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9

Indemnities and Undertakings
   
9.1 There are two types of immunities under section 21 Director of Public Prosecutions Act. There is an indemnity from prosecution whether on indictment or otherwise (section 21(2)(b)) and there is an undertaking that an answer, statement or disclosure made by a person will not be used in evidence against the maker (section 21(2)(c)).
   
9.2 In principle it is desirable that the criminal justice system should operate without the need to grant any concessions to persons who participate in alleged offences in order to secure their evidence in the prosecution of others. A decision whether to call an accomplice to give evidence for the prosecution frequently presents conflicting considerations calling for the exercise of careful judgment in the light of all the available evidence. Invariably, however, there will be instances where there is a weakness in the prosecution evidence that makes it desirable, or even imperative, for the prosecution to call an accomplice.
   
9.3 An indemnity or undertaking will only be given as a last resort. Generally an accomplice should be prosecuted (subject to these Guidelines) whether or not he or she is to be called as a witness. An accomplice who pleads and agrees to co-operate in the prosecution of another is entitled to receive a consequential reduction in the sentence that would otherwise have been appropriate. The prosecutor should obtain a signed statement from the accomplice and that statement should set out what evidence the accomplice will provide. The prosecutor should also disclose to the court that such a statement has been provided and indicate the level of assistance provided by the accomplice to either the prosecutor or the police. There may be rare cases, however, where that course cannot be taken; for example, time may not permit charges against the accomplice to proceed to conviction before the trial of the principal offender, or there may be insufficient admissible evidence to support charges against the accomplice – Guideline 19: Informers.
   
9.4 Where an accomplice receives any concession or inducement from the prosecution in order to secure his or her evidence, whether as to choice of charge, or the grant of an indemnity or undertaking, the terms of the agreement or understanding between the prosecution and the accomplice should be disclosed to the defence and the court – Guideline 19: Informers.
   
9.5 A grant of an indemnity or undertaking will only be made by the Director after consideration of a number of factors, the most significant being:
   
  (1) Whether or not the evidence that the accomplice can give is reasonably necessary to secure the conviction of the offender;
  (2) whether or not that evidence is available from other sources; and
  (3) the relative degrees of culpability as between the accomplice and the offender.
   
9.6 In all cases it must be able to be demonstrated that the interests of justice require that the immunity be given.
   
9.7 The accomplice’s statement must be in existence in some form before a request for an indemnity or undertaking is made.
   
9.8 Any request to the Director for an indemnity or undertaking pursuant to section 21 Director of Public Prosecutions Act must be made in a timely manner and the prosecutor must address the following matters:
   
  (1) the accomplice’s attitude to testifying without an indemnity or undertaking;
  (2) the existing prosecution case against the offender, both with and without the evidence of the accomplice;
  (3) the evidence which the accomplice is capable of giving (including the significance of that evidence for the prosecution case, an assessment of its reliability and whether or not there is evidence capable of corroborating the accomplices’ evidence);
  (4) an assessment of the weakness in the prosecution case being strengthened other than by relying on the evidence of the accomplice;
  (5) the level of involvement and culpability of the accomplice in the offence;
  (6) the general character of the accomplice together with a copy of his or her prior criminal record;
  (7) the views of any other relevant Territory, State or Commonwealth investigatory or prosecuting authority; and
  (8) public interest issues, including the comparative seriousness of the offending as between the offender and the accomplice, and whether or not the accomplice could and should be prosecuted (including the quality of the evidence against the accomplice, and the likely sentence).
   
9.9 In most cases an undertaking is to be preferred to an indemnity.
   
9.10 In the course of an investigation the police may identify a participant in the criminal activity under investigation as a person who is likely to be of more value as a prosecution witness than an offender. Thereafter the investigation may be directed at constructing a case against the remaining participants based on the evidence it is expected this person will give. It is prudent for the police to consult the Director as to the appropriateness of such a course.