4.23 - Criminally Concerned Witness Warnings

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Overview

  1. Under s32 of the Jury Directions Act 2015, a judge may be required to warn the jury about the potential unreliability of evidence if that evidence has been given by a witness who might reasonably be supposed to have been "criminally concerned" in the events giving rise to that proceeding.
  2. A "criminally concerned witness" warning is a particular form of an unreliable evidence warning. This topic should therefore be read in conjunction with Unreliable Evidence Warning.

    Jury Directions Act 2015 s32 Unreliability Warning

    When must a s32 unreliability warning be given?

  3. A judge must give a s32 unreliability warning if:
  4. See Unreliable Evidence Warning for information concerning the first and third requirements.
  5. In relation to the second requirement, Jury Directions Act 2015 s31(c) states that evidence given by a witness in a criminal proceeding who "might reasonably be supposed to have been criminally concerned in the events giving rise to the trial" is evidence "of a kind that may be unreliable".

    Who is a "criminally concerned" witness?

  6. To fall within the scope of s31(c), a witness may have been criminally concerned in the relevant events in any way. He or she does not need to be facing the same charges as the accused, or to have been charged with any criminal offence (Jury Directions Act 2015 s31(c)).
  7. However, the witness must have been "criminally concerned" in the relevant events. Section 31(c) does not apply to witnesses who had some innocent involvement in the events giving rise to the proceeding.
  8. It is therefore doubtful that s31(c) would apply to witnesses who were legitimately involved in the events giving rise to the proceeding, but who engaged in collateral crime (e.g., police officers who investigate an offence, but who steal property from the crime scene) (R v Lonie & Groom [1999] NSWCCA 319 at [63]).
  9. The category of witnesses covered by s31(c) includes most[1] of the witnesses who were previously covered by the rule of practice that required corroboration warnings in respect of "accomplices" (R v Lonie & Groom [1999] NSWCCA 319).

    Accessories after the fact

  10. It is not clear whether accessories after the fact (e.g., people who conceal an offence) fall within the scope of s31(c) (Kanaan v R [2006] NSWCCA 109 at [203]; R v Clark (2001) 123 A Crim R 506 at [53]).
  11. This may depend on the interpretation given to the phrase "the events giving rise to the trial". If it is held that this phrase only covers events that occurred prior to the completion of the offences alleged against the accused, then accessories after the fact will not fall within the scope of s31(c) (R v Clark (2001) 123 A Crim R 506 per Heydon JA at [70]).
  12. Even if it is decided that accessories after the fact are not covered by s31(c), this does not mean that a s32 unreliability warning need not be given. Such a warning may still be required if the evidence is "of a kind that may be unreliable". See the discussion of "Non-Listed Categories" in Unreliable Evidence Warning.
  13. When a judge is considering whether or not a warning is necessary, special attention should be paid to the accessory witness’s possible interest in the outcome of the proceedings:

    Determining whether the accused is "criminally concerned"

  14. Where a s32 unreliability warning is requested, and the question of whether or not a witness "might reasonably be supposed to have been criminally concerned" in the relevant events (and thus falls within the scope of s31(c)) is in issue, that matter must initially be determined by the trial judge as a question of fact (R v Stewart (2001) 52 NSWLR 301 at [125]; R v Taranto [1999] NSWCCA 396).
  15. For a witness to fall within the scope of s31(c), the judge does not need to find that he or she actually was criminally concerned in the relevant events, either on the balance of probabilities or beyond reasonable doubt. The judge only needs to find that there is evidence capable of raising a "reasonable supposition" that the witness was tainted in this way (Jury Directions Act 2015 s31(c)).
  16. A judge who finds that the factual conditions for the warning are not met, and thus refuses a request for a warning under s31(c), should give reasons for that refusal (unless it is obvious that the witness does not fall within the suggested category) (R v Taranto[1999] NSWCCA 396).
  17. Even if the judge decides that the witness was not criminally concerned in the relevant events, this does not mean that a s32 unreliability warning need not be given. Such a warning may still be required if the evidence is "of a kind that may be unreliable."[2] See the discussion of "Non-Listed Categories" in Unreliable Evidence Warning.

    Being a criminally concerned witness is not conclusive

  18. In rare and exceptional cases, a judge may have good reasons for not giving a warning despite the fact that the witness is a ‘criminally concerned witness’ (see R v Clark (2001) 123 A Crim R 506 per Heydon JA).
  19. Where a criminally concerned witness gives evidence for the defence exculpating the accused, it is unlikely to be evidence "of a kind that may be unreliable" in the sense addressed by s32. If the witness does not implicate the accused, the danger that the witness is shifting his or her own blame to the accused in order to diminish his or her own culpability does not arise (R v Ayoub [2004] NSWCCA 209 at 216. See also Anile v The Queen [2018] VSCA 235R, [206]).

