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Jailhouse informants are among the most dangerous of witnesses and New Zealand should consider tightening its rules around their use, a campaigner against wrongful convictions and former Canadian justice official says.
Bruce MacFarlane QC was a Canadian Crown prosecutor, academic and former Deputy Justice Minister for the state of Manitoba, who helped draft tighter guidelines for the use of jailhouse witnesses there.
Mr MacFarlane is visiting New Zealand to speak about wrongful convictions at an event hosted by a group called Justice For All.
Convicted double murderer David Tamihere is also speaking at the event.
Three jailhouse informants gave evidence against Tamihere in his 1990 murder trial for the killing of two Swedish tourists
In 2017, one of those informants was found guilty of multiple counts of perjury for lying at that 1990 trial. Tamihere was paroled in 2010 and has always maintained his innocence.
Mr MacFarlane says it is difficult to estimate the number of wrongful convictions, but based on research he believes it is around one to two percent across Western countries. While there are usually multiple causes for that, he says, jailhouse informants are among the main ones.
"In very general terms, they are highly unreliable, almost to the point of being dangerous. They have been characterized as the most dangerous witness that ever goes near a courthouse.
"They were in jail at the time that they say they received a confession from the accused person. So they're in jail for a reason. They're criminals. They often have serious criminal records. They don't want to be in jail, and they'll do almost anything to get out.
"So they will literally put up their hands and say, 'you know, that fellow made a confession to me. So if you're interested in having that, let's sit down and see if we can make a deal here'.
"And often, they've simply made up the confession. It didn't take place, but that's their ticket out."
Prison bars, hands, generic Photo: 123RF
New Zealand has seen several high-profile court cases in which jailhouse informants were used, including the trials of Tamihere, Scott Watson and Mark Lundy.
They were also used in cases against Teina Pora and Arthur Allan Thomas, which turned out to be miscarriages of justice.
The 2017 case in which the jailhouse informant was convicted for giving false evidence against Tamihere was a private prosecution, taken by Arthur Allan Thomas.
In New Zealand, the Crown has never charged a jailhouse informant for perjury.
Mr MacFarlane says a main reason for an inmate to give false evidence is the sense they have nothing to lose, and informants have to be clearly told of the consequences if they lie.
"They don't face many consequences. There might be some jailhouse consequences in terms of going into segregation… but that has to be approved by correctional authorities who are not connected to the case."
In 2018, the Justice For All group wrote to Justice Minister Andrew Little, calling for the use of jailhouse informants to be overhauled, and for New Zealand to adopt the Manitoba Department of Justice guidelines that Bruce MacFarlane helped draft.
Under the policy, jailhouse informants are not called except in the most exceptional of circumstances, and after a rigorous credibility protocol has been met.
Mr MacFarlane says jailhouse informants "have all but disappeared from Canadian courtrooms".
"I do believe strongly in the jury system, but a High Court judge in New Zealand a number of years ago in a report to government commented on that. He said juries are good at many things, but in his view, they're not well-positioned to assess whether a jailhouse informant is telling the truth because they don't understand the environment in jail.
"The tremendous pressure [for prisoners] to get out, is not fully understood by jurors."
Fifteen years ago, retired High Court judge Sir Thomas Thorpe recommended changes to the use jailhouse informants in New Zealand.
"I hate to be critical of another country," Mr MacFarlane says. "But I think it's important for New Zealand to start the discussion, to start to start the dialogue on this, and to realise the dangers posed by jailhouse informants. It's real, and can easily lead to a miscarriage of justice."