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

Knowledge

Definition

Answer 3

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 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 4

What knowledge must an accessory possess

Of note only

Answer 4

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.

Question 5

Person

Answer 5

Gender neutral. Proven by judicial notice or circumstantial evidence.

Question 6

Spouse/civil union partner exceptions

Legislation

Of note only

Answer 6

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 7

Party

Legislation

Answer 7

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 8

Definition of Offence/Crime

Answer 8

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 9

Receives, Comforts or Assists Examples

Answer 9

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.

Question 10

Tampers with or actively suppresses evidence

Definition and Example

Answer 10

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.

Proof it would have been evidence not required. ‘Could be’ is enough.

Question 11

Prosecution

Proof of principal offence

Of note only

Answer 11

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 12

Prosecution

Acquittal of offender

Of note only

Answer 12

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.

Question 13

What needs to be proved

Answer 13

• That the person who is received, comforted or assisted by the accessory is a party to an offence that has been committed.
• That, at the time of receiving, comforting or assisting that person, the accessory knows that person was a party to the offence.
• That 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 14

Wilful Blindness

Answer 14

More than suspicion, not simply failure to enquire.

1. where the person deliberately shuts their eyes and fails to inquire; this is because they knew what the answer would be
2. 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

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.

Question 15

Actus Reus of AATF

Answer 15

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

Receive
Comfort
Assist
Tamper with evidence
Actively suppress evidence

Question 16

Offence must be complete

Answer 16

R v Mane

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

Question 17

Definition of receives, comforts or assists

Answer 17

Receives, comforts and assists are traditional common law terms and in general are not interpreted by the Courts in their literal sense, but are regarded as expressing a general view that the accessory assisted the offender(s) to evade justice, by one means or another

Question 18

Is it possible to attempt to be an accessory?

Answer 18

Yes. Unsuccessful attempt to dispose of weapon, R v DH.

Question 19

Examples of indirect assistance

Answer 19

‘A’ commits offence. ‘B’ assists directly. ‘C’ assists ‘B’. ‘C’ is still an accessory.

‘C’ drives ‘B’ to a lake so he can throw ‘A’s’ murder weapon into the water.

Question 20

Innocent agents

Answer 20

Actions of an innocent agent will be held to be the actions of the accessory.

Question 21

Charging an accessory

Answer 21

Can be charged whether or not principal party is charged, convicted, or otherwise amenable to justice.

Can be charged alone or jointly with any party to principal offence.

Question 22

Proof of the principal offence

Answer 22

AATF is entitled to insist on proof that the offence was committed, and to challenge that proof.

Including if principal offender has pleaded guilty.

Question 23

Acquitted principal offenders

Answer 23

AATF can still be convicted, unless conviction inconsistent with acquittal of original offender.

Eg inadmissible confession causes acquittal, but is admissible against AATF.