The Prosecution Policy of the Commonwealth is a public document which sets out guidelines for the making of decisions in the prosecution process, including the very important decision as to whether or not a person should be prosecuted.
Pursuant to the DPP Act the Commonwealth Director of Public Prosecutions (the DPP), and only the DPP, is empowered to give an accomplice an undertaking not to prosecute in order to secure that person’s testimony for the prosecution. This is commonly referred to as an indemnity or an immunity from prosecution.
The Commissioner of Taxation does not have any authority or power to grant a person an indemnity/immunity from prosecution.
The Prosecution Policy of the Commonwealth sets out the factors the DPP must consider when deciding whether to grant a person an indemnity/immunity.
Where a taxpayer makes a voluntary disclosure to the authorities and that disclosure indicates that criminal offences have been committed by the taxpayer, and where:
the case does not exhibit a significant degree of criminality on the part of the taxpayer, with some of the indicators of such criminality including:
offences committed over a long period of time
offences involving a degree of sophistication, such as the creation of false documents or sham arrangements
offences which resulted in the unlawful obtaining of a substantial sum of money, and
the taxpayer’s criminal conduct not ceasing voluntarily.
the taxpayer provides information about how the arrangements relating to the commission of the criminal offences operated, including the role and identity of the promoter, such as, for example by:
making full and frank disclosure to the authorities, or
providing to the authorities original documents and materials, where these are available, which were used in the commission of the offences.
and
the taxpayer co-operates with the investigation and consequential proceedings, such as, for example by:
making a formal written witness statement to the authorities setting out how the offences were committed and the role and identity of the promoter, or
giving full and frank evidence for the Crown in any proceedings, including confiscation proceedings, relating to any offence that the Crown may nominate in respect of the promoter.
The Commonwealth Director of Public Prosecutions has indicated that he will give favourable consideration to the granting of an indemnity/immunity from criminal prosecution in relation to the taxpayer’s involvement in the scheme.
In cases where the DPP decides to prosecute a taxpayer instead of granting an indemnity/immunity, it is important for taxpayers to note that Commonwealth legislation requires a sentencing court to take into account the degree to which a person has co-operated with law enforcement agencies.
In addition, section 21E of the Crimes Act enables a sentencing court to give a ‘sentencing discount’ to a person on the basis that the person has undertaken to co-operate with authorities in proceedings against others. In such cases the sentencing court must specify the sentence that would have been imposed but for the person’s undertaking to cooperate, thereby quantifying the sentencing discount which is given.
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