Accessory after the fact Flashcards
What needs to be proved for Accessory after the fact
The elements of the offence of accessory after the fact are:
• That the person (person A), who is received, comforted or assisted by the accessory (person B) is a party (principal or secondary party) to an offence that has been committed.
• That, at the time of receiving, comforting or assisting that person (person A), the accessory (person B) knows that person (person A) was a party to the offence.
• That the accessory (person B) received, comforted or assisted that person (person A) or tampered with or actively suppressed any evidence against that person (person A).
• That, at the time of the receiving, comforting or assisting etc, the accessory’s (person B) purpose was to enable that person (person A) to escape after arrest or to avoid arrest or conviction.
Knowledge must exist at the time assistance given for accessory after the fact
At the time of the assistance being given, an accessory must possess the knowledge that:
• an offence has been committed, and
• the person they are assisting was a party (principal or secondary) to that offence
Where this knowledge comes about after the assistance has been given they are not liable as an accessory
When is a person considered to be Wilfully blind
A person is considered wilfully blind in only two situations, these being:
• where the person deliberately shuts their eyes and fails to inquire; this is because they knew what the answer would be, or
• in situations where the means of knowledge are easily at hand and the person realises the likely truth of the matter but refrains from inquiring in order not to know.
Actus reus of an accessory after the fact
The accessory must do a deliberate intentional act (one of the five mentioned below), with the purpose of assisting the person to evade justice in one of the three ways in s71(1) – escape after arrest, avoid arrest, or avoid conviction. They must also posses the knowledge, as discussed above. The intentional acts are: • receives • comforts • assists • tampers with evidence • actively suppresses evidence
Receiving or comforting meaning
Harbouring an offender or offering them shelter can be considered receiving and/or comforting, eg hiding a prison escapee in a basement.
Comforting encompasses situations where an accessory provides an offender with things such as food and clothing.
Assisting meaning
To assist covers a significant number of situations: providing transport, acting as a look out, identifying someone willing to purchase stolen property as a receiver and deliberately providing authorities with false information as to an offender’s whereabouts. Giving advice, information, material or services to the offender is also captured.
Tampers with or actively suppresses evidence meaning
These two elements (acts) are more explicit in that they show a requirement for some form of active conduct in respect of the evidence, ie the deliberate concealing of evidence or providing false information to police in respect of it are covered by the section, whereas silence or non-disclosure such as failing to report an offence to the authorities will not attract liability.
Tampers means to alter the evidence against the offender.
Actively suppressing evidence encompasses acts of concealing or destroying evidence against an offender.
Can you indirectly provide assistance and be an accessory after the fact?
There is no requirement that the offender (person A) is directly assisted by the accessory (person B).
Example:
Person A commits an offence and is assisted directly by another accessory (person C). Person B assists person C directly, but does not directly assist person A. Despite this distance, person B is still an accessory after the fact to person A.
Intent required for accessory after the fact
The intent held by the accessory when performing the act that assists the offender must be one of the three contained within the statute; to enable the offender to:
• escape after arrest
• avoid arrest
• avoid conviction.
Mere knowledge that an act is likely to assist an offender is insufficient in itself.
Proof of the principal offence being committed
In R v Mane32 the Court agreed found that that an accessory after the fact is entitled to insist on proof that the alleged offence was committed and to challenge that proof.
This rule also applies to situations where the offender has pleaded guilty to the principal offence. Despite such a plea and/or a conviction having been entered, the principal offence committed must still be proved where required.
