Prison informers — warnings
Section 165(1)(e) Evidence Act 1995 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:
warn the jury that the evidence may be unreliable, and
inform the jury of matters that may cause it to be unreliable, and
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  NSWCCA 192 at . 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  NSWCCA 209 at –; R v Main  NSWCCA 14 at .
[3-760] Suggested direction
I want to now give you a direction about the way you should approach the evidence given by [name of prison informer]. You will recall that [his/her] evidence was that:
[Briefly summarise the unfavourable evidence]
I want to give you a warning about the way you should treat that evidence.
That evidence may be unreliable and there is therefore a need for you to exercise caution when you decide whether to accept it and the weight you should give it.
Let me explain to you why it is that the evidence may be unreliable. The first reason is that evidence of this kind is easily invented. It is simply a matter of [name of prison informer] saying that [name of accused] said something to [him/her], and there is not really much that a person in the [name of accused] position can do beyond simply denying that [he/she] said those things.
It’s also possible that [name of prison informer] has made up [his/her] the evidence in the hope of getting some benefit, perhaps including favourable treatment within the prison environment, or a favourable decision concerning release on parole.
People like [name of prison informer] are also affected by the standards and culture of prison society, where respect for the law, and telling the truth, may not be valued in the same way as would be the case outside prison. In prison there is often not a lot for prisoners to do to occupy their time and they live very close to each other. It is easy in those circumstances for one prisoner to develop a grudge against another over something that would seem quite trivial to someone outside jail.
[If appropriate: You must also remember that [name of prison informer] is a convicted criminal who was serving a sentence of imprisonment at the time this conversation was said to have occurred. That means that you may regard [him/her] as a person who is less likely to tell the truth than a person who has not been convicted of a criminal offence.]
For these reasons the evidence of [name of prison informer] may be unreliable and there is therefore a need for you to exercise caution when you decide whether you accept that evidence. If you do decide to accept it, you should be similarly cautious in deciding how much significance or value that you think it has.
[Summarise arguments of counsel as to why the evidence should, or should not, be accepted]
I have told you that the evidence of [name of prison informer] may be unreliable. I have told you why that is the case. And I have told you that you should therefore exercise caution before you accept the evidence and decide what significance it has.
That is what I have done. Let me tell you what I have not done. What I have not done is to give you my personal view at any stage of these directions. I told you earlier that it is not my function to try and persuade you one way or the other about any issue in this trial. The direction that I have just given to you is one the law requires me to give to ensure that the accused receives a fair trial. It is a direction that is given to you because the experience of the courts over many years with witnesses like [name of prison informer] is that their evidence may be unreliable. It is a direction that you must take into account.
Case law on prison informers prior to the Evidence Act “must be treated with considerable reserve”: R v Robinson  NSWCCA 192 at . 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 , 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”.
Prior case law may be used to identify matters that may cause the evidence to be unreliable: R v Robinson  NSWCCA 192 at . 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:
the witness is likely to be of bad character;
the evidence is easily concocted;
the witness is likely to have been motivated to concoct such evidence either:
by his perception that he will derive some benefit in terms of sentence, treatment or release from custody if such evidence is given, or
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
there is usually no way in which the accused can meet such evidence except by his own denial.
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  NSWCCA 192 at ; Conway v The Queen (2002) 209 CLR 203; R v Kanaan  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 ; R v Robinson at . 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 .
See also the discussion in Witness reasonably supposed to have been criminally concerned in the events at [4-380].