    Content of the s32 unreliability warning

  20. A s32 unreliability warning must:
  21. See Unreliable Evidence Warning for information concerning the first and last requirements.
  22. In informing the jury about the significant matters that may cause s31(c) evidence to be unreliable (the second (and third, in the case of child witnesses) requirement), the judge should refer to the matters identified by the party requesting the direction which are significant (Jury Directions Act 2015 s32(3)).
  23. The risk factors identified in the common law accomplice warning can provide guidance for judges and practitioners on risks which may be significant (Kanaan v R [2006] NSWCCA 109 at [164]-[166], [217]).[3]
  24. The principal danger addressed by the common law accomplice warning was the natural tendency of an accomplice to minimise his or her role in a criminal episode, and to exaggerate the role of others, including the accused (Jenkins v R (2004) 211 ALR 116).
  25. Prior to the introduction of the UEA, judges in New South Wales also used to warn juries that it was the court’s experience that accomplices who give a false version of events to police may feel locked into that version, and for that reason feel bound to relate the same version when giving evidence. This warning remains part of the model Evidence Act 1995 s165(1)(d) warning in New South Wales, on which s31(c) is based. Whether a judge needs to direct the jury on this matter will depend on whether it is identified in the request as a significant matter (see the directions endorsed in R v Stewart (2001) 52 NSWLR 301 at [135]).
  26. The fact that the witness was involved in criminal activity may be relevant to his or her credit, and it may be appropriate to direct juries about this. However, if the jury is otherwise aware of the impact of this factor on the witness’s credibility, there will be no need to refer to it in the s32 warning (Kanaan v R [2006] NSWCCA 109 at [164]).
  27. Judges are not required to inform the jury that people who are involved in the commission of an offence may make false claims about the involvement of others out of motives of revenge or antipathy. The existence of this possibility will be obvious to any jury (R v Stewart (2001) 52 NSWLR 301 at [128]; R v Wood [2001] NSWCCA 228).
  28. Jury Directions Act 2015 s31(c) does not use the term "accomplice", and it should not be used in jury directions. The use of that word may convey to the jury that the judge believes that the witness is an accomplice of the accused and, therefore, that the judge has formed the view that the accused is guilty (R v Stewart (2001) 52 NSWLR 301 at [21] & [126]).
  29. While the judge may invite the jury to look for other evidence to support the evidence of a criminally concerned witness, the judge must not tell the jury that, if they find the witness’s evidence to be supported, they are entitled to treat it like the evidence of any other witness. A criminally concerned witness remains a person with a potential motive to lie, and his or her evidence remains potentially unreliable (Sonnet v R (2010) 30 VR 519; R v Parsons (2004) 145 A Crim R 519).

    Indemnities and sentencing benefits

  30. It will often be the case that a witness who was criminally concerned in the relevant events will give evidence in return for receiving a sentencing benefit or an indemnity from prosecution (either in general or in relation to specific charges). This fact may affect the reliability of his or her evidence.
  31. In Victoria, the common law recognised that it would sometimes be appropriate for these additional matters to be raised in the accomplice warning. However, as the risks these considerations created would often be sufficiently apparent from the evidence and counsel’s addresses, this was not seen to be mandatory in every case (R v Weiss (2004) 8 VR 388).
  32. In New South Wales, the current tendency is to require judges to incorporate an explanation of the detail and consequences of any benefit given to a co-operating witness within the Evidence Act 1995 (NSW) s165 warning. One rationale for this is the requirement that the s165 warning inform the jury of all the matters that may cause evidence to be unreliable (R v Stewart (2001) 52 NSWLR 301; Kanaan v R [2006] NSWCCA 109; R v Sullivan [2003] NSWCCA 100).
  33. However, it has been recognised that not every indemnity will be a "matter that may cause evidence to be unreliable". For example, there may be no need to make reference to an indemnity that protects the witness from prosecution for unimportant crimes (see R v Clark (2001) 123 A Crim R 506 at [37]; R v Powercor (Australia) Ltd [2005] VSCA 163; R v Smith & Turner (1995) 80 A Crim R 491).
  34. Under the Jury Directions Act 2015, it is likely that courts will adopt a flexible approach based on the views of the parties. Where a party does not identify the indemnity or sentencing benefit as a significant matter, the judge may ask whether this direction is required.

