Bench Notes: Unreliable Witness Warnings

4.18 - Unreliable Evidence[1]

4.18.7 - Bench Notes: Unreliable Witness Warnings at Common Law

Table of Contents

Overview 2

When Should an Unreliable Witness Warning be Given? 3

Witness Must be Inherently Unreliable 3

Circumstances Relevant to Determining Witness Unreliability 3

Examples of Potentially Unreliable Witnesses 5

Prison Informers Giving Evidence of Oral Confessions 5

Witnesses with Similar Motives to Accomplices 5

Potential Accomplices 6

Indemnified and Co-operating Witnesses 6

Children and Cognitively Impaired Witnesses are not Presumptively Unreliable 7

Warning Must be Necessary to Avoid a Risk of Miscarriage of Justice 8

The Warning Must Address Concealed Dangers 8

Role of Defence Counsel in the Judge’s Determination 9

Reasons for Not Giving a Warning 9

A Warning Should be Given Only When Truly Necessary 10

Content of the Warning 10

Unreliability 11

Identification of Factors Creating Unreliability 11

Jury Must Exercise Special Care 11

Supporting Evidence (Corroboration) 12

What is “Supporting Evidence”? 12

The “Dangers of Convicting” on Unsupported Evidence 12

Jury to Look for Supporting Evidence 13

Comparison with Corroboration Warning 13

Supporting Evidence and Informers 13

Judge Must Warn with the Authority of the Judge’s Office 14

Other Matters 14

Limited Use of These Notes

These notes address the common law rules for warning juries about unreliable witnesses that were articulated in Bromley v R (1986) 161 CLR 315 and the cases that followed it.

This subject matter is now primarily governed by s165 of the Evidence Act 2008, which creates a statutory scheme for warning juries about evidence “of a kind that may be unreliable”. For more information on that scheme see Bench Notes: Unreliable Evidence Warnings: General Principles#.

Despite the enactment of this scheme, s165(5) preserves “any other power of the judge to give a warning to, or to inform the jury”. It has been held that this preserves the Bromley duty to give any warning necessary to avoid a perceptible risk of miscarriage of justice, including by warning about the unreliability of some kinds of witnesses.

These notes are preserved here to assist in the application of those persisting common law principles. These notes should only be used in combination with the relevant UEA notes and charges.

Overview

1. Judges must give all directions necessary in the circumstances of each particular case to avoid a perceptible risk of a miscarriage of justice (Bromley v R (1986) 161 CLR 315).

2. The inherent unreliability of certain witnesses can create such a risk. If that risk arises in the circumstances of a particular case, an “unreliable witness warning” must be given (Bromley v R (1986) 161 CLR 315; R v Faure (1993) 67 A Crim R 172).[2]

3. The need for and content of an unreliable witness warning are both determined by the requirements of justice in the individual circumstances of the particular case (Bromley v R (1986) 161 CLR 315).

4. An unreliable witness warning should only be given where it is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice (Bromley v R (1986) 161 CLR 315; R v Miletic [1997] 1 VR 593).

5. Cases where a warning is required because of the individual circumstances can be distinguished from cases where a similar warning is required as a rule of practice. Rules of practice apply to:

· Accomplice evidence; and

· Police evidence about certain oral confessions made while in custody.

6. These cases can also be distinguished from those in which a warning is required not because of the unreliability of a witness, but because of the forensic disadvantage created by a long delayed complaint or prosecution.

7. An unreliable witness warning can be a form of corroboration warning. These notes should therefore be read in conjunction with Bench Notes: Corroboration.

When Should an Unreliable Witness Warning be Given?

8. Some form of unreliable witness warning must be given where:

i) Evidence is given by a witness who is “inherently unreliable”; and

ii) Such a warning is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice (Bromley v R (1986) 161 CLR 315; R v Miletic [1997] 1 VR 593).

Witness Must be Inherently Unreliable

9. An unreliable witness warning is not required because of the mere possibility of a witness’s error. Such a warning is only required where a witness is considered to be “inherently unreliable” (R v Brooks (1999) 103 A Crim R 234).

