4.24 - Prison Informer Warnings

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  1. A judge may be required to warn the jury about the potential unreliability of evidence that has been given by a "prison informer".
  2. The duty to warn the jury about the potential unreliability of such evidence may arise under s32 of the Jury Directions Act 2015.
  3. This topic examines the need for a warning under s32 and the content of such a warning.
  4. A "prison informer" warning is a particular form of an unreliable evidence warning. This topic should therefore be read in conjunction with Unreliable Evidence Warning.

    Section 32 Unreliability Warning

    When must a s32 unreliability warning be given?

  5. A judge must give a s32 unreliability warning if:
  6. See Unreliable Evidence Warning for information concerning the first and third requirements.
  7. In relation to the second requirement, Jury Directions Act 2015 s31(d) states that evidence may be "of a kind that may be unreliable" if it is given by a "prison informer".

    Who is a "prison informer"?

  8. The term "prison informer" is not defined in the Jury Directions Act 2015. In cases considering the statutory predecessor to s31(d), Evidence Act 2008 s165(1)(e), the term was given its common law meaning (see, e.g., R v Ton (2002) 132 A Crim R 340 (NSWCCA) at [34] & [70]).
  9. At common law, a "prison informer" is a prisoner who gives evidence of an oral confession or admission made by another prisoner while in custody (Pollitt v R (1991) 174 CLR 558; R v Ton (2002) 132 A Crim R 340 (NSWCCA) at [34]).
  10. The following witnesses were identified at common law as falling outside the "prison informer" category:
  11. Even though the witnesses listed above may not be "prison informers" (and thus not fall within the scope of s31(d)), if their evidence is "of a kind that may be unreliable" a s32 unreliability warning may nevertheless be required.[1] See the discussion of "Non-Listed Categories" in Unreliable Evidence Warning for further information.

    Being a prison informer is not conclusive

  12. In rare and exceptional cases, a judge may have good reasons for not giving a warning despite the fact that the witness is a "prison informer" (R v Clark (2001) 123 A Crim R 506 (NSWCCA) per Heydon JA; Pollitt v R (1991) 174 CLR 558; R v Clough (1992) 28 NSWLR 396).

    Content of the s32 unreliability warning

  13. A Jury Directions Act 2015 s32 unreliability warning must:
  14. See Unreliable Evidence Warning for information concerning the first and third requirements.
  15. In informing the jury about the matters that may cause s31(d) evidence to be unreliable (the second requirement), the judge should, where appropriate, refer to the risk factors identified in the common law cases (see below) (Robinson v R (2006) 162 A Crim R 88 at [7]).[2]
  16. In doing so, care must be taken if the accused is also a prisoner. In such cases the judge must avoid undermining the benefit of the presumption of innocence by portraying the accused as an unreliable witness (R v Ton (2002) 132 A Crim R 340 (NSWCCA); R v Robinson (No. 2) (1991) 180 CLR 531).

    Risk factors identified at common law

  17. At common law, a prison informer’s evidence was regarded as inherently unreliable for the following reasons:
  18. In addition, in some cases a prison informer may actually receive a benefit from giving evidence against the accused. This may affect the reliability of his or her evidence (R v Stewart (2001) 52 NSWLR 301; Kanaan v R [2006] NSWCCA 109; R v Sullivan [2003] NSWCCA 100).
  19. Any identifiable benefit a prison informer has received or will receive from testifying will usually be a ‘significant matter that may make the evidence unreliable’ (see R v Stewart (2001) 52 NSWLR 301; Kanaan v R [2006] NSWCCA 109; R v Sullivan [2003] NSWCCA 100).
  20. A prison informer warning must be adapted to address the true dangers of the situation (Pollitt v R (1991) 174 CLR 558; Orman v R [2010] VSCA 246R).
  21. It will normally not be sufficient to simply direct the jury to look for evidence from some other acceptable source which implicates the accused. Even if such evidence exists (which it usually will), its mere existence does not address the dangers posed by relying on the evidence of prison informers (Pollitt v R (1991) 174 CLR 558; Orman v R [2010] VSCA 246R).

    Supporting evidence and informers

  22. At common law, judges were generally required to warn the jury about the dangers of convicting on the uncorroborated or unsupported evidence of a prison informer (Pollitt v R (1991) 174 CLR 558).
  23. It is now the case that a judge must not warn the jury about the dangers of convicting on the uncorroborated evidence of a prison informer (Evidence Act 2008 s164(4)).
  24. If a "supporting evidence" warning is to be of real use in this context, it must direct the jury to look for evidence which confirms the fact that the accused made a confession or admission to the witness (Pollitt v R (1991) 174 CLR 558).
  25. An example of this would be evidence that establishes that the disputed material in the alleged confession is accurate, and that that material would not have been known to the witness if the alleged confession had not been made (Pollitt v R (1991) 174 CLR 558; R v Kuster (2008) 21 VR 407).
  26. It is only in exceptional cases that a fellow prisoner can support the evidence of a prison informer (Pollitt v R (1991) 174 CLR 558).

    Other directions about confessions and admissions

  27. A s32 prison informer warning is a warning about the reliability of alleged confessions or admissions.
  28. In some cases, the jury may also need to be directed about the circumstances in which they can use evidence of alleged confessions or admissions (see Confessions and Admissions).[3]
  29. If a judge directs the jury on the use of a confession or admission allegedly made to a prison informer, it will often be appropriate to incorporate the s32 warning into that direction.

    Residual Duty to Warn

  30. 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.
  31. This may occur where neither party has requested a warning pursuant to s32, but the judge considers that there are ‘substantial and compelling’ reasons for giving the warning (R v Stewart (2001) 52 NSWLR 301 at [86],[94]; Singh v DPP (NSW) (2006) 164 A Crim R 284 at [39]]; Kanaan v R [2006] NSWCCA 109 at [130]; Robinson v R (2006) 162 A Crim R 88 at [5]).
  32. At common law, it was considered that a warning was required whenever a prison informer had given oral evidence of a confession or admission and that it was only in exceptional cases that a warning was not required (Pollitt v R (1991) 174 CLR 558).


[1] This may be the case if, for example, that type of witness has a motive to distance him or herself from blame, by slanting his or her evidence to blame others (see, e.g., R v Ali (No.2) (2005) 13 VR 257).

[2] 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.

[3] The jury may need to be told that they may only use an alleged confession or admission if they are satisfied that it was made by the accused, and that its substance is truthful (Burns v R (1975) 132 CLR 258).

Last updated: 29 June 2015

In This Section

4.24.1 - Charge: Confession to Prison Informer

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

4.23 - Criminally Concerned Witness 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