiency of our system of witness protection is important. It is a duty of the justice system to protect witnesses; only rarely may they need protection against the ultimate violence of murder, but any intimidated witness, too frightened to speak out fully and truthfully, undermines the cause of justice. Apathetic witnesses and witnesses who fear the system of justice itself are also of concern. In response to the increased attention on witnesses and acting under new powers to conduct an investigation on my own motion, I initiated a review into the Victoria Police Witness Protection Program under s.86NA of the Police Regulation Act 1958. This Report describes the findings of that review and sets out recommendations for reform. I present it to the Parliament pursuant to s.102J(2) of the Act. The immediate future – given current trends in serious and organized crime – suggests an increase in demand for Witsec services. Preparation for such needs should be made now. This review has found that while Victoria’s current Witness Protection Program is basically sound, more resources are required along with some important policy and procedural changes. The Force itself undertook a review of Witsec last year to address a number of challenges faced by the Program and the Unit responsible for its operation. Already there have been some organisational and procedural adjustments. Witnesses are not just a police responsibility. Improvements in the handling of witnesses and attitudes towards being a witness will take time and effort. Given the will on the part of Police Command, and with the support and encouragement of Government, immediate shortcomings could be remedied and longer-term change initiated. Within the context of the overall police budget, all the funds required for Witsec’s enlargement and reform would be modest. The high rate of return on such an investment should commend itself to a public where there is rising concern about the effectiveness and integrity of parts of the justice system. G E Brouwer DIRECTOR, POLICE INTEGRITY CONTENTS 1. INTRODUCTION ...........................................................3 2. WITNESS PROTECTION – A BRIEF HISTORY ............................5 3. “NO WITNESS – NO JUSTICE” .......................................... 6 4. WITNESS PROTECTION – “ALL IN” OR “ALL OUT” ......................10 5. LEGISLATIVE BASIS FOR THE PROTECTION OF WITNESSES ......15 6. ENTRY INTO WITNESS PROTECTION ..................................17 7. ON THE PROGRAM .......................................................27 8. THE COURTS AND THE LEGAL PROCESS .............................34 9. PROTECTION, PAYBACK AND REHABILITATION .....................39 10. MANAGEMENT ............................................................41 11. TRANSPARENCY AND ACCOUNTABILITY .............................44 12. CONCLUSION .............................................................46 Appendix: Three case studies ........................................48 Bibliography ..............................................................53 1 2 1. INTRODUCTION In any general discussion of the administration of criminal justice, witness protection would seldom be an early topic raised. It is more likely to be regarded among the necessary administrative nuts and bolts, but not demanding deep attention in its own right. Far more readily discussed are likely to be (to name but a few): crime statistics; policing and detection; conviction rates; penal policy, sentencing and rehabilitation of offenders; youth crime; court proceedings and evidentiary matters; civil rights of citizens and legal representation. In a democracy such as Victoria, law enforcement proceeds according to strict legal principles and rules, and usually by way of hearing or trial in open court. Whether a case proceeds – indeed, whether a prosecution even begins – depends on the existence of evidence: some basic testimony of substance and apparent veracity which can be tested under cross-examination. Evidence usually comes before the court through the words of witnesses who may, if necessary, be compelled to attend; they are sworn, under heavy penalties, to tell the truth. The testimony of witnesses thus lies close to the start and to the heart of the exercise of the criminal jurisdiction. Whether it be the Magistrates’ Courts, the County Court or the Supreme Court, it is broadly true to say: “No witness: no prosecution”. It follows that any force or influence which may prevent witnesses from appearing in court, or which may make them reluctant to speak with full candour, or which promises them a reward for (say) concealing part of the truth, must tend to pervert the course of justice. Such circumstances could lead a court to reach a wrong decision; people may be acquitted of offences which they have indeed committed; innocent persons may be convicted, or left to live under a cloud of suspicion. The public loses confidence in the effectiveness and fairness of the courts. The tainted evidence of a witness who has been tampered with, or testimony which has been withheld, strikes at the integrity of the foundations of justice. Such abuses can never be tolerated by any society which aspires to good governance. From earliest times, English law has treated subornation of witnesses – any attempt to silence, or to change the story they will tell the court – as a grave offence deserving severe punishment. It remains a crime not lightly regarded by any court. 3 There are concerns that attempts at subornation are increasing. Some observers would say that powerful and wealthy organized crime groups regard it as a standard weapon in their anti-social armoury, to be used as a matter of course whenever the need arises. There is evidence, too, pointing to its use by corrupt police officers. Witnesses who are required to give evidence in criminal proceedings can potentially be at risk from unscrupulous persons who fear honest information being heard by the court. Witnesses may be threatened with death or injury; hints of threats – sometimes no more than hints – may be directed against the witness’s spouse or children; property may be damaged or threatened; and their future reputation may be set at risk. The law requires that witnesses be protected simply as citizens, not merely because of their usually brief role as witnesses. That many witnesses at risk themselves have serious criminal records does not weaken the case for their protection. In practice, protection may take the simple form of special vigilance by the police with (perhaps) the conspicuous “drive-by” appearance of a police car from time to time in the witness’s street. At the other extreme, it may require a whole family to be provided with a new identity, from birth certificates to current passports, and resettled overseas. Such operations require extreme finesse, and delicate liaison with a multiplicity of official and private bodies both Commonwealth and State, and with like organizations overseas. In Victoria, the Witness Protection Act 1991 empowered the Chief Commissioner of Police to provide safety and support for witnesses who stood in need of it. The fourteen years of the Act’s operation have seen many developments, not all of them encouraging. Similar Acts are now in force in other Australian states, providing comparative information which has been considered in this review. Useful material has also been gathered from jurisdictions overseas – notably from Britain, Canada, New Zealand and the United States. Beyond doubt, the time is ripe for a fresh appraisal of Victoria’s own experience, and of the lessons we may be able to learn from elsewhere. If this point needed emphasis, it was starkly supplied by the murder in Melbourne last year of two intended witnesses in an important criminal trial – Terence and Christine Hodson – in their own home. Part of the prosecution case collapsed with their deaths and criminal charges of the most serious kind had to be withdrawn. By their own choice, neither of the Hodsons had been participants 4 in Victoria’s Witness Protection Program, a fact overlooked in much of the media reporting of their murders. It was often asserted, wrongly, that Mr and Mrs Hodson were on the Program. That lesson was not wasted. In 2004, legislation for the first time gave the then Police Ombudsman, now the Director, Police Integrity, power to investigate any matter which he thought appropriate. It was no longer necessary for a complaint or a reference to be received from an outside body before I could act. The first inquiry initiated under the new provision was into the operation and effectiveness of the Victoria Police Witness Protection Program, of which this is the Report. It has involved a review of the literature about witness protection and of complaints received by my Office as well as interviews, including with a number