A trial judge is required as a matter of law to give an accomplice warning where there is evidence on which a reasonable jury could find the witness was a participant in the crime charged, even where defence counsel has not sought and has expressly disavowed such a warning. The question whether a witness is an accomplice is for the jury, who must be affirmatively satisfied on the balance of probabilities. Where the warning is not given, the proviso cannot be applied unless there was substantial evidence apart from the accomplice's evidence upon which the jury could properly have convicted.
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