Witness reasonably supposed to have been criminally concerned in the events

[4-380] Introduction

Section 165(1)(d) Evidence Act 1995, provides that evidence which may be unreliable includes evidence given in a criminal proceeding “by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”.

This category includes a witness referred to at common law as an accomplice: Sio v The Queen [2016] HCA 32 at [65]. Section 165(1)(d) recognises that the evidence of accomplices is “apt to be unreliable by reason of a motive to shift blame to the co-offender”: Sio v The Queen at [65]. The Court of Criminal Appeal has observed that it may be preferable that a trial judge avoids using the word accomplice during his or her warnings to the jury. This is because the use of that word may inadvertently convey the impression that the judge believes that the witness is in fact an accomplice of the accused and therefore, that the trial judge has formed the view that the accused is guilty of the charge before the jury: R v Stewart (2001) 52 NSWLR 301 at [126]; R v Cornelissen [2004] NSWCCA 449 at [117]. The suggested direction below is drafted to accommodate this observation.

Where a judge is required to make a determination that a witness comes within the expression used in s 165(1)(d), but concludes either that the test in the section is not satisfied or there are good reasons for not giving a warning (s 165(3)), the judge should give reasons: Kutschera v R [2010] NSWCCA 150 at [95]–[97]ff.

It is erroneous to give a warning where the evidence of a witness criminally concerned in events is not relied upon by the Crown against an accused: Proud v R (No 2) [2016] NSWCCA 44 at [73] (where the evidence which attracted the erroneous direction was that of the accused). A warning is not appropriate “because the aspect of the witness’s status that gives rise to the possibility of unreliability is no longer relevant: the potential of the witness to falsely implicate the accused in order to diminish his own culpability ceases to exist”: R v Ayoub [2004] NSWCCA 209 at [16]. Where the Crown does not rely upon the evidence of such a witness or vigorously disputes the witness’s evidence, the jury should be directed to assess the evidence in the ordinary way: Proud v R (No 2) [2016] NSWCCA 44 at [70].

The content of the warnings required by s 165(1)(d) will depend upon the particular circumstances of the case. Although it is not necessary that any particular form of words be used in giving the warning, certain elements will generally be required. For example, failure to direct the jury in terms of the experience of the courts concerning the reliability of evidence given by persons reasonably supposed to have been criminally concerned in the events giving rise to the proceedings, will weaken the impact of the warning. A judge who fails to mention such experience when it exists certainly increases the risk of the warning being insufficient: R v Chen [2010] NSWCCA 224 at [27].

Section 165(1)(d) uses the expression “a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding”. There is no requirement to use that expression in directing the jury. The suggested directions below use an alternative formulation that is more readily understandable by jurors: “a person who was, or might have been, involved in the alleged crime”. Much may depend upon the circumstances of the case as to which precise expression is used but it is suggested that the long-winded legal expression in s 165(1)(d) be avoided where possible. Even the word “accomplice” may be used provided that it does not inadvertently convey that the trial judge thinks that the accused is guilty of the crime charged: for example, “a person who the Crown alleges was an accomplice of the accused”.

[4-385] Suggested direction

The Crown relies upon the evidence of [the witness]. The Crown also asserts that [the witness] is a person who was, or might have been, involved in the alleged crime.

The law requires me to give you certain warnings and directions concerning this evidence. They are given in every case in which the Crown relies upon the evidence of a witness who was, or might have been, involved in the alleged crime. They are not given in this case because of any view which I have formed concerning the evidence of [the witness].

The need to give such directions arises because the courts have, over the years, a great deal of experience concerning the reliability of evidence given by a witness who was, or might have been, involved in the alleged crime. That experience has shown that the evidence given by such a witness may be unreliable. I do not intend to suggest, however, that such evidence is always unreliable.

My purpose in giving you these directions is only to warn you that the evidence of such a witness may be unreliable and for that reason, you must approach that evidence with considerable caution in the way in which I will outline shortly.

There are many reasons why the evidence of such a person may be unreliable. Possible reasons are:

It is only natural, you may think, that a witness who was, or might have been, involved in the alleged crime, may want to shift the blame from himself or herself onto others, and to justify his or her own conduct. In the process, the witness may construct untruthful stories, which tend to play down his or her own part in the crime and play up the part of others in the crime, even going so far as to blame quite innocent people.
Persons who are, or might have been, involved in an alleged crime may make false claims as to the involvement of others out of motives of revenge or a feeling of dislike or hostility.
Such a person may be motivated to give false evidence in order to qualify for a reduction in his or her own sentence. [Where a discount has already been granted, as is the normal case, the jury should be specifically directed as to the precise extent of the discount and the consequences of failing to give evidence in accordance with his or her undertaking — see bracketed note below.]
There may be other reasons or motives why false evidence has been given by such a witness. It is not for the accused to establish what they might be. Remember that the Crown has to prove the essential aspects of its case and the accused does not have to prove anything.
Experience has shown that once such a witness has given a version to the police which incriminates an accused, he or she may feel locked into that version, even if it contained inaccuracies or even if it were substantially untrue.
[Where appropriate: Finally, in relation to the evidence of [the witness] a number of [his/her] motives for lying, or possibly lying were explored.

[The relevant evidence relating to the alleged unreliability of the witness should be referred to.]

When assessing the evidence of [the witness], you must remember the warnings and directions I have just given to you.

[Note: If the witness could lose the benefit of a reduction in sentence if he or she failed to give the evidence he or she undertook to give at the accused’s trial, the jury should be informed that if the undertaking was breached s 5DA Criminal Appeal Act 1912 is a mechanism by which the benefit of the sentence received by the witness could be removed. The jury would not know such a mechanism existed unless they were so informed by the trial judge: see R v Stewart (2001) 52 NSWLR 301 at [18]–[24], [43] applied in R v Attalah [2004] NSWCCA 318.]

