Accessory after the Fact

Question 1

Accessory after the Fact

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

Accessory after the Fact

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:

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

Receives, Comforts or Assists Examples

Answer 8

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 9

Tampers with or actively suppresses evidence

Definition and Example

Answer 9

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 10

Accessory after the Fact
Prosecution

Proof of principal offence

Of note only

Answer 10

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 11

Accessory after the Fact
Prosecution

Acquittal of offender

Of note only

Answer 11

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.