Accessory after the fact

Question 1

Give a general description of: ‘an accessory after the fact’.

Answer 1

An accessory after the fact is someone who assists the offender, or destroys or tampers with evidence, in order to help the offender to avoid arrest, or to escape after arrest.

Question 2

What are the ingredients of accessory after the fact?

Answer 2

• That the person (person A), who is received, comforted or assisted by the accessory (person B) is a party (principal or secondary) to an offence that has been committed.
• That, at the time of receiving, comforting or assisting that person A, the person B knew that person A was a party to an offence.
• The accessory received, comforted or assisted that person or tampered with or actively suppressed any evidence against that person.
• That, at the time of the receiving, comforting or assisting etc, the accessory’s purpose was to enable that person to escape after arrest or to avoid arrest or conviction.

Question 3

What are the limitations in regard to spouse/civil union partner?

Answer 3

You cannot be charged with being an accessory after the fact to your spouse (legally married/civil union), or your spouse and another party.
This defence does not extend to when a person assists a party to an offence, but no their spouse as well.

Question 4

Can you be an accessory after the fact to an offence that is not complete?

Answer 4

No, the offence must be complete. If the offence is not completed the subject is possibly being party to some offending or a conspirator.

Question 5

R v Crooks (1981) - MUST KNOW

Answer 5

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 6

When must the knowledge exist?

Answer 6

At the time of assistance being given, an accessory must posses the knowledge that:

• An offence has been committed, AND
• The person they are assisting was a party to that offence.

In the situation when knowledge of the offence comes about AFTER the assistance, the assister is not liable as an accessory.

Question 7

R v Briggs (2009) - MUST KNOW

Answer 7

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 8

Describe when someone has been ‘wilfully blind’ in regards to R v Briggs:

Answer 8

The concept of wilful blindness (intentional ignorance) should not simply be invoked because the person should have inquired into the facts, even in circumstances where the person was suspected of having involvement in an offence. To do so would create a scenario where knowledge and recklessness are indistinguishable.

A person is considered ‘wilfully blind’ in only two situations:

• 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.

Question 9

Describe the actus reus in regards to being an accessory:

Answer 9

The accessory must do a deliberate intentional act (one of the five to be mentioned), with the purpose of assisting the person evade justice by:

• escape after arrest
• avoid arrest
• avoid conviction.

The five deliberate acts include:

• receives
• comforts
• assists
• tampers with evidence
• actively suppresses evidence

There is no requirement all five ingredients were satisfied, only one will do.

Question 10

R v Mane (1989) - MUST KNOW

Answer 10

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

Ie - someone shot, then the accessory assists in getting rid of evidence BEFORE the person dies. Cannot be charged with being an accessory after the fact to murder.

Question 11

Define the five deliberate acts: receives, comforts, assists, tampers with evidence, and actively suppresses evidence.

Answer 11

receives: Harbouring an offender or offering them shelter can be considered receiving and/or comforting. ie hiding an escaped prisoner in the basement.
comforting: This is where the accessory provides an offender with things such as food and clothing.

Assisting: To assist covers a significant number of situations: ie providing transport, acting as a look-out, identifying someone willing to purchase stolen property, deliberately providing authorities with false information. Giving advice, information, material or services to the offender is also captured.

Tampers with and actively suppresses evidence are more explicit and they show a requirement for some form of active conduct in respect to the evidence. Silence or non-disclosure would not attract liability.

Tampers with: Tampers means to alter the evidence against the offender.

Actively suppresses evidence: Actively suppressing evidence encompasses acts of concealing or destroying evidence against an offender. ie bloodied clothing being washed to remove evidence or burned to destroy clothing.

Question 12

Reddy v R (2011)

Answer 12

It is not necessary that the item destroyed ‘was’ infact evidence of offending. Just that it ‘could be’ evidence is enough.

Question 13

is it possible for a charge of attempting to be an accessory after the fact

Answer 13

Yes, this would require that all ingredients of an attempt have been completed but the actual ‘being an accessory’ offence was not finished. ie they were stopped in the process of destroying evidence.

Question 14

Define indirect assistance in regards to being an accessory after the fact

Answer 14

Indirect assistance is a third person helping the accessory in the goal helping the offender.

Question 15

Define how an innocent agent can be included in being an accessory after the fact

Answer 15

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 16

Describe the necessary intent required for an accessory to be convicted

Answer 16

The intent of the accessory must be 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.

Question 17

Describe how the prosecution would prove intent

Answer 17

Intent can be proved in four ways:

• Defendant’s admissions
• Actions/words before, during and after the offence
• surrounding circumstances
• the nature of the act itself

Question 18

Discuss how the result of the case against the principal offence relates to the conviction against a defendant charged with being an accessory.

Answer 18

Proof of the principal offence is required to support a charge against someone charged with being an accessory.

However if the defendant is acquitted from the charge of the principal offence, this does not mean the charge against the accessory is withdrawn. As long as the conviction against the accessory is not inconsistent with the acquittal of the principal offender.