Accessory after the Fact Flashcards
Section and Penalty
S71(1) CA61
Penalty (S312)
7 years (for life imprisonment offences)
5 years (for offences imprisonable by 10years+ )
1/2 penalty (of the offence if less than 10 years)
Elements
1) Knowing any person to be a party to an offence
2) Receives, comforts or assists that person
OR
Tampers with or actively suppresses any evidence against him or her
3) In order to help him or her to escape after arrest
OR
to avoid arrest or conviction.
Knowledge
Definition
Knowing” means “knowing, or correctly believing” … the belief must be a correct one, where the belief is wrong a person cannot know something:
R v Crooks
Knowledge
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.
R v Briggs
Wilful Blindness
And when is a person considered wilfully blind
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.
A person is considered wilfully blind in only two situations, these being:
• where the 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.
What knowledge must an accessory possess
Of note only
At the time of the assistance given, must have knowledge that:
• an offence has been committed, and
• the person they are assisting was a party (principal or secondary) to that offence.
Person
Gender neutral. Proven by judicial notice or circumstantial evidence.
Spouse/civil union partner exceptions
Legislation
Of note only
S71(2) CA61
You cannot be charged with being an accessory after the fact to your spouse (legally married), or your spouse and another party (this when they work in concert). This same limitation applies to those in a civil union, but does not extend to encompass those in de facto relationships or other family relationships.
This defence does not extend to cases where the person helps another party but does not assist their spouse or civil union partner as well.
Party
Legislation
S66(1) CA61
(1)Everyone is 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.
Definition of Offence/Crime
S2 CA61
Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories within s6, Criminal Procedures Act 2011.
R v Mane
Offence must be complete
R v Mane
To be considered an accessory the acts done by the person must be after the completion of the offence.
Receives, Comforts or Assists Examples
Receives
Harbouring an offender or offering them shelter can be considered receiving and/or comforting, eg hiding a prison escapee in a basement.
Comforts
Comforting encompasses situations where an accessory provides an offender with things such as food and clothing.
Assists
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.
Tampers with or actively suppresses evidence
Definition and Example
Tampers means to alter the evidence against the offender.
Example:
Modifying an offender’s telephone records to conceal communications that might implicate them.
Actively suppressing evidence encompasses acts of concealing or destroying evidence against an offender.
Example:
Bloodied clothing is washed repeatedly to remove evidence or it is set alight to destroy the clothing.
Prosecution
Proof of principal offence
Of note only
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.
Prosecution
Acquittal of offender
Of note only
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.
