Editorial: The shady side of secret witnesses

Secret witnesses have a legitimate role to play in the fight against crime. Always there will be unfortunate people who simply happen to be in the wrong place at the wrong time when episodes of violence or murder take place. They have no connection to the crime but, particularly in gang-related cases, risk repercussions if their identity is revealed.

But such secret witnesses are far removed from the likes of Travis Burns, a career criminal with a history of violent assault and intruder rape. It is little wonder that questions are being asked about the wisdom of paying him $30,000 to be a key crown witness, and then, under the witness protection programme, moving him to an area where he later murdered Joanne McCarthy.

Justice Robert Chambers, refusing Burns continued name suppression in the Tania Furlan murder case, has gone so far as to question the use of police informers at all. What safeguards should there be as to the evidence they gave, he asked. And was it appropriate for the police to pay informers for information? In the case of informers with a criminal record such as that of Burns, there is an obvious question of reliability.

We will never know if his evidence would have stood the test of courtroom scrutiny. Burns was to have testified that Christopher Lewis confessed to him that he went to Mrs Furlan's Howick home and bashed her to death before snatching her baby in a botched kidnapping. But Lewis, who maintained Burns was the real murderer, killed himself in Mt Eden Prison in 1997 before he could stand trial.

We may also never know the answers to questions raised by the Court of Appeal judges. Whether, for example, police prosecuted the wrong person and whether their handling of the case drove an innocent man to suicide.

We do know, however, that this is not the first time that a secret witness has caused the police severe embarrassment. After the Marlborough Sounds double murder trial, Witness A alleged the police had pressured him into giving false evidence against convicted killer Scott Watson. The man said he believed his chances of parole would be affected if he stood up to the police. Such jailhouse confessions normally carry the same flaws as those associated with the use of convicted criminals. There will always be a suspicion that such witnesses will lie under oath if they have a personal incentive or see an advantage.

The police say that if Burns had not come forward to give evidence against Lewis, the Furlan case might never have been solved. Perhaps so. But the obvious inference is that, after exhausting all other lines of inquiry, they did not have a strong case without his evidence.

The police also say the payment of $30,000 to Burns was justified because a reward was about to be posted anyway. Yet if Burns came forward of his own volition, why was it necessary to pay him? Being paid to give evidence inevitably casts suspicion on the reliability of the witness, more so if that witness is tainted by a criminal record.

Justice Chambers, therefore, also questioned whether the police should have to disclose to the defence the terms on which informers were giving evidence, and if the existing warnings that judges gave juries were sufficient.

If justice is to be applied fairly and openly, the answers are obvious, especially where the prosecution case depends heavily on the evidence of a police informer. Any incentive given to an informer must be fully disclosed.

Ideally, prosecutors would prefer to have untainted evidence on which to base a case. Secrecy of any description raises the suspicion of juries. Sometimes, however, secret witnesses - often of the innocent bystander variety - will be valuable prosecution weapons. Their reliability, and the need for anonymity, will not be doubted.

Justice Chambers says as much when he advises that other informers need not fear that name suppression will be lightly revoked. His wide-ranging questioning of the police informer scheme should, nonetheless, be the spur for a reassessment of its use.

The Burns case suggests it is unwise to use secret witnesses with criminal records. And that if they must be employed, so must safeguards. Juries must be in no doubt about the terms of their employment. Anything less degrades the justice system.