Accessory after the fact

Question 1

Section 71(1), Crimes Act 1961

Answer 1

(1) Knowing any person to have been a party to the offence
(2) Receives, comforts, assists that person, tampers with or actively suppresses any evidence against him
(3) In order to enable him to escape after arrest or avoid arrest or avoid conviction

Question 2

What is the penalty for accessory after the fact?

Answer 2

7yrs imprisonment - life
5yrs imprisonment - 10+yrs
Half the maximum punishment - any other case

Question 3

Elements of proof

Answer 3

(1) That the person (A) who is received, comforted, assisted by the accessory (B) is a party to an offence committed (PARTY)

(2) That at the time of the receiving, comforting, assisting that person (A), the accessory (B) knows that the person (A) was a party to that offence (KNOWLEDGE - PARTY)

(3) That the accessory (B) received, comforted, assisted that person (A) or tampered with or actively suppressed any evidence against that person (A) (ACT ITSELF)

(4) That at the time of the receiving, comforting, assisting etc, the accessory’s (B) purpose was to enable that person (A) to escape after arrest or to avoid arrest or conviction (PURPOSE OF ACT)

Question 4

Knowing

Answer 4

Knowing or correctly believing

Question 5

R v Crooks (knowledge)

Answer 5

Knowledge means having no real doubt that the person assisted was a party to the offence. Mere suspicion of their involvement is insufficient

Question 6

Knowledge (at time of being accessory)

Answer 6

(1) Offence has been committed, and
(2) The person they are assisting was a party to that offence

If knowledge comes after the assistance, then they are not liable as an accessory

Question 7

R v Briggs (wilful blindness)

Answer 7

Knowledge may be inferred from wilful blindness or a deliberate abstention from making enquiries that would confirm the suspected truth

Question 8

Situations where a person is considered wilfully blind

Answer 8

(1) Person deliberately shuts their eyes and fails to enquire, because they knew what the answer would be
(2) The means of knowledge are easily at hand and the person realises the truth of the matter, but refrains from enquiring in order to not know

Question 9

Actus reus of accessory after the fact

Answer 9

Must do a deliberate intentional act with the purpose of assisting the person to evade justice in one of the three ways (escape, avoid arrest or conviction)

Intentional acts
(1) Receives
(2) Comforts
(3) Assists
(4) Tampers with evidence
(5) Actively suppresses evidence

Question 10

R v Mane (offence must be complete)

Answer 10

The acts of the accessory must be done after the completion of the offence

Question 11

Receives

Answer 11

Harbouring an offender or offering them shelter

Question 12

Comforts

Answer 12

Providing an offender with food and clothing

Question 13

Assisting

Answer 13

Anything which provides assistance to the offender e.g. transport, acting as a look out, deliberately providing false information

Question 14

Tampers with evidence

Answer 14

Alters the evidence against the offender e.g. modifying offender’s phone records

Question 15

Actively suppresses evidence

Answer 15

Acts of concealing or destroying evidence

Question 16

Indirect assistance

Answer 16

There is no requirement that the offender is directly assisted by the accessory (a middle agent may be employed)

Question 17

Intent (mens rea)

Answer 17

(1) Escape after arrest
(2) Avoid arrest
(3) Avoid conviction

Intent must be held by the accessory at the time of performing the act.

Mere knowledge that an act is likely to assist an offender is insufficient

Question 18

Prosecution - Section 137, Criminal Procedure Act 2011

Answer 18

Subsection (2) - Accessory may be proceeded against and convicted, whether or not the principal offender has been proceeded against or convicted

Subsection (3) - Accessory may be proceeded against and convicted alone (as substantive offence) or jointly with the principal or other offender(s)

Question 19

Prosecution - proof of principal offence

Answer 19

Accessory is entitled to insist on proof that the alleged offence was committed and to challenge that proof

Question 20

Prosecution - acquittal

Answer 20

A person can still be convicted as an accessory despite the offender having been acquitted of the offence (situation dependant)