Accessory after the Fact

Question 1

Section and Penalty *

Answer 1

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)

Question 2

Elements *

Answer 2

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.

Question 3

What knowledge must an accessory possess *

Answer 3

At the time of the assistance given, must have knowledge that:

1. An offence has been committed, and
2. The person they are assisting was a party (principal or secondary) to that offence.

Question 4

Spouse/civil union partner exceptions

Legislation *

Answer 4

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.

Question 5

Party

Legislation

Answer 5

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.

Question 6

Definition of Offence/Crime

Answer 6

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.

Question 7

Tampers with or actively suppresses evidence

Definition and Example

Answer 7

Tampers means to alter the evidence against the offender. Eg 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.
Eg Bloodied clothing is washed repeatedly to remove evidence or it is set alight to destroy the clothing.

Question 8

Prosecution

Proof of principal offence

Of note only

Answer 8

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.

Question 9

Actus reus of an accessory after the fact

Answer 9

The accessory must do a deliberate intentional act, with the purpose of assisting the person to evade justice in one of the three ways in s71(1) – escape after arrest, avoid arrest, or avoid conviction. They must also posses the knowledge,

Question 10

Accessory after the fact 5 intentional acts (Actus reus).

Answer 10

1. Receives
2. Comforts
3. Assists
4. Tampers with evidence
5. Actively suppresses evidence