Prison Informers - Warnings
Section 165(1)(e) Evidence Act 1995 (NSW) provides that evidence given in a criminal proceeding by a witness who is a prison informer is “evidence of a kind that may be unreliable”. If a party requests and if there is a jury, the judge is to:
- (a)
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warn the jury that the evidence may be unreliable, and
- (b)
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inform the jury of matters that may cause it to be unreliable, and
- (c)
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warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it: s 165(2).
The judge need not comply with s 165(2) if there are good reasons for not doing so: s 165(3). The judge should state the “good reasons for not doing so”: R v Beattie (1996) 40 NSWLR 155 at 160. It is not necessary that a particular form of words be used in giving the warning or information: s 165(4). Section 165 “does not affect any other power of the judge to give a warning to, or to inform, the jury”: s 165(5). This preserves the discretion to give additional warnings: R v Robinson [2006] NSWCCA 192 at [5]. A warning that evidence from a prison informer may be unreliable is only required if the evidence is unfavourable to the accused: R v Ayoub [2004] NSWCCA 209 at [14]–[15]; R v Main [2009] NSWCCA 14 at [26].
- 1.
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Case law on prison informers prior to the Evidence Act “must be treated with considerable reserve”: R v Robinson [2006] NSWCCA 192 at [6]. The expression “prison informer” is not defined in the Evidence Act. Toohey J in Pollitt v The Queen (1992) 174 CLR 558 at 605 took it to refer to the evidence of “a prisoner, not connected with the offence in question, who purports to give evidence of statements of a confessional nature made by an accused whilst in prison”. The terms of s 165(1)(e) “evidence given in a criminal proceeding by a witness who is a prison informer” appear broader than Toohey J’s formulation of “evidence of statements of a confessional nature”. The court in R v Hudd (unrep, 9/12/94, NSWCCA) followed Toohey J’s formulation. Smart AJ said with support in R v Ton (2002) 132 A Crim R 340 at [34], that the “term [prison informer] is most frequently used when one prisoner relays a conversation in which another prisoner has admitted his guilt of a serious offence”.
- 2.
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Prior case law may be used to identify matters that may cause the evidence to be unreliable: R v Robinson [2006] NSWCCA 192 at [7]. In the common law decision of R v Clough (1992) 28 NSWLR 396 at 405, the Court of Criminal Appeal summarised several matters identified by the High Court in Pollitt v The Queen. Hunt CJ at CL said:
“[It] is potentially unreliable because:
- (i)
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the witness is likely to be of bad character;
- (ii)
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the evidence is easily concocted;
- (iii)
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the witness is likely to have been motivated to concoct such evidence either:
- (a)
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by his perception that he will derive some benefit in terms of sentence, treatment or release from custody if such evidence is given, or
- (b)
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by reason of pressures on him … arising from his prison environment, where conventional standards of conduct are replaced by a culture in which values such as truth and respect for the rights of others have little relevance; and
- (iv)
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there is usually no way in which the accused can meet such evidence except by his own denial.”
- 3.
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The common law necessity to warn the jury that it is dangerous to convict on the uncorroborated evidence of a prison informer was abolished by s 164(3) Evidence Act: R v Robinson [2006] NSWCCA 192 at [9]; Conway v The Queen (2002) 209 CLR 203; R v Kanaan [2006] NSWCCA 109. The judge may, if satisfied that it is necessary in the interests of justice to do so in the particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of such a witness, but the judge is never under a duty to do so: R v Kanaan at [217]; R v Robinson at [8]. But the use of the formulation “dangerous to convict” is best avoided, save in exceptional circumstances, as it is frequently understood by a jury as, in effect, a direction by the judge to acquit the accused: R v Robinson at [19].
See also the discussion in Witness reasonably supposed to have been criminally concerned in the events at [4-350].
