ICAC Report On Investigation Into The Use Of Informers Volume 2 January 1993
Excerpts from above named ICAC report, retrieved from:
Subject: Hilton Bombings – Section 6 of Report
Subject: Ray Denning, deceased
gave false evidence against Tim Anderson for Hilton bombing
Subject: Tim Anderson (Dr), currently Lecturer, Sydney University, Sydney, NSW, Australia
Convicted by testimony from Denning, . Later acquitted because of unreliability of evidence
Subject: Brian di Francesco, currently Manager Hotel Gordon, Goulburn, NSW, Australia
Subject: Aarne Tees, deceased
Alleged corrupt conduct, including:
p. 126 Woodham Helps Denning
Denning was charged with escaping from lawful custody on 15 July 1988 when he left Goulburn with Carrion. He pleaded guilty. Judge Shillington had to impose sentence upon him. Two witnesses were called, Detective Senior Constable Di Francesco (who is mentioned in the next chapter) and Woodham. They gave evidence on 21 July 1989.
P129-130 Key Dates: The chronology was as follows.
22 July 1988 Denning (and Williams) are captured in Melbourne.
12 December 1988 The Bachs inform Tees at the request of Denning that he wishes to provide information.
20 December 1988 Tees and Victorian detectives interview Denning at Pentridge Gaol.
10 February 1989 Denning pleads guilty to the Victorian charge, and is sentenced to gaol for five years.
17 February 1989 Order pursuant to the Prisoners (Interstate Transfer) Act 1982 requiring transfer of Denning from Victoria to New South Wales.
21-22 February 1989 Denning is interviewed by Woodham and Detective Teasdale of the Special Investigations Unit (SIU).
Late February .
April 1989 Denning provides various statements to Di Francesco and April 1989 Tees.
20 April 1989 Statement of facts is prepared by Di Francesco for the purpose of Denning’s sentencing in relation to the escape.
30 May 1989 Anderson is arrested.
21 July 1989 Denning is sentenced by Judge Shillington to 2.5 years for the escape
October 1989 Denning gives evidence against Anderson in committal proceedings.
9 February 1990 Deming applies to the Supreme Court for an order determining his minimum term in relation to the life sentence he is serving.
2 June 1990 Denning is indemnified by the Queensland Attorney-General for offences committed by Denning in that State.
18 September 1990 Denning gives evidence at the Anderson trial.
28 November 1990 Denning applies for the Hilton bombing reward.
26 April 1991 Denning’s life sentence is re-determined by Mr Justice Wood.
6 June 1991 The Court of Criminal Appeal quashes Anderson’s conviction.
Tees in particular was involved in almost all these events, and virtually throughout. The assistance he gave to Denning, viewed in its totality, was extraordinary.
Pp 135-138 Proceedings before Judge Shillington:
When Denning came up to be sentenced for the 1988 escape, two key documents Judge Shillington had before him were a statement made by Denning on 20 April 1989 and witnessed by Tees, and a statement of facts of the same date signed by Di Francesco. Teessaid he saw the brief, approved of it, and considered there was no material information missing from it.
Denning’s statement for the purpose of the sentencing appears on the next page. Di Francesco’s statement of facts, less the last couple of lines which records his transfer from Victoria under the Prisoners (Interstate Transfer) Act 1982 appears on the following page. It will be noted that the latter is very much based upon the former.
I accept the submission made by counsel assisting the Commission. The statement of facts:
(a) Asserts as a fact that Denning’s decision to escape “was made on the spur of the moment”.
(b) Failed to disclose that there were certain objective features of the escape which suggested that it was pre-planned: namely that prior to the escape Denning had arranged through his girlfriend, Ann Denton, to obtain a number of false licenses and immediately following the escape, he met up with her.
(c) Failed to disclose that almost immediately after the escape Denning went about arming himself.
(d) Failed to disclose that whilst at large he committed an armed robbery in Queensland with Carrion which netted approximately $44,000.00
(e) Failed to disclose the circumstances surrounding the arrest of Denning in Victoria. The first two points really explain themselves. As to the third and fourth points, it seems to me that the statement which Tees took from Denning on 20 April was very seriously deficient. Consider the following account of what occurred after the supposedly spontaneous escape:
4. Two of Carrion’s relatives picked us up and drove us to Wollongong. From there I made my way to Sydney and then to Queensland. From there I travelled to Melbourne where I was arrested on 22 July 1988. I was at large 8 days. But there was a great deal more to the matter than that. Denning obtained guns in New South Wales, and another in Queensland. He robbed a bank, while armed and in company, in Queensland.