[4-387] No corroborative evidence needed

In R v Kanaan [2006] NSWCCA 109, the court said at [217]:

… the effect of ss 164–165 [Evidence Act] (as now interpreted by the High Court) is as follows:

(1)

It is not necessary for the evidence of a witness who may reasonably be supposed to have been criminally concerned in the events giving rise to the trial to be corroborated.

(2)

The judge, if requested to do so and unless of opinion that there are good reasons not to do so, is:

(a)

to give a warning that the evidence of that witness may be unreliable,

(b)

to inform the jury of matters that may cause it to be unreliable, and

(c)

to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3)

The matters to which reference was generally made in the directions which accompanied the common law accomplice warning … should, when appropriate, generally be used when informing the jury of the matters which may cause the evidence of that witness to be unreliable.

(4)

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.

[4-390] Exceptional use of the “dangerous to convict” formulation

In R v Robinson (2006) 162 A Crim R 88, Spigelman CJ reviewed the impact of ss 164–165 Evidence Act on prior case law in the context of a warning about the evidence of a prison informer. His Honour said at [4]–[5] that Parliament intended to enact a fresh start:

At common law the requirement to give directions in particular cases, including in the form that it was “dangerous to convict” on the uncorroborated evidence of certain categories of witnesses, had started off as rules of practice but had hardened into rules of law…

Section 164 of the Evidence Act has swept aside these rules of law. They have been replaced by a new regime in s 165 which both mandates a form of warning (s 165(2)) and preserves the discretion to give additional warnings (s 165(5)).

His Honour cited the approach taken in R v Kanaan [2006] NSWCCA 109 at [210]–[217] to accomplice warnings with approval: see [6]–[8].

Later His Honour said at [19]:

The formulation “dangerous to convict” is a powerful direction, capable of being understood, and in my opinion, is frequently understood, by a jury as, in effect, a direction by the judge to acquit the accused. It is a formulation that is best avoided, save in exceptional circumstances.

Simpson J at [20] and Johnson J at [166] agreed. Although the case concerned warnings in relation to prisoner informers, the comment at [19] clearly has wider application to warnings given under s 165 — including a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding.

R v Kanaan and R v Robinson were applied in R v GAR (No 2) [2010] NSWCCA 164 at [103].

[4-392] Suggested direction

In these proceedings the Crown relies upon the evidence of [the witness] who the Crown contends is a person who was, or might have been, involved in the alleged crime.

In addition to the detailed warnings I have already given to you, I must add a warning that it would be dangerous for you to be satisfied beyond reasonable doubt of the guilt of the accused on the evidence of [the witness] unless you are satisfied that his/her evidence is supported or confirmed by other evidence which indicates that such evidence is true.

In this respect, what you must look for is evidence from an independent source which tends to show not only that the crime charged was committed but that the accused was implicated in it in the way alleged by the Crown.

[The evidence relied upon by the Crown as supportive or confirmatory evidence of the witness should be identified].

Whether the matters I have mentioned, or any of them, provide support or confirmation of the evidence of [the witness] is a matter for you as the judges of the facts. This will depend on whether you accept, as reliable, the relevant evidence, and what, if any, significance you attach to it.

Finally, even if you do not find any other relevant evidence which supports or confirms the evidence of [the witness], you may still convict on that evidence if, after taking into account the warnings I have given you, you are nevertheless satisfied beyond reasonable doubt, after scrutinising the evidence with great care, that it is truthful and reliable.

[4-395] Where evidence not entirely adverse to the accused

The High Court decision of Jenkins v The Queen (2004) 79 ALJR 252, which emanated from Victoria, is a common law “accomplice” case. It partly assists in relation to s 165(1)(d) warnings.

The court held, unanimously, that there is no requirement to give the warning where the evidence given by an accomplice is substantially undisputed: Jenkins v The Queen at [30], [34]. The court observed that the Evidence Act provides that it is not always necessary to warn the jury and that the Act had “substituted a more flexible requirement”: Jenkins v The Queen at [26].

If there is an issue which the jury might have to resolve in order to reach a verdict of guilty, and an accomplice’s evidence relates to that issue, an accomplice warning must be given if the acceptance of that evidence is, or could be, a step taken by the jury in reasoning to a finding of guilt. The relevance of the accomplice’s evidence to the issues in the case will usually be apparent from the examination or cross-examination of the accomplice, or from what is said in the closing address. If the evidence of an accomplice is not contested, there will be no issue to which the accomplice’s evidence relates which the jury will need to resolve in reasoning to a verdict of guilty and an accomplice warning will not be necessary: Jenkins v The Queen at [33].

[4-397] Where an accused gives evidence implicating another accused

The High Court held in Webb v The Queen (1994) 181 CLR 41, that when an accused gives evidence implicating another accused, the question whether an accomplice warning should be given and, if so, in what terms, cannot be answered without reference to the unique circumstances of the case: Webb v The Queen at 65.

If in such a case the judge considers it necessary or appropriate to give a warning, it must be done in a way which makes clear that the warning relates only to the use of the evidence as against the co-accused and does not lead the jury to believe that the warning attaches to the accused’s evidence in his own case: Webb v The Queen at 66–67; Proud v R (No 2) [2016] NSWCCA 44 at [58]–[73].

These difficulties are helpfully discussed in R v Diez-Orozco [2003] NSWSC 1050; R v Johnston [2004] NSWCCA 58 at [149] and R v Jacobs (2004) 151 A Crim R 452 at [265]–[287] in the context of s 165(1)(d) Evidence Act.