Accessory after the Fact

Question 1

Section and Penalty

Answer 1

CA61; S71(1)

Penalty (S312)
7 years (for life imprisonment offences)
5 years (for offences imprisonable by 10 years+ )
1/2 penalty (of the offence if less than 10 years)

Question 2

Elements

Answer 2

1. Any one who
2. Knowing any person to be a party to an offence
3. Receives, comforts or assists that person;
   OR tampers with;
   OR actively suppresses any evidence against him or her;
4. In order to help him or her to escape after arrest;
   OR to avoid arrest OR conviction.

Question 3

Person

Answer 3

Carries its natural meaning. Gender neutral. Proven by judicial notice or circumstantial evidence.

Question 4

Knowledge - Crooks stole some books

(We know Crooks stole some books from the library. We are an AATF if we receive Crooks etc etc. Crooks loves his books and can’t help himself).

Answer 4

“Knowing” means “knowing, or correctly believing” … a person may believe something wrongly but cannot ‘know’ something that is false.

R v Crooks:
Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.

Question 5

R v Briggs

(Briggs - Blindness - Wilful Blindness)

Answer 5

R v Briggs

As with a receiving charge under s246(1), knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.

Question 6

When would a person be considered wilfully blind?

Answer 6

• Where a 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.

Question 7

What knowledge must an accessory possess?

Answer 7

At the time of the assistance given, he or she must have knowledge that:
• an offence has been committed AND
• the person they are assisting was a party (principal or secondary) to that offence.

Question 8

Party

Legislation

Answer 8

CA61; S66:

(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.

Question 9

Definition of Offence/Crime

Answer 9

CA61; S2

Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories within s6, Criminal Procedures Act 2011.

Question 10

What is the actus reus of being an accessory after the fact?

Answer 10

• Receives
• Comforts
• Assists
• Tampers with evidence
• Actively suppresses evidence

Question 11

R v Mane

(You need to remain and assist those who committed the offence in order to be considered an accessory.

Answer 11

R v Mane

To be considered an accessory the acts done by the person must be after the completion of the offence.

Question 12

Receives, Comforts or Assists

Not interpreted by the Courts in their literal sense so here are some examples

Answer 12

Receives:
Refers to harbouring an offender or offering them shelter can be considered receiving and/or comforting, eg hiding a prison escapee in a basement.

Comforts:
Refers to providing food, clothing, shelter, accommodation, or other supplies to an offender.

Assists:
Refers to 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.

Question 13

R v Gibbs

(acts done must have helped in some way to evade justice)

Answer 13

The act or acts done by the accessory must have helped the other person in some way to evade justice.

Question 14

Tampers with or actively suppresses evidence

Definitions and examples

Answer 14

Tampers with:
Means to alter the evidence against the offender eg, modifying an offender’s phone records to conceal communications that might implicate them.

Actively suppresses evidence:
Encompasses acts of concealing or destroying evidence against an offender eg, bloodied clothing is washed repeatedly to remove evidence or it is set alight to destroy the clothing.

Question 15

R v Levy

(Levy broke the levee in order to wash the evidence away to assist his mate in evading justice)

Answer 15

It was held that Levy had done a deliberate act in relation to the evidence against the offender for the purpose of assisting that offender to evade justice.

Question 16

Attempting to be an accessory

Answer 16

R v DH - DH was charged and convicted with attempting to be an accessory after the fact to murder by assisting others in the unsuccessful attempt to dispose of a weapon used in a fatal robbery.

Question 17

AATF - Indirect assistance

Answer 17

There is no requirement that the offender (person A) is directly assisted by the accessory (person B).

Question 18

AATF - innocent agent

Answer 18

Where an innocent agent is employed by the accessory, the actions of the innocent agent will be held to be the actions of the accessory.

Question 19

An accessory’s intent

Answer 19

The intent must be to enable the offender to:

• escape after arrest
• avoid arrest
• avoid conviction

Question 20

Prosecution

Proof of principal offence

Answer 20

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.

Question 21

Prosecution

Acquittal of offender

Of note only

Answer 21

A person can still be convicted as an accessory after the fact despite the offender having been, or where they may be, acquitted of the offence, unless the accessory’s conviction is inconsistent with the acquittal of the original offender.

Question 22

What is the principal difference between a party to an offence and an accessory after the fact?

Answer 22

Parties are involved in the offence before or during the commission of the offence, whereas accessories are involved after the principal offence has been committed.

Question 23

Under what circumstances can you charge someone as being an AATF when they have received goods dishonestly obtained?

Answer 23

When the receiving of those goods was done with a view to helping the offender and enabling them to evade justice.

Question 24

What definitions and/or case laws should be included in your discussion of the liability of:

Accessory after the fact?

Answer 24

Definition of intent: 2 specific types of intent; R v Collister; an accessory’s intent must be to enable to offender to escape after arrest or to avoid arrest or conviction;

Definition of knowledge: S&B; R v Crooks; R v Briggs; when a person is considered wilfully blind;

Parties to legislation: S66(1)(a-d);

Definition of an offence: Any act or omission that is punishable on conviction under any enactment; R v Mane;

Definition of receives: Refers to harbouring an offender or offering them shelter can be considered receiving and/or comforting;

Definition of comforts: Refers to providing food, clothing, shelter, accommodation, or other supplies to an offender;

Definition of assists: Refers to providing transport etc;

Definition of tampers with: Means to alter the evidence against the offender;

Definition of actively suppresses evidence: R v Levy; Encompasses acts of concealing or destroying evidence against an offender;

Definition of escape after arrest etc: R v Gibbs; R v Levy;