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Prosecution Guidelines

Chapter 11. Indemnities, undertakings, informers and induced statements

This Chapter sets out why it can be in the public interest to grant benefits to a person who has committed a criminal offence and the principles involved in granting such a benefit.

Published 29 March 2021

11.1 Introduction

The purpose of this Chapter is to set out:

  1. the principles for calling an informer witness to give evidence
  2. the process for tendering an affidavit of assistance
  3. the factors to be considered when determining whether or not the DPP should recommend an indemnity or undertaking
  4. the requirements for obtaining approval to take an induced statement.

11.2 Benefits

As a general rule, those who commit serious criminal offences should be held accountable. However, in some cases it may be in the public interest to grant some kind of benefit to a person who has committed a criminal offence in return for that person providing evidence against another. Such benefits may include:

  • an indemnity from prosecution for specified criminal offences or conduct
  • an undertaking not to use that person’s evidence in criminal proceedings against them
  • a reduction in sentence based on the nature and extent of co-operation with the authorities.

11.3 Informer witnesses

An informer witness is any person (other than a victim who has suffered direct harm in the case)

  1. can provide information obtained through direct personal contact with the accused and/or other evidence relevant to the matter, and
  2. is either a co-offender; civilian undercover operative; or other person seeking some benefit in exchange for providing this information.

A prison informer witness is a prisoner or former prisoner who provides an account of an admission made by another inmate while in custody.

If it is contemplated that an informer be called as a witness, approval should be sought from the Solicitors Executive or the Crown Prosecutor who has been briefed in the matter. 

The desirability of calling an informer to give evidence must be carefully considered. Any relevant entry on the ODPP Index of Informers must be considered before approval to call an informer is given. Independent evidence that supports the account given by the informer or otherwise establishes the accused’s guilt should be identified. Particular care should be taken when considering calling a prison informer. Independent evidence that an admission was made will generally be required in these cases.

In the case of a prison informer the approval of the Director or a Deputy Director must first be obtained.

Where an informer is to be called as a witness, the prosecutor should, subject to legal professional privilege and public interest immunity, disclose all matters that would assist in evaluating the informer’s evidence, including:

  1. any criminal history
  2. whether or not police or Corrective Services have any information that might assist in
  3. evaluating the informer’s credibility, particularly in relation to:
    a.   motivation for giving evidence
    b.   any history of animosity towards the accused
    c.   favourable / different treatment by Corrective Services compared to other prisoners
    d.   reliability and mental health
    e.   the extent to which public officers have given evidence or written reports on behalf of the informer (for example, to courts or the NSW State Parole Authority)
    f.    whether any discount on sentence has been given for assistance in the matter
    g.   whether the informer was in custody at the time of giving assistance
    h.   whether an immunity has been granted or requested
    i.    whether any monetary or other benefit of any kind has been claimed, offered or provided
    j.    whether the informer gave evidence or was to give evidence in any other current or earlier criminal proceedings.

An informer who has provided or will provide assistance to the authorities may be entitled to a reduction in sentence. Co-operation by offenders with law enforcement agencies should be appropriately acknowledged and, if necessary, tested at the time of sentencing.

Police may provide evidence of an informer's assistance to the sentencing court by way of an affidavit of assistance, annexing a report endorsed by a supervising officer. The prosecutor must read the affidavit of assistance and report before tendering them. A prosecutor should ask to see a copy of the affidavit of assistance before the sentence date so the contents can be properly considered.

11.4 Immunities

There are two types of immunities: indemnities and undertakings. An indemnity protects the informer from prosecution in exchange for the informer promising to give evidence against an accused. An undertaking only provides that the evidence given by the informer in court cannot be used against them in criminal proceedings. An immunity is usually conditional on the informer giving truthful evidence against others in criminal proceedings, so may be revoked if they fail to do so.

Only the Attorney General can grant an immunity. Pursuant to the Interagency Protocol for Indemnities and Undertakings it is the Director’s role to make recommendations to the Attorney General on whether or not to do so. This includes where other agencies of government wish to apply for an immunity for an informer.

Applications for immunities must be dealt with in a timely manner and must be accompanied by a copy of the informer’s statement and a summary of the evidence.

Criteria to be considered in determining whether to recommend an immunity

An immunity will only be recommended by the Director if it would be in the interests of justice for it to be granted. The most important considerations are:

  1. whether the informer’s evidence is reasonably necessary to secure the accused’s conviction
  2. the informer’s degree of culpability compared to that of the accused.

Applications for immunities should address the following factors:

  1. the informer’s present circumstances and attitude to giving evidence without the benefit of an immunity
  2. the value of the informer’s evidence in proceedings against the accused, having regard to all the admissible evidence and any anticipated defence
  3. the relative seriousness of the offences committed by the informer compared to those committed by the accused and their relative levels of involvement
  4. the strength of the evidence to support charges against the informer and the public interest in prosecuting the informer
  5. the strength of the evidence to support the prosecution of the accused on lesser or fewer charges without the informer’s evidence, and whether such charges would properly reflect the accused's criminality
  6. the likelihood of strengthening any weakness in the prosecution case other than by relying on the informer’s evidence (for example, by further investigation)
  7. the informer’s character, credibility and reliability
  8. the outcome of any previous reliance on the informer’s evidence
  9. whether the informer’s evidence is corroborated by other evidence
  10.  whether the informer has provided a full and frank statement, including an acknowledgment of their role in the offences
  11.  whether any form of reward, inducement, protection or privilege is being provided or offered to the informer to cause them to give evidence, other than the indication that an application will be made for an undertaking / indemnity
  12.  whether the officer-in-charge and any other relevant State or Commonwealth investigatory or prosecuting authority support the application 
  13.  whether it would be more appropriate for the court to issue a certificate under s128 of the Evidence Act 1995
  14.  any other relevant matters.

The appropriateness of the kind of immunity (whether an indemnity or an undertaking) should be addressed as part of the application.

11.5 Induced statements

An induced statement is a statement taken from a witness with a promise not to use the information in the statement against that witness in criminal proceedings.

Where the anticipated evidence relates to a matter being prosecuted by the ODPP, approval to take an induced statement from the accused, a witness or a potential witness must first be obtained from the Director. All requests for the Director’s approval to take an induced statement must be made in writing and supported by copies of all available relevant documents. Prior to the DPP taking over proceedings, Police Area Commanders and Police District Commanders (as the case may be) or police officers of equivalent rank (Superintendent and above) who are in line command of the officer making the application are authorised to approve the taking of an induced statement.

It must be made clear by the police officer taking the statement that the only inducement being offered by the Director is that the contents of the statement will not be used against the witness. No other benefit, such as the acceptance of a charge resolution or the withdrawal of charges, forms part of the inducement. The inducement to be recorded at the beginning of the statement should be in the following terms:

"I am making this statement after a promise held out to me by ... that no information given in it will be used in any criminal proceedings against me in any court in New South Wales, except in respect of the falsity of my statement or for the purpose of establishing the falsity of evidence given by me as a witness".

All correspondence relating to a request to take an induced statement is to be treated by the ODPP as sensitive and securely stored.

This Guideline does not apply to police or other investigators carrying out investigations solely pursuant to Australian Crime Commission, NSW Crime Commission, Independent Commission Against Corruption, or Law Enforcement Conduct Commission references.