When someone is implicated in criminal activity, they may be able to mitigate liability by cooperating with law enforcement as a witness.
The Commonwealth Director of Public Prosecutions (CDPP) provides a manual that clarifies its policy on undertakings, offers of assistance and induced statements.
What is an undertaking to give evidence as a Prosecution witness?
An undertaking occurs when following a formal request from the CDPP, someone agrees to act as a witness and provide testimony in the prosecution of another person.
In deciding whether someone should be given an undertaking, the CDPP will consider:
- The person’s level of involvement in the criminal activity for which the defendant has been charged.
- If they were involved, does their level of involvement warrant prosecution even if they were to cooperate with law enforcement?
- The evidence they will be able to provide, and the extent to which this will strengthen the prosecution’s case.
- Will this evidence be admissible in court?
- Can the evidence be obtained in another way?
- Whether any reward or inducement has been offered to the person in exchange for their cooperation.
- The general character of the person and any prior charges.
How does immunity apply to undertakings?
Someone who cooperates with a requested undertaking may be entitled to immunity from prosecution or a reduction in proposed charges.
Immunity can extend to conduct that is brought to light by the provided evidence, including in any other civil or criminal proceedings that draw on this evidence. The person giving the undertaking is effectively protected from incriminating themselves.
The logic behind this is that if the person perceives a risk of prosecution, they are unlikely to fully cooperate, and it may be in the interests of justice to forego prosecuting them to secure full cooperation.
The CDPP clarifies that the aforementioned manual does not apply to the consideration of an application for immunity from prosecution by a person implicated in a serious cartel offence. The consideration of such applications is made in accordance with Annexure B of the Prosecution Policy of the Commonwealth.
What role do induced statements play in this process?
The defence may approach the CDPP to offer the participation of the defendant as a prosecution witness. If it is determined that the person is likely to be of more value as a witness for the prosecution than a defendant, an induced statement may be taken, where the person sets out the evidence that they would be able to provide, and states that they would be prepared to give evidence in court as a witness.
This statement can be used to support an application for an indemnity from prosecution, however there are no guarantees that indemnity will be granted. The statement will not be used in evidence in any criminal proceedings against the person.