In their most recent report – the third review of the Evidence Act 2006, the Law Commission strongly recommended that highly controversial ‘evidence’ from ‘jailhouse snitches’ should be inadmissible. The Commission said that unless numerous factors can convince a judge the confession is reliable, these confessions should not be used due to their notorious unreliability.
The Law Commission is responsible for reviewing the suitability of our current laws and making recommendations to the Government to improve them. On 23 February 2024, the Commission completed its third review of the Evidence Act 2006, which was submitted to the Minister of Justice, and this report was presented to Parliament on 22 March 2024. Only three of the submitters were not in support of any of the options for change it proposed. Many academics and lawyers agree that this is an area of evidence law where greater caution must be taken. Prison informants or ‘jailhouse snitches’ refer to prisoners who come forward claiming that a fellow inmate confided or confessed details or doings of a crime. In compensation for offering their evidence, jailhouse snitches are often bribed with the promise of better prison conditions, reduced sentences for their convictions, and even the possibility of financial rewards. The committee described this as an unwritten and unregulated system in which prisoners know they will be rewarded if they come forward with a claim that another individual confessed. Obviously, this raises concerns about the credibility and reliability of such evidence. Previously, when the problematic nature of these witnesses was raised, the Crown argued that it was for the jurors to ascertain whether the prisoner was telling the truth about their fellow inmate. However, as part of the Law Commission's review of the Evidence Act, the recommendation is to normally exclude such evidence unless it is proven, on the balance of probabilities, to a judge that what they are claiming they heard or were told is reliable. New Zealand courts are not unfamiliar with such instances. Many of our high-profile cases feature a ‘jailhouse snitch’, including David Tamihere, Scott Watson, Mark Lundy, and Stephan Hudson, including the infamous wrongful convictions of Teina Pora and Arthur Allan Thomas. Back in 2017, notorious jailhouse snitch Roberto Harris was convicted of eight counts of perjury for the false evidence he gave against David Tamihere at his murder trial. Prosecutors frequently use these confessions in high-profile cases and often can persuade a jury. However, research has shown that the use of such evidence is one of the leading causes of wrongful convictions worldwide. Wellington Barrister Christopher Stevenson says this has been an urgent issue since 1980 and has contributed to many terrible miscarriages of justice. He predicts that if the Evidence Act were amended to make it almost impossible for snitches to give their claims in court, their willing offers to provide evidence would cease as there would be few incentives for them to come forward. Our previous justice minister, Andrew Little, described prison informants as “abject liars”. Further, he said it was “embarrassing to the reputation of our justice system that we’re one of the few countries in the world that still regularly rely on this evidence.”. The Auckland District Law Society’s Criminal Law Committee says that the fact that a ‘snitch’ appears in almost every high-profile case in this country cannot be seen as a coincidence, and it is a “national disgrace”. Police have been known to trawl through prisons, seeking out this category of evidence so they can close their case. Anna High, from the University of Otago, said there could be other wrongful convictions in New Zealand that relied on false jailhouse snitch evidence. She urges the Government to listen to the view of the Law Commission, which is “based on research, on a comprehensive analysis of the issue, and intensive consultation.” ADLS CLC believes that implementing such presumption regarding prison informant evidence being inadmissible is the only realistic safeguard to prevent further miscarriages of justice. A statutory presumption that excludes prison informant evidence would be the safest path forward except in exceptional circumstances where the prosecution could prove beyond a reasonable doubt that the evidence is truthful—for example, the discovery of a body. To determine reliability, the Commission recommends that a judge considers if their claims led to the discovery of other evidence, whether the informant could have learnt of the evidence elsewhere, whether any incentives have been offered or received for the evidence, or whether the person giving the evidence has a history of lying or offered ‘snitch’ evidence previously. Ultimately, the Law Commission can only make recommendations about the suitability of the laws, and it is up to the Government to decide if they agree and want to amend the Evidence Act to restrict this type of highly problematic evidence. Corrections staff have recently come under fire for their faculty's poor conditions and culture. Corrections has responded that whilst the department is “not out of the woods”, it maintains that change is happening despite the appalling four reports about nine prisons the Ombudsman presented.
Chief Ombudsman Peter Boshier appeared before members of Parliament at a select committee on 11 April 2024, presenting four reports about nine prisons. He said there was an unacceptable culture of containment in many. In front of the Justice Committee, Boshier said he would “leave the job disappointed” if he “hasn’t made any impact on the Department of Corrections that he could be proud of”. Considering that many of these concerns had been raised before in the previous Ombudsmen reports, this was incredibly disappointing as agencies tend to implement such changes due to those reports, but this is not the case with Corrections. Even though it has been almost three years since the last COVID-19 lockdowns, today's conditions closely resemble the situations of no visits, meaningful human contact, or rehabilitation continuing since the pandemic response. Boshier describes the Corrections approach as “glacial” and says that for too long, the department has blamed staff shortages when, in fact, there is now a culture embedded – “that a lot of things will be done in minimal fashion”. He suggests that whilst Corrections claims these practices are a product of poor staffing, he thinks these modes of operation suit the staff and adhere to this dismissive culture. Whilst the precarious lockdown period may have justified such restrictions for a shorter period, there is no reason for this restrictive regime of lock-ups and non-visits to continue into 2024. Across the country, the report found that proper visitation rights of friends or family have not been re-introduced. As part of his reports, he found that some prisoners were being held in segregation for over a year and were isolated from others for 23 or 24 hours a day. He further explains that this type of separation, in which you do not talk to anyone, takes an extremely harmful toll on one’s mental health. The newly built maximum security Auckland Prison is highlighted as being particularly problematic. Boshier explains that daily practices between inmates have become a lot more transactional. For example, prisoners no longer have much opportunity to interact with each other as they move between areas, and their meals are simply handed over to them without the opportunity for conversation. It is described as a way of managing and containing prisoners, like a “people storage unit”. Without meaningful human contact and rehabilitation programmes, the justice system is not living up to the reasonable standards of care for prisons and pushing the boundaries of breaching international expectations and prisoners’ rights. Boshier says that the way to change an organisation is through good and concentrated leadership. People involved in Corrections need to want to achieve change within the institution. It was not all bad news, however. One of the Ombudsman reports focused on Tongariro Prison, a minimum-security prison that Boshier said was operating well and should serve as an example for other prisons. “It’s doing the things you’d want it to do”, Boshier describes – it has a high Māori inmate population, and they are doing good things with iwi and good stuff with culture. The leadership at Corrections could do much more to promote this culture, which is needed to achieve a positive change, Boshier says. Deputy Commissioner of Prisons Neil Beales responded, saying he “respectfully disagrees” with Boshier’s comments. R v R [2023] NZSC 132
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