Accessory after the fact

Question 1

What is the liability of AATF?

Answer 1

Sec 71 Accessory after the fact, CA 1961
1. Knowing any person to have been a party to the 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 arrest or to avoid arrest or conviction

Question 2

What does Sec 71(2) CA 1961 relate to?

Answer 2

No married person whose spouse or civil union partner has been a party to an offence shall become an accessory after the fact to that offence by doing any act to which this section applies in order to enable the spouse or civil union partner or the spouse or civil union partner and any other person who has been a party to the offence, to escape after arrest or to avoid arrest or conviction

Specific statutory limitations are imposed under s71(2). You cannot be charged with being an accessory after the fact to your spouse (legally married), or your spouse and another party (when they work in concert). This same limitation applies to those in a civil union, but does not extend to encompass those is a de facto relationship or any other family relationship.
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 3

What is the penalty relating to AATF?

Answer 3

Penalty section s312, CA 1961
7 years if the max punishment for that offence is imprisonment for life, and not exceeding 5 years if such max punishment is imprisonment for 10 or more years; and in any other case is liable to no more than half the max punishment to which he would have been liable if he had committed the offence.

Question 4

What are the elements of AATF?

Answer 4

• 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 5

Define offence

Answer 5

“Offence” and “crime” interchangeable in statute, no material difference. May be described as an act or omission that is punishable on conviction under any enactment, demarcated into 4 categories within s6 Criminal Procedures Act 2011.

Question 6

Explain offence completion in relation to AATF

Answer 6

Offence must be completed in order to be an accessory. If the person is involved before or during the commission of the offence you should consider whether they’re a party to the offence or conspirator.

Question 7

Define knowing

Answer 7

Simester & Brookbanks: Knowing means knowing or correctly believing. The belief must be a correct one, where the belief is wrong a person cannot know something.

Question 8

What is the case law relating to knowing any person to have been a party to an offence?

Answer 8

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 9

Explain the timing of knowledge

Answer 9

At the time of the assistance being given, an accessory must possess the knowledge that:
• An offence has been committed, and
• The person they are assisting was a party (principal or secondary) to that offence.
Where this knowledge comes about after the assistance has been given they are not liable as an accessory.

Question 10

What is the case law relating to wilful blindness?

Answer 10

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.
A person is considered wilfully blind in only two situations:
• 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 11

Explain the actus reus of AATF

Answer 11

The accessory must do a deliberate intentional act (1 of 5), with the purpose of assisting the person to evade justice in 1 of 3 ways in s71(1) (escape after arrest, avoid arrest, or avoid conviction). They must also possess knowledge.
Intentional acts are: receives, comforts, assists, tampers with evidence, actively supresses evidence.
It is sufficient where only one of the intentional acts is performed. One or more elements may be done.

Question 12

What is the case law relating to offence completion?

Answer 12

R v Mane

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

Question 13

Define receives, comforts or assists

Answer 13

Traditional law terms, not interpreted by Courts, but regarded as expressing a general view the accessory assisted the offender(s) to evade justice, by one means or another.

Question 14

Define receiving or comforting

Answer 14

Harbouring or offering shelter can be considered receiving and or comforting. Comforting encompasses situations where an accessory provides an offender with things such as food and clothing.

Question 15

Can receivers of property be convicted as AATF?

Answer 15

Note: Receivers of dishonestly obtained property cannot be convicted as accessories after the fact simply because they have received such property. This is because the receiving is