Witness Immunity in the Gosford District Court

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Like father, like son is certainly not something that could be said about the Macris Family in relation to serious drug charges when they appeared in the Gosford District Court earlier this May.

In 2011, the son, Alex Macris did something many people would find unimaginable – he used his own father as an unwitting drug-carrier.

Police arrested a 75-year-old Stelios Macris after finding the phenomenal amount of 50 kilograms of meth oil, which can be used to make ice, in the boot of his car and his central coast property in 2011.

Alex knew his father was heading down to one of his properties on the central coast and asked his father to carry the meth oil. Stelios thought that the jerry cans contained petrol.

Alex later admitted that he did it because he didn’t think that police would ever pull over his dad.

Stelios Macris had never previously been connected in any way with the drug trade, nor known to the police, despite the fact that his sons had experienced run-ins with the law and scandals attached to their names. But when police did pull over his father, they made a subsequent search of one of Stelios’ properties and arrested him.

Surprisingly, even though admitting that the drugs were his, Alex Macris will not face prosecution – he was granted immunity from prosecution if he agreed to testify. This meant that when appearing before the Gosford District Court nothing he said in court could not be used to incriminate himself.

The issues that emerged in this sunny central coast court raise some interesting questions. In cases like this Macris case, where criminals who admit to very serious crimes walk free, the question of immunity from prosecution is a valid one.

So why do we have this rule in the first place? The simple answer may be pragmatism – that the information is so important in the case that it outweighs the undesirability of the guilty person going unpunished.

This logic may be more easily accepted if the immunity is given for something smaller

However, without immunity, would it have been fair if Stelios Macris had been convicted? It is better if trials are conducted without the need for immunities but sometimes it may be in the public interest.

The Attorney General can grant an immunity, or indemnity as it is known in the legislation from prosecution in respect of a particular offence, act or omission. After this is granted, the person granted immunity cannot be prosecuted in respect of the offence, act or omission.

According to the Prosecution Guidelines, immunities can be requested by the Prosecutor, and are only to be granted (by the Governor General) when it is in the interests of justice to do so.

The factors that will be considered include:

  • the evidence of the witness is reasonably necessary to secure a conviction
  • whether the evidence is available from other sources
  • the relative degrees of culpability of the witness and the accused person

Under Commonwealth legislation, there is what is called a “use” or “derivative use” indemnity, which provides only a limited amount of immunity: any evidence directly derived from the testimony cannot be used against that person (except in respect of truthfulness of the evidence given).

But a “use” indemnity does not prevent a witness from later being prosecuted (on the basis of other evidence).

Obviously this does not prevent a witness (or accused) from self-incrimination where there was previously no suspicion attaching to the person granted this limited form of immunity, and it is possible that evidence from other sources may be enough to convict.

In these cases it is only the evidence that they themselves give in court that cannot be used. But cases prosecuted under this legislation rarely, if ever, take place.

Immunity is generally seen as, while never desirable, the lesser of two evils.

Although Alex had never meant to incriminate his father, would he have been so quick to admit the charges without a grant of immunity? If he did not, and his father was found guilty, an innocent man would have been greatly wronged.

In the case of the Macris family, a guilty person and an innocent one going free is a better scenario than the alternative of a guilty person going free while the innocent one suffered.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.