15. Indemnities to witnesses and sentencing of informants

15.1 Indemnities

The Director is empowered pursuant to s12(1)(eb) of the Director of Public Prosecutions Act 1973 to grant indemnities from prosecution. Pursuant to s12(1)(ec), the Director has the power to give undertakings to persons that answers given or statements or disclosures made by them will not be used against them in evidence.

In principle it is desirable that the criminal justice system should operate without the need to grant any concessions to persons who participated in alleged offences in order to secure their evidence in the prosecution of others, e.g. by granting them immunity from prosecution. However, it has long been recognised that in some cases this course may be appropriate in the interests of justice. Nevertheless, an immunity under s12(1)(eb) or (ec) will only be given as a last resort.

In this regard, as a general rule an accomplice should be prosecuted irrespective of whether he or she is to be called as a witness, subject of course to the usual evidentiary and public interest considerations being satisfied. Upon pleading guilty the accomplice who is prepared to co-operate in the prosecution of another can expect to receive a substantial reduction in the sentence than would otherwise have been appropriate. However, this course may not be practicable in some cases. 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 alone.

Apart from being a course of last resort, an immunity under s12(1)(eb) will only be granted provided the following conditions are met:

• the evidence that the witness can give is considered necessary to secure the conviction of the accused, and that evidence is not available from other sources
• the witness can reasonably be regarded as significantly less culpable than the accused.

The central issue in deciding whether to give an accomplice an immunity is whether in the overall interests of justice the prosecution of the accomplice should be foregone in order to secure that person's testimony in the prosecution of another.

However, unless exceptional circumstances exist, no indemnity from prosecution should be granted by the Office. Every attempt should be made to call the person as a witness after having first been tried or sentenced for the offences for which an indemnity from prosecution is sought.

If the person declines to co-operate, i.e. make a confession in an admissible form, and sufficient evidence does not exist for the prosecution of that person and his or her co-offenders and the co-operation of that person will not otherwise be obtained, the following conditions will apply to persons called to give evidence who seek an indemnity from prosecution:

• Any arrangement whereby a person is not prosecuted and is seeking an indemnity in return for co-operation, assistance and the giving of evidence can only be entered into with the prior written approval of the Director.
• Any submission to the Director seeking approval of an arrangement with a person seeking indemnity must be in writing and set out the reasons supporting an arrangement with the witness.
• Unless exceptional circumstances exist, the only arrangement which the Director will contemplate whereby a person suspected of having committed a crime is not prosecuted for that crime in return for their co-operation in the prosecution of others is as follows:
  • A full statement of the evidence which the witness can give is taken from that witness without caution on the understanding that it is to be used only for an assessment of the extent and weight of the evidence which the witness can give (such statement should, preferably, be obtained either by a police officer or, as a second option, by the solicitor representing that person).
  • The statement is to be assessed by the prosecutor and discussed with or considered by the Director to determine its value in the prosecution of other persons. Factors to be taken into account in assessing the statement and the desirability of entering into an arrangement with the witness are:
    • the existence or lack of any other admissible evidence of the guilt of persons suspected or having committed the crime or crimes
    • whether or not the role of the person seeking indemnity is a principal or accessory/secondary participant
    • the credibility or reliability of the witness and the benefits to be obtained to the criminal justice system in entering into the arrangement
    • the need to take into account the view of any victim.
  • The witness must be prepared to give evidence in accordance with the statement and not seek a certificate under the Evidence Act 2001 prior to trial in the Supreme Court, i.e. no certificate can be sought at preliminary proceedings.
  • If the evidence which the witness can provide is necessary for the prosecution of a principal offender and/or others, the statement must then be attested on oath by the witness. The Office will then indicate that it will not use the sworn statement against the witness and, provided no certificate is sought at any preliminary hearing and the sworn evidence is given in a satisfactory manner at trial, the Office will not oppose an application made by the witness at trial for a certificate under s128 of the Evidence Act 2001.
  • From the moment the statement is attested the co-operation of the Director in not prosecuting the witness and not opposing the application for a certificate is dependent upon the compliance by the witness with the preceding paragraph.

All indemnities will be conditional upon the recipient providing truthful evidence.

Where an indemnity has been granted and that person is called against another, the fact that an indemnity has been granted and the terms of it should be disclosed to the defence counsel.

Under no circumstances will the Director grant indemnity from prosecution for future conduct.

15.2 Sentencing of informants

Sentencing must generally take place in open court, and any mitigation or discount afforded by past or promised co-operation must be identified in the reasons for sentence. Therefore, letters from police officers or other investigating agencies should not be handed to a judicial officer on the premise that the contents will remain confidential. In rare, exceptional circumstances application can be made to the Director for such a letter to be tendered. However, even in such circumstances the defendant should be told that no guarantee can be made that the contents of the letter will not be made public. Tasmania Police should inform the Office of any request they have received from an accused person or their counsel.

Before the prosecutor refers the court to past informing, the express agreement of the person to be sentenced (or their counsel when represented) ought to be obtained, both as to the mention of the informing and the description to be given to it. Unless the person to be sentenced has agreed to give evidence against others (or has given such evidence) it should be sufficient to describe the giving of past information as having been either "regarded by police as valuable" or "regarded by police as extremely valuable". Information which falls within neither one category nor the other should not be given mention by the prosecution. Of course, whichever description is used must be agreed to by the investigating police. It is not desirable for the prosecutor to seek or to be given further information or details of past informing.

If the person to be sentenced promises to give evidence at the trial of others, and wants that matter taken into account, the prosecutor should particularise who and in relation to what crimes he or she has promised to give evidence about, and should encourage the sentencing judge to articulate any discount given in sentence for such promised co-operation.
Where a person has been sentenced on the basis he or she will co-operate and subsequently that co-operation is not forthcoming, the prosecutor should consult with the Director about appealing the original sentence (see R v Stanley [1998] TASSC 13).