Accessory After the Fact Flashcards
S 71, Crimes Act 1961
(1) An accessory after the fact is one who, knowing any person to have been a party to the offence, RECEIVES, COMFORTS or ASSISTS that person, or TAMPERS with or ACTIVELY SUPPRESSES any evidence against him, in order to enable him to ESCAPE AFTER ARREST, or to AVOID ARREST or CONVICTION.
Penalty
S 312, Crimes Act 1961
Maximum punishment for offence is life = 7 years.
Maximum punishment is 10 years or more = 5 years
Any other punishment = no more than half
Elements (4)
- Person A is a party to an offence that has been committed.
- At the time of receiving, comforting or assisting Person A, Person B knows that Person A was a party to that offence.
- Person B received, comforted or assisted Person A or tampered with or actively suppressed any evidence against Person A.
- At the time of receiving, comforting or assisting etc, Person B’s purpose was to enable Person A to escape after arrest or to avoid arrest or conviction.
Any person
Spouse/civil union partner exceptions
Any person carries its natural meaning.
Limitations around spouses still apply to offences committed prior to the Crimes Amendment Act 2019.
Offence
Offence and crime are interchangeable. No material difference.
Any act or omission that is punishable on conviction under any enactment and are demarcated into four categories within S 6, Criminal Procedures Act 2011.
Offence must be complete in order to be an accessory.
Knowing any person to have been party to an offence
R v Crooks - “Knowledge means…”
Simester & Brookbanks: “Knowing or correctly believing.” “The belief must be a correct one. Where the belief is wrong a person cannot know something.”
“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.”
What knowledge must exist when assistance is given?
An offence has been committed
AND
The person they are assisting was a party (principal or secondary) to that offence.
R v Briggs
Wilful Blindness - two sitiuations
“As with a receiving charge under S 246(1), knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.”
- Where the person deliberately shuts their eyes and fails to inquire; this is because they knew what the answer would be.
- 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
Accessory must do a DELIBERATE INTENTIONAL act…
- receive (harbouring, offering shelter)
- comfort (providing food, clothing)
- assist (transport, lookout, lying to Police)
- tamper with evidence (alter)
- actively suppress evidence (concealing or destroying)
with the purpose of assisting the person to evade justice…
- escape after arrest
- avoid arrest
- avoid conviction
R v Mane
An accessory is entitled to… (prosecution)
“To be considered an accessory, the acts done by the person must be after the completion of the offence.”
Mane gave assistance after the offender shot the victim, but before the victim died. Not accessory to murder.
An accessory is entitled to insist on proof that the alleged offence was committed and to challenge that proof. Also applies where the offender has pleaded guilty. Must still prove the offence was committed.
R v Gibbs - “to evade justice”
R v Levy - “actively suppressing”
Gibbs and an escapee were together at a hiding place before Gibbs left to uplift supplies, before returning with them for joint use. The court ruled that the escapee was being helped by Gibbs due to Gibbs supplying provisions. Acts done by the accessory must help the other person to evade justice.
Levy removed equipment after it was used by the offender in the counterfeiting process and after the offender’s arrest and the recovery of the moulds used. Levy had done a deliberate act in relation to the EVIDENCE against the offender for the purpose of assisting the offender to evade justice.
Attempting to be an accessory?
Indirect Assistance
Innocent Agents
Possible to be convicted of attempting to be an accessory. R v DH - unsuccessful attempt to dispose of firearm.
No requirement that Person A is directly assisted by Person B. Person B could assist Person C, who assists Person A. Person B is still an accessory.
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.
An accessory’s intent when performing the act must be…(3)
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.
Prosecution
Offender not charged/convicted?
Jointly or separately?
Offender acquitted?
Can be charged and convicted when the offender IS NOT charged and/or convicted.
Can be proceeded against alone or jointly with the principal.
Can be convicted as an accessory even if the offender is acquitted, unless the accessory’s conviction is inconsistent with that acquittal. Reliant on state of evidence and analysis to determine whether differing verdicts are warranted by differing evidence (inadmissible confessions).