The inevitable result of all of this was that Judge Shillington was misled. The information hehad before him was far short of what he needed. As I said to Tees at the hearing:
It should be relevant for a sentencing judge dealing with a man for escape to know whether he escaped – whether following escape he spent all his time looking after his sick mother or whether on the other hand he was roaming around holding up banks. It must surely be relevant?—If there’s evidence of him holding up banks I would include it, yes, but if it’s an interstate situation he had been sentenced on, l don.t know what it’s in there. I would have to see what’s in that brief.
But he had admitted holding up banks, hadn’t he?—When?
He had never admitted holding up a bank to you?—He made a statement which was a statement which couldn’t be used against him. I had no evidence of him holding up a bank, no.
There was much debate at the hearing as to whether statements which would not be admissible at a trial could be relied upon for sentencing purposes, and if so, to what extent. I accept that if the Crown places before a sentencing judge material which is challenged, then it will be excluded unless it can be proved, the onus resting upon the Crown. There was reference in the earlier statements signed by Denning to the money “from the Queensland robbery”, to the acquisition of firearms and soon. As I understood the position of Tees, it was that those statements could not properly be relied upon because they were obtained from Denning for the purpose of his giving evidence against others, and it does not appear on their face that he was cautioned before those statements were taken.
Di Francesco said he was officer in charge of the proceedings before Judge Shillington. He conceded that at the time he prepared the statement of facts he was aware that Denning had organised the obtaining of false licences and that his girlfriend, Ann Denton, joined the escapees shortly after the escape occurred. His reasons for not disclosing the Queensland robbery to the sentencing Judge were the same as had been given Tees.
The line being run before me was that the police could really do no more than they had in fact done. They were in effect saying technical legal considerations precluded them from placing full information before the court. Both recognised an obligation to do so. Tees was asked:
Do you consider that there is any justification for watering down the facts at all as some sort of reward to the offender for pleading guilty?—No.
You don ’t water down facts, you give the facts as they are. They’re generally taken from the brief of evidence. In other words what’s in the brief is what you can give in the facts. You can i” add anything and it’s just a precis of it, the whole brief gets handed up anyway.
The last part of that can only be described as cute. It is the police who prepare the brief, and decide what goes in to it. While there are limits to how far they can go, there are no effective practical limits as to what they can leave out if they wish to be friendly to the accused. The possibility of this being used for flagrantly corrupt purposes is perfectly obvious, although I do not suggest that Denning paid Tees to help him. There was no evidence of that, nor was it likely. In any event, Denning had something much more valuable than money so far as Tees was concerned. He had reliable information about very serious criminal matters, and by that stage the power, on the face of his evidence, to convict Anderson of the Hilton bombing.
Di Francesco was asked whether he regarded himself as under a duty to inform the court of all relevant matters on sentence?, and he said he believed so.
Listen now to Denning. He was asked by counsel assisting the Commission about the taking of the statement on 20 April 1989. Denning said he was under the impression that the police needed a statement to do with the escape itself. A little later he was asked:
Did you wonder why you were being asked for yet another statement devoid of detail?—Well, I was just-as far as l know it was just a statement to do with the escape and that’s all it is. That’s what I was asked about so it – that’s the relevant part of it. I was charged with escape, the statement is about the escape. M on t think it leaves anything of the escape out.
I see. Did any of the police officers, Tees, Di Francesco or anybody else suggest it wasp ~ necessary to go into details of what you had been doing?—No.
During the period of your escape?—No, I was asked questions and I gave the answers and what I said was written down, as far as I know.
Denning agreed he made his statement as a consequence of questions asked of him.
And you say the reason why there is no reference to your activities during the time you were an escapee is simply because the police officers didn’t ask you any questions about that?– And I – because we were – I was asked to talk about the escape – - -
Well, if Mr Tees had said, “Well look, look, Mr Denning; we want a statement of facts for Judge Shillington on your sentence. Would you include in the statement what you did in Queensland?” Would it be fair to say you would have included in the statement details about the armed robbery you did there?—Of course I would have.
