Accessory After The Fact Flashcards
What is accessory after the fact?
Is a person who assists the offender, or destroys or tampers with evidence, in order to help the offender to avoid arrest, or to escape after arrest.
Case law - Accessory after the fact
R v Crooks, R v Briggs, R v Mane, R v Gibbs, R v Levy, R v Mane #2
Accessory after the fact - Legislation
71(1) Crimes Act 1961
Knowing any person to have been 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 section - Accessory after the fact
312 Crimes Act 1961
Everyone is liable to 7 years if maximum is life, 5 for 10years maximum, and half for any other offence.
Elements- Accessory after the fact
- That the person (A) who is received, comforted, or assisted by the accessory (B) is a party (principal or secondary) to an offence that has been committed, AND
- That, at the time of receiving, comforting, or assisting that person (A), the accessory (B) knows that person (A) was a party to that offence, AND,
- That the accessory (B) received, comforted or assisted that person (A) or tampered with or actively suppressed any evidence against that person (A), AND,
- That, at the time of the receiving, comforting or assisting etc, the accessories (B) purpose was to enable that person (A) to escape after arrest or to avoid arrest or conviction.
Any person
Proved by judicial notice and accepted by circumstantial evidence.
Offence
Described as an act or omission that is punishable on conviction under any enactment.
In order for someone to be an accessory, what has to be complete?
An offence
Define, knowing. - Accessory
Knowing or correctly believing.
Caselaw - Knowing a person to be a party - Accessory
R v Crooks
Knowing means actual knowledge or belief in the sense of having no real doubt that the person they were assisting was a party. Mere suspicion is insufficient.
Accessory - At the time the assistance is 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.
If knowledge comes about after assistance, they are not liable.
Accessory - Wilful blindness Case Law
R v Briggs
Knowledge may also be inferred from wilful blindness or deliberately not making inquiries that would confirm the truth.
A person is considered wilfully blind in two circumstances…
- Where the person deliberately shuts their eyes and fails to inquire, knowing 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 refrain from inquiring in order not to know.
Actus Reus of Accessory after the fact.
The accessory must do a deliberate intentional act, one or more,
- receives
- comforts
- assists
- tampers with evidence
- actively suppresses evidence
What is also needed in addition to Actus Reus for accessory?
Actus Reus -
Must have the purpose of assisting the person to evade justice in one of three ways - avoid arrest, escape after arrest, or avoid conviction, AND,
Must also possess the knowledge.
Accessory - Offence must be complete, Caselaw
R v Mane
To be considered an accessory, the act to assist must be done after the completion of the offence.
Accessory - Receiving or comforting
Harboring an offender or offering them shelter can be considered receiving and/or comforting.
Eg. Hiding the person inside.
Comforting also encompasses providing food and clothing.
Accessory - Assisting
Covers a significant number of situations.
Providing transport, acting as a lookout, providing false info to authorities as to their whereabouts, giving advice or materials, and services.
To evade justice - Accessory Caselaw
R v Gibbs
The act or acts done by the accessory must have helped the other person in some way to evade justice.
Accessory - Tampers with or actively suppresses evidence.
Show a requirement for some form of active conduct in respect of the evidence.
Tampers - To alter the evidence.
Actively suppresses - Acts of concealing or destroying evidence.
Silence and non-disclosure - no liability.
Accessory - Actively suppress evidence Caselaw
R v Levy
Levy removed equipment used in counterfeit money by offender.
Levy had done a deliberate act in relation to the evidence against the offender for the purpose of assisting the offender to evade justice. (Concealing or destroy)
Accessory - Actively suppressing evidence.
Is it necessary to prove the destroyed evidence would, in fact, have been evidence if not destroyed?
No, appropriate test is whether it could have been evidence.
Accessory - Is it possible to be convicted of attempted accessory after the fact?
Yes
Accessory - Is there a requirement that the offender is directly assisted by the accessory?
No. Person B can assist person C, person C can then assist person A, who is actually committing the offence.
Accessory - Innocent agents
Is someone who is unaware of the significance of their actions. Cannot be charged as an accessory. They are simply the mechanism.
Their actions, however, when employed by the accessory, will be held to be the actions of the accessory.
An accessories intent.
The intent of the accessory, when doing the act to assist, must be one of three that enables the offender to:
Escape after arrest, avoid arrest, or avoid conviction.
Mere knowledge that the act is likely to assist is insufficient in itself.
Proceedings against parties, accessories, and receivers.
137 Criminal Proceedings Act 2011
137 Criminal Proceedings Act 2011
(1) This applies to everyone charged
(a) as a party, or
(b) as an accessory, or
(c) as a receiver
(2) If subsection (1) applies, may be proceeded against and convicted whether or not the principal offender has been proceeded against or convicted.
(3) If subsection (1) applies, may be proceeded against and convicted,
(a) alone, or
(b) jointly with the principal or other offender.
(4) If any other receivers are identified, they can be charged at any time.
Proof of principal offence - Accessory Case Law
R v Mane #2
Accessory after the fact is entitled to insist on proof that the alleged offence was committed and to challenge that.
Can a person be convicted of accessory after the fact despite the offender being acquitted?
Yes, unless it is inconsistent with the acquitted of the original offender.