10. For a witness to be “inherently unreliable”, there must a pre-existing proneness to (or likelihood of) unreliability, which is inherent in the general nature of the witness, or in his or her relationship to the accused, the victim or the events (R v Brooks (1999) 103 A Crim R 234; R v Kotzmann [1999] 2 VR 123).

11. A warning is therefore not required simply because:

· There has been an attack on the credibility of a witness or a group of witnesses (R v Campbell 14/11/1994 CCA Vic);

· There are inconsistencies or discrepancies in the evidence of a witness (R v Minaoui [2004] VSCA 126); or

· The impugned witnesses have convictions or bear some characteristics which may, on one view of the evidence, render them unreliable (R v Campbell 14/11/1994 CCA Vic).

12. It is generally not possible to determine the necessity for an unreliable witness warning by reference to collections of categories of witnesses (R v Lowe 13/11/95 CA Vic).

13. Instead, the necessity for an unreliable witness warning must be determined on a witness by witness basis (R v Minaoui [2004] VSCA 126).

14. The need for a warning is more likely to arise in a case where the factors which make the witness’s evidence unreliable exist independently of what view the jury takes of the witness's evidence (R v Campbell 14/11/1994 CCA Vic).

Circumstances Relevant to Determining Witness Unreliability

15. Evidence of any of the following matters may be relevant to the assessment of whether a witness is “inherently unreliable”:

· The witness is a prison informer (giving evidence of an oral confession) (Pollitt v R (1991) 174 CLR 558);

· The witness has an accomplice-like motive to lie (R v Ali [2002] VSCA 194);

· The witness has received an indemnity from the prosecution, or a sentencing or other benefit for co-operation (R v Calabro 12/11/1984 CCA Vic; R v Checconi (1988) 34 A Crim R 160; R v Powercor (Australia) Ltd [2005] VSCA 163; R v Smith & Turner (1995) 80 A Crim R 491; R v Heaney [1999] VSCA 169; R v Sharp [2005] VSCA 44; R v Strawhorn [2008] VSCA 101);

· The witness is an alternative suspect (R v Faure (1993) 67 A Crim R 172; R v Mitchell [2006] VSCA 289; R v Campbell 14/11/1994 CCA Vic);

· The witness has poor criminal record or is otherwise part of the criminal milieu (R v Latina 2/4/1996 Vic CCA; R v Hickey (1995) 89 A Crim R 554);

· The witness was drug-affected at time of the events (R v Maple [1999] VSCA 52);

· The witness is hostile towards the accused (R v Faure (1993) 67 A Crim R 172; R v Kotzmann [1999] 2 VR 123; R v Hickey (1995) 89 A Crim R 554);

· The witness has a proven history of dishonesty (R v Holt & Merriman (1996) 87 A Crim R 82; R v Hickey (1995) 89 A Crim R 554);

· The witness has a cognitive impairment (including impaired memory) which may have affected his or her capacity to give reliable evidence (Bromley v R (1986) 161 CLR 315; R v Sharp [2005] VSCA 44; R v Challoner (2000) 110 A Crim R 102; R v Hickey (1995) 89 A Crim R 554; R v Maple [1999] VSCA 52).

16. However, the presence of any one or combination of these factors is not enough to determine that a warning should be given. That assessment must be informed by all the circumstances of the case (See for example R v Morgan 13/8/1996 CCA Vic; R v Brooks (1999) 103 A Crim R 234; R v Sotiropoulos [1999] VSCA 115; R v Kotzmann [1999] 2 VR 123; R v Heaney [1999] VSCA 169; R v Campbell 14/11/1994 CCA Vic; R v Strawhorn [2008] VSCA 101).

17. The first three circumstances outlined above are addressed in more detail below.

Examples of Potentially Unreliable Witnesses

Prison Informers Giving Evidence of Oral Confessions

18. While each case must be assessed on an individual basis, where a prison informer gives evidence of an oral confession made to him or her, an unreliable witness warning should usually be given (Pollitt v R (1991) 174 CLR 558).

19. There is no rule of law or practice requiring a warning to be given in such cases. However, it will only be in an exceptional case that a full unreliable witness warning will not be necessary (Pollitt v R (1991) 174 CLR 558).