    The jury’s role in determining the need for caution

  35. In many cases it will be accepted without issue that the witness in question falls within the scope of Jury Directions Act 2015 s31(c). In such cases the judge should simply warn the jury that his or her evidence may be unreliable, inform them of the significant matters that may cause it to be unreliable, and warn them of the need for caution in determining whether to accept the evidence and the weight to be given to it (Jury Directions Act 2015 s32).
  36. However, in some cases it will not be clear whether or not the witness actually does fall within the s31(c) category. In such cases, the judge must determine if it "might reasonably be supposed" that the witness was criminally concerned in the events giving rise to the proceeding. If so, and if the prosecution or defence counsel requests a direction, a s32 unreliability warning should generally be given.[4]
  37. At common law, a direction made in this circumstance would have been conditional upon the jury being satisfied that the witness was an accomplice. It is possible that a warning under s31(c) should be subject to a similar condition. That is, it is possible that the jury should be warned that they need only have regard to the warning if they are satisfied that the witness was (or alternately, "might be", or "might reasonably be supposed to be") criminally concerned in the events giving rise to the proceeding.
  38. There is no authoritative guidance on this issue.[5] However, it is doubtful that this approach would be consistent with the policy of s32 of the Jury Directions Act 2015 and its statutory predecessor, s165 of the Evidence Act 2008. Following this approach would reintroduce a requirement similar to the common law requirement to direct on the identification of accomplices. It would also reintroduce complexities about onuses and standards of proof, and the distraction of a collateral issue.
  39. The preferable approach is to permit the need for the direction to turn solely on the judge’s assessment under s31(c). Thus even in cases where the witness’s status is in issue, the jury should be warned in the simple terms described above.

    Residual Duty to Warn

  40. Under Jury Directions Act 2015, a judge must give a warning in the absence of a request if there are ‘substantial and compelling’ reasons to do so.
  41. Prior to the introduction of the Jury Directions Act 2015 there were two common law bases upon which a warning might have been required in such circumstances:
  42. It seems likely that the rule of practice concerning accomplices (which required judges to warn the jury about the dangers of convicting on the uncorroborated evidence of an accomplice) has been abrogated by Evidence Act 2008 s164(4) (which prohibits judges from warning the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect).
  43. Under the second basis, the common law recognised that a warning may be necessary and practical to avoid a perceptible risk of a miscarriage of justice (Bromley v R (1986) 161 CLR 315; R v Miletic [1997] 1 VR 593; Robinson v R (2006) 162 A Crim R 88 at [10]).
  44. The need for this warning was not determined by reference to categories of witness. It was only required when:
  45. The circumstances in which a common law warning was required closely resemble the circumstances in which a s32 unreliability warning is required (see above). This was noted by the court in Robinson, which observed that the equivalent section under the Evidence Act 2008 gave effect to the principles stated in Bromley v R (1986) 161 CLR 315 (Robinson v R (2006) 162 A Crim R 88 at [10]-[13]).
  46. Judges must therefore consider the need to warn the jury about the potential unreliability of evidence, even if the parties have not requested such a warning.

    Notes

[1] While it is clear that "true accomplices" (those who were participants in the accused’s alleged offence) fit within s31(c), some secondary categories of "accomplice" may not. For example, it seems likely that accomplices in respect of uncharged offences that have been led in evidence against the accused, or receivers of stolen goods (if they give evidence against the alleged thief of those goods), do not fall within the scope of s31(c), despite being classified as "accomplices" at common law by Davies v DPP [1954] AC 378.

[2] Examples of similar kinds of evidence which may require a Jury Directions Act 2015 s32 unreliability warning due to being "of a kind that may be unreliable" include:

Evidence of a witness with an accomplice-like motive to lie (see, e.g., R v Ali [2002] VSCA 194);

Evidence from a police informer (see, e.g., R v Reardon & Ors [2002] NSWCCA 203; R v Dellapatrona and Duffield (1993) 31 NSWLR 123);

Evidence of an alternative suspect (see, e.g., R v Faure [1993] 2 VR 497; R v Mitchell [2006] VSCA 289; R v Campbell 14/11/1994 CCA Vic);

Evidence of a witness who has a poor criminal record or who is otherwise part of the criminal milieu (see, e.g., R v Latina 2/4/1996 Vic CCA; R v Hickey (1995) 89 A Crim R 554).

[3] It may be "inappropriate" to refer to a risk factor recognised at common law where that factor clearly does not arise in the circumstances of the case.

[4] See "Determining whether the accused is ‘criminally concerned’" above.

[5] In R v Taranto [1999] NSWCCA 396 Hidden J stated in passing at [38] "Whether the witness was in fact criminally concerned in the relevant events, of course, would be a matter for the jury to determine."

Last updated: 27 March 2019

In This Section

4.23.1 - Charge: Criminally Concerned Witnesses

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings