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 enable him or her to escape after arrest

OR to avoid arrest or conviction.

Question 3

Offence must be complete

Answer 3

The offence must be complete in order to be an accessory.

Involvement before or during should be deemed as parties to or conspirator to the offence.

Question 4

Knowledge Definition

Answer 4

Knowing” means “knowing, or correctly believing” … the belief must be a correct one, where the belief is wrong a person cannot know something:

Question 5

R v Crooks

Knowledge

Answer 5

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 6

R v Briggs

Answer 6

R v Briggs

…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 7

What knowledge must an accessory possess Of note only

Answer 7

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 8

Person

Answer 8

Gender neutral. Proven by judicial notice or circumstantial evidence.

Question 9

Spouse/civil union partner exceptions Legislation Of note only

Answer 9

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 10

Party Legislation

Answer 10

S66(1) CA61

1. Everyone is party to and guilty of an offence who:
2. Actually commits the offence;

OR

Does or omits an act for the purpose of aiding any person to commit the offence;

OR

Abets any person in the commission of the offence;

OR

Incites, counsels or procures any person to commit the offence.

Question 11

Definition of Offence/Crime

Answer 11

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 12

R v Mane

Offence must be complete

Answer 12

R v Mane

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

Accessory for murder - death must of taken place when the accessory took place not before he died.

Question 13

Receives, Comforts or Assists Examples

Answer 13

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 14

Tampers with or actively suppresses evidence

Definition and Example

Answer 14

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 15

R v Levy

Actively Supressing

Answer 15

Convicted of being an accessory to counterfiting currancy.

Removed equipment after it had been used by the offender during the process and after the offenders arrest and the recover of moulds used to complete the counterfeiting.

Did a deliberate act re the evidence assisting the offender to evade justice.

Question 16

Prosecution Proof of principal offence

Answer 16

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 17

Prosecution Acquittal of offender

Answer 17

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 18

Liability

Answer 18

1. Knowing any person to be a party to an offence
   - Knowing def
   - Simester and Brookbanks Def (knowledge)
   - R v Crooks

R v Briggs

• Person Def
• Parties Liability
• Offence
• proof of principal offence
  2. Receives, Comforts, or Assists that person
• Recieives/Comforts/assists def

R v Gibbs

OR

Tampers with or actively suppresses any evidence against him or her

• tampers/supresses def
• R v Levy
  3. in order to enable him or her to escape arrest
• R v Mane
• specifiy assisted after arrest

OR

to avoid arrest of conviction.

• what they did to avoid justice.

Question 19

R v Gibbs

Answer 19

together in hiding with a escaped murder. Provided provisions to the escapee