(Part 3 of the Act)
11.107Section 122 is the general provision relating to judicial directions about evidence which may be unreliable:
122 Judicial directions about evidence which may be unreliable
(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—
(a) whether to accept the evidence:
(b) the weight to be given to the evidence.
(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:
(a) hearsay evidence:
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a Police station, or another place of detention:
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.
(3) In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4) It is not necessary for a Judge to use a particular form of words in giving the warning.
(5) If there is no jury, the Judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.
(6) This section does not affect any other power of the Judge to warn or inform the jury.
11.108We have received a suggestion that we consider whether s 122 should be amended to provide trial judges with more guidance as to when a warning should be given and what such a warning should contain, similar to the approach in s 126 (judicial warnings about identification evidence). Detailed discussion of s 126 is contained earlier in this report in the chapter relating to identification evidence.
11.109Section 122 confers significant discretion on the trial judge. Although the judge is required to consider whether to give a warning in relation to certain types of evidence, the judge is not required to give such a warning. Subsection (4) makes it clear that no particular form of words is required for the warning. The section differs from s 126 of the Act which makes a warning mandatory in certain circumstances, and also sets out matters which must be included in the warning.
11.110 Guidance as to how the discretion contained in s 122 should be exercised was set out by the Court of Appeal in Taylor v R:
It follows that the Judge’s task is to isolate potentially unreliable evidence and to direct the jury expressly on it, if the Judge considers it was possible that the jury might give it too much weight without a direction. Such a direction would need to be accompanied by a short explanation of why the evidence might be considered unreliable. While the form (or intensity) of the warning will be a matter of discretion for the Judge, who will have the best appreciation of the trial dynamics, it remains part of the appellate function to consider whether a warning ought, in any particular circumstances, to have been given.
Most Judges will tread cautiously in determining whether to give a reliability warning. A specific warning about the reliability of particular evidence has the potential to influence the jury’s deliberations, one way or the other. The Court must always bear in mind the constitutional function of determining guilt rests with the jury, whose collective task it is to evaluate all relevant evidence. If a warning was given, it should be expressed as neutrally as circumstances permit.
11.111Other judgments amplify the points set out above:
- The form and intensity of the warning is a matter for the trial judge, who is “in the best position to gauge the intensity of the warning … Given the importance of trial dynamics to the form of the caution”. Courts have emphasised that subs (4) does not require any “particular form of words”.
- Generally, a warning should explain why the evidence may be unreliable. As the Court of Appeal stated in R v Ngarino “In our view, a warning under s 122 is unlikely to be effective if it does not explain to the jury the reasons why the evidence may be unreliable.” However, this may not be necessary if the jury is already sufficiently aware of the risks.
- The warning should be given in a neutral manner and does not need to set out the judge’s own unfavourable view as to reliability.
- Judges should tread carefully in deciding whether to give a warning to ensure they do not unduly influence the jury in determining reliability or overemphasise an issue.
11.112Numerous judgments also set out the view that a warning is not necessary where the issue of reliability (and its close relation, the credibility of the witness who gives the evidence) is already squarely before the jury. In such cases, there is a risk that a judicial warning under s 122 will exaggerate the importance of the evidence.
11.113The purpose of jury directions is to provide guidance to a jury as to how it should approach the evidence in its deliberations. They provide juries, who are not specialists in evidence law, with information about the limitations and risks that attach to certain forms of evidence. The paradigm example is the use of identification evidence. As outlined earlier in this report, research has shown that many jurors appear to believe eyewitnesses too readily, and have problems distinguishing between accurate and inaccurate eyewitnesses, and that assumptions people make about reliability (such as an ability to recall peripheral details) are not necessarily correct. The warning required under s 126 sets out matters that a judge should include in his or her direction to deal with these concerns.
11.114By way of contrast, a warning under s 122 can encompass a wide range of evidence, including, among other things, hearsay evidence, statements made by defendants while in custody, and witnesses who may have a motive to lie. As the reliability concerns underlying these types of evidence differ, it would be difficult to prescribe the content that should be contained in a warning. We considered whether there should be a general requirement for a warning under s 122 to contain reasons as to why the evidence to which the warning relates may be unreliable. However, as described above, we are satisfied that the Court of Appeal has already pronounced on the desirability of doing so. Further, there may be some situations where the provision of reasons is not appropriate or necessary, for instance, if the jury is already well-informed about the risks of such evidence and a further specific direction would serve no purpose, and risks overemphasising the evidence.
11.115Given the question of whether a s 122 warning should be given is so intimately connected to the dynamics of the trial process, we do not consider that further legislative guidance would be helpful. The trial specific nature of a s 122 warning, along with the wide range of situations s 122 covers, also weigh against further prescription as to what a direction under the section should contain.