Accessory after the Fact

Question 1

Section and Penalty

Answer 1

S71(1) CA61

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 enable 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:

Question 4

R v Crooks

Answer 4

R v Crooks. Knowledge

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 5

R v Briggs

Answer 5

R v Briggs. Wilful Blindness

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.

Question 6

What knowledge must an accessory possess

Answer 6

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 7

Person

Answer 7

Gender neutral. Proven by judicial notice or circumstantial evidence.

Question 8

Spouse/civil union partner exceptions
S71(2) CA61
legislation

Answer 8

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 9

Party
S66(1) CA61
Legislation

Answer 9

(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 10

Definition of Offence/Crime

Answer 10

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 11

R v Mane

Answer 11

R v Mane

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

Question 12

Receives, Comforts or Assists Examples

Answer 12

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 13

Tampers with or actively suppresses evidence

Definition and Example

Answer 13

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.

Question 14

Indirect Assistance

Answer 14

There is no requirement that the offender (person A) is directly assisted by the accessory (person B).
Example:
Person A commits an offence and is assisted directly by another accessory (person C). Person B assists person C directly, but does not directly assist person A. Despite this distance, person B is still an accessory after the fact to person A.

Question 15

Innocent Agent

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

What needs to be proved

Answer 16

• That the person (person A), who is received, comforted or assisted by the accessory (person B) is a party (principal or secondary party) to an offence that has been committed.
• That, at the time of receiving, comforting or assisting that person (person A), the accessory (person B) knows that person (person A) was a party to the offence.
• That the accessory (person B) received, comforted or assisted that person (person A) or tampered with or actively suppressed any evidence against that person (person A).

• That, at the time of the receiving, comforting or assisting etc, the
accessory’s (person B) purpose was to enable that person (person A) to escape after arrest or to avoid arrest or conviction.

Question 17

Prosecution

Charging a Accessory without a party to the offence being charged

Answer 17

As per s137, a charging document may be laid whether or not any party to the principal crimes is charged, convicted or otherwise amenable to justice. An accessory may be charged alone or jointly along with any party to the principal crime.

Question 18

Prosecution

Proof of principal offence

Answer 18

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 19

Prosecution

Acquittal of offender

Answer 19

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 20

What is the principal difference between a party and an accessory

Answer 20

That parties are involved in the offence before or during the commission of the offence, whereas accessories are involved after the principal offence has been committed.

Question 21

Circumstances where you can charge a receiver of dishonestly obtained goods with being an accessory

Answer 21

Where the receiving of those goods was done with a view to helping the offender and enabling them to evade justice.