14 Accomplice Evidence

14.1 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. Inevitably, however, there will be instances where the only evidence available to the prosecution is that of an accomplice or where there would not be a sufficient case to bring a prosecution without the evidence of an accomplice. There may also be cases where the evidence of the accomplice, though not the only evidence or essential to the case, gives significant support to the prosecution.

14.2 In conjunction with the question whether to call an accomplice the question may arise whether that accomplice should also be prosecuted. In this regard, unless the accomplice has been dealt with in respect of his or her own participation in the criminal activity the subject of the charge against the defendant, or granted an immunity from prosecution, he or she may be in a position to claim privilege against self-incrimination in respect of the very matter the prosecution wishes to adduce into evidence.

14.3 Usually any case against an accomplice should be finally disposed of before the accomplice is called to give evidence against other accused persons in respect of the same offence.

14.4 In some circumstances it may be prudent to grant concessions to people who have participated in alleged offences, in order to have their evidence available against others. Such concessions may include:

1. an indemnity against prosecution;
2. an acceptance of a plea of guilty to fewer charges or a lesser charge than might otherwise have been proceeded with, or an agreement to deal with the case or consent to its being dealt with in a summary manner.

14.5 An indemnity may be granted in respect of completed criminal conduct but can never be granted by the Director to cover future conduct.

14.6 Any decision to grant an indemnity or other concession is one for the Director. In determining that question and where the balance lies, account will be taken of the following matters:

1. the significance, credibility and reliability of the accomplice's testimony;
2. the degree of apparent involvement of the accomplice in the criminal activity in question compared with that of the accused against whom the accomplice is a witness;
3. the strength of the prosecution evidence against the defendant without the evidence it is expected the accomplice can give and, if some charge or charges could be established against the defendant without the accomplice's evidence, the extent to which those charges would adequately reflect the defendant's apparent culpability;
4. the extent to which the prosecution's evidence is likely to be strengthened if the accomplice testifies and the significance and reliability of that testimony;
5. the possibility of the prosecution making its case other than by relying on the evidence the accomplice can give (for example, the likelihood of further investigations disclosing sufficient independent evidence to remedy any weakness in the case) or of the evidence being available from other sources;
6. whether or not the evidence that the witness can give is reasonably necessary to secure the conviction of the accused person;
7. whether there is or is likely to be sufficient admissible evidence to substantiate charges against the accomplice, and whether it would be in the public interest that the accomplice be prosecuted but for his or her preparedness to testify for the prosecution;
8. whether, if the accomplice were to be prosecuted and then testify, there is a real basis for believing that his or her personal safety would be at risk;
9. whether the person agrees to be available to testify at any trial and to honestly answer all such questions as may be asked;
10. the character, credit and criminal record of the accomplice.