The controversial use of prison witnesses in New Zealand’s justice system will finally be revisited.
Known as ‘prison whistleblowers’, these are criminals who claim another prisoner confessed to them in jail or admitted details of a crime in which they were involved.
In return for this evidence, they are often rewarded with reduced sentences for their own crimes, better conditions, or police support at sentencing or parole hearings.
Internationally, they are considered among the most controversial witnesses to appear in trials, with their evidence being accepted as potentially highly unreliable.
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Many countries have moved to restrict their use, but in New Zealand there is little to stop it, and prison informants have appeared in many high-profile murder trials, including Scott’s. Watson, David Tamihere, Mark Lundy, Teina Pora, Arthur Allan. Thomas and Stephen Hudson.
In 2017, notorious repeat offender snitch Roberto Conchie Harris was found guilty of eight counts of perjury for evidence he provided at Tamihere’s 1990 trial for the murders of Swedish tourists Urban Höglin and Heidi Paakkonen. .
Roberto Conchie Harris was convicted in 2017 of lying during the 1990 trial.
After years of concerns about the use of witnesses in prison in New Zealand, the Law Commission has announced that it will examine the issue in its latest review of the Evidence Act.
The commission, which advises the government on legal matters, is carrying out its third review of the law and looking at areas where reform may be needed.
Nichola Lambie, senior adviser to the commission, who is leading the review, said while other potentially problematic and unreliable areas of testimony – such as hearsay or visual identification evidence – were addressed in the Evidence Act, there was nothing specifically about using jail witnesses.
Two recent murder cases where the use of prison informants was challenged all the way to our highest court, and the suggestion of former Justice Minister Kris Faafoi, played a part in the Commission’s decision. of the right to examine the evidence of jail witnesses, Lambie said.
“I think there’s recognition, including by the Supreme Court, that this is an area that deserves further consideration.”
The commission’s review could go beyond traditional “cellmate confession” evidence to other forms of instigated witnesses, as well as statements from those accused of crimes during undercover police investigations, such as the operations of Mr Big.
Wellington lawyer Christopher Stevenson, one of the founders of the Defense Lawyers Association New Zealand, said he was incredibly heartened that such a well-known problem in our justice system was finally being looked into.
International evidence has proven jail snitches to be a leading cause of wrongful convictions, Stevenson said, but New Zealand authorities, including the Supreme Court in a split decision, and the Solicitor General, continued to authorize their use.
“The unvarnished truth, in 2022, is that there is a very clear picture that the criminal justice system is much more inaccurate than we previously thought. And it’s scary.
“And the answer is that these witnesses are too dangerous, and we have to stop this nonsense.
“We need to get rid of this type of evidence which is both unreliable and damaging because it simply does not meet the needs of a modern, streamlined criminal justice system.”
Stevenson said there was a perception that excluding the witnesses’ allegations from jail would allow the culprits to go free.
“But the truth is the reverse, the absolute opposite – if you allow it, you run a high risk of convicting the wrong person and the real culprit walking away.”
Stevenson said that because evidence and experience has shown that prison witnesses were likely lying, considering that the use of their testimony should only occur in the most exceptional circumstances where their evidence might prove to be true – like information about where a body could be and it turns out to be correct.
Guidelines released last year by the solicitor general on precautions prosecutors should take when dealing with witnesses in prison would not prevent their use, he said.
“It’s just a roadmap for using these cookies – it doesn’t change anything.”
Meanwhile, police have confirmed that they are now keeping a register of prison informants.
Previously, there was no way to track prisoners who repeatedly claimed cellmates had confessed to them, raising obvious concerns about their reliability and motivation.
The Law Commission will publish a discussion paper on its review of the Evidence Act in mid-2023.
After public consultation, it will make recommendations to the Minister of Justice in February 2024.