Yes?—You know, I-I was being as helpful as l could by- to the best of my knowledge.
I accept that evidence. The reason Judge Shillington did not have information before him about what Denning did while at large for eight days – especially the fact that he robbed a bank – is that the police did not ask. I have no doubt the reason Tees did not ask that question is because he wanted to help Denning, and he knew if he asked that question the answer would not help Denning, which would have ramifications for Tees. And I have no doubt he wanted to help Denning because Denning was helping him.
The plain fact is that the police could have done more than they did: they could and should have checked and tested Denning’s assertion that it was a spur of the moment escape. They did not. At best, they were content to acquiesce in his own minimisation of the criminality, and at worst they actively sought to mislead the court. It was not simply technical legal considerations which prevented them from doing more. They acted as they did because they wanted to help Denning.
It might be said there is nothing wrong with a little mutual back scratching. I think that would be the response of most detectives. But the public is bound to view the matter differently. Consider the objective facts: Denning was a dangerous criminal, feared by the community, with a serious record, who had been trusted and placed in a minimum security prison, from which he escaped. Immediately he reverted to his old ways, and robbed a bank while armed. He was sentenced by a Judge who did not have that basic fact before him.
This is simply pitiful. The fault lies with Tees, and perhaps also Di Francesco, although I must say it was my strong impression that the latter did the bidding of the former.
It should be pointed out, in fairness to Tees, that it is not unusual for detectives to omit relevant material from material placed before a sentencing judge. Any lawyer who has practised criminal law to a significant extent has seen that happen. The practice occurs not just in New South Wales, but in other parts of Australia, and probably elsewhere. The strong impression one is left with is that it is all part of the unofficial and sometimes implicit dealings and understandings that occur between police and criminals. Of course the risk that sometimes it will happen in more sinister circumstances can never be ignored. What happened in this case was improper.
Pp 145-146 Corrupt Conduct?
In the closing submissions, counsel assisting the Commission suggested that a finding of corrupt conduct should be made against Tees and Di Francesco in relation to the sentencing of Denning before Judge Shillington. This was put on the basis that the statement of facts was misleading both positively and by omission, the former in saying that the escape was “spur of the moment”, and the latter by failing to disclose the Queensland armed robbery.
This was, it was submitted, a “partial” exercise of official functions, which while not dishonest in the sense that it gave any personal benefit to the officers concerned, was designed to, and probably did, help Denning in a manner which was inappropriate and unjustified.
I have given this submission the most anxious consideration. It is of fundamental importance that sentencing judges should be given full and accurate information by State officials, and I consider it to the discredit of Tees that this did not happen. I have no doubt that Tees was the prime mover in whatever Di Francesco said or failed to say, and that is particularly clear here because the statement of facts prepared by the latter was very much based upon the statement of the same date obtained by the former from Denning.
I have no doubt that Tees set out to help Denning. I have no doubt that the steps taken were calculated, at least in the sense of likely and probably in the sense of intended, to favour Denning. On the other hand I am satisfied that Tees saw this as being appropriate, and I am mindful of the fact that there is little evidence of police orders or guidelines in this important area. I also heard a deal of argument, chiefly from Mr Greenhill for Tees, as to whether the Queensland robbery could have been properly placed before Judge Millington. I thought the case was seriously overstated before me, but doubt remains such that I cannot confidently say that the statement of facts was “misleading” within the meaning of Rule 11(f)(1) of the Police Rules 1977. If a charge was laid against these officers, it probably would not be sustained.
However, I accept without reservation the evidence of Denning which was that had they asked, when interviewing him for the purposes of the sentencing by Judge Shillington, he would have told them all they wanted to know about the Queensland robbery. That means one has to ask whether Tees performed his duties in a somewhat sloppy manner, or is a very clever man who set out to create a position in which Deeming could be helped and he (Tees) could not be blamed. This is tantamount to asking whether Tees is a fool or a rogue. Anybody having dealings with Tees would hesitate long and hard before calling him a fool.
However, less than adequate performance of duties is a possibility I cannot confidently
discard. When it is coupled with the absence of applicable rules or guidelines, I feel unable
to conclude that his conduct was corrupt within the meaning of the ICAC Act.