20. A prison informer’s evidence of an oral confession is generally regarded as inherently unreliable for the following reasons:

i) This evidence is easily concocted;

ii) Where this evidence is concocted, an accused’s denial will ordinarily have no possibility of corroboration;

iii) Prison informers (if convicted criminals) are of bad character;

iv) The law acknowledges that the prison informer’s position creates motives to fabricate such evidence, including:

· the perception that they will derive some benefit in terms of sentence, treatment or release on parole; and

· by reason of a variety of common prison environment pressures which may not be apparent to a jury (Pollitt v R (1991) 174 CLR 558).

21. There is a difference between a “prison informer” who gives evidence of an oral confession made to him or her, and a “prisoner witness” who is a witness to events that occur in prison. A “prisoner witness” should not be treated as a “prison informer” (R v Ton (2002) 132 A Crim R 340 (NSWCCA), R v Ali (No.2) (2005) 13 VR 257).

22. An accomplice who, in order to receive favourable treatment, gives evidence of an oral confession made to him or her by the accused (becoming an “informer”), should commonly be treated in the same way as a prison informer (R v Tamme [2004] VSCA 44; Grey v R (2001) 184 ALR 593).

Witnesses with Similar Motives to Accomplices

23. An unreliable witness warning may be required for witnesses who are not accomplices, but nonetheless have an accomplice-like motivation to give false testimony exculpating themselves and inculpating the accused (R v Parsons (2004) 145 A Crim R 519; R v Mitchell [2006] VSCA 289; R v Ali (No.2) (2005) 13 VR 257).

24. While accessories after the fact may fall within this category (R v Parsons (2004) 145 A Crim R 519), it cannot be assumed that they have such a motivation. Historically, the law has declined to treat accessories after the fact as accomplices because their assumed interest lies in exculpating rather than implicating the accused. However, every case must be considered on its own facts (R v Ready and Manning [1942] VLR 85; R v Weiss (2004) 8 VR 388).

25. Witnesses with an accomplice-like motivation do not form a special category, and the need for a warning should be determined by reference to all of the circumstances of the case (R v Ali (No.2) (2005) 13 VR 257).

26. If it is suggested that a non-accomplice, who has not been charged with an offence, has an accomplice-like motive to lie (so as to shift blame from themselves), the fact that they have not been charged will militate against the giving of a warning (R v Parsons (2004) 145 A Crim R 519).

Indemnified and Co-operating Witnesses

27. Warnings are often requested in respect of indemnified witness and witnesses who have received a benefit for co-operation (R v Calabro 12/11/1984 CCA Vic; R v Checconi (1988) 34 A Crim R 160; R v Powercor (Australia) Ltd [2005] VSCA 163; R v Smith & Turner (1995) 80 A Crim R 491).

28. Many indemnified or co-operating witnesses will be accomplices who attract the need for an accomplice warning.

29. There is no rule that an unreliable witness warning must be given for every non-accomplice who is indemnified or co-operating. These cases must be assessed on their individual circumstances (R v Powercor (Australia) Ltd [2005] VSCA 163; R v Smith & Turner (1995) 80 A Crim R 491).

30. In some circumstances an indemnity will create no risk of unreliability. In other cases, any risks that are created will be sufficiently obvious to the jury that there will be no need for a warning (R v Powercor (Australia) Ltd [2005] VSCA 163; R v Smith & Turner (1995) 80 A Crim R 491).

31. Where there is evidence that a critical witness was indemnified or benefited from co-operation, the circumstances in which the evidence was given, and their consequence should be fully explained to the jury. This explanation should generally be given even if no unreliable witness warning is required (R v Checconi (1988) 34 A Crim R 160).

32. This explanation may describe:

· The terms of the indemnity or undertaking to co-operate; and

· The statutory consequences for the witness if he or she does not fulfil the terms of an undertaking to co-operate

Children and Cognitively Impaired Witnesses are not Presumptively Unreliable

33. Historically the law regarded child witnesses as an inherently unreliable class of witness and a corroboration warning was required for their evidence as a rule of practice (DPP v Hester [1973] AC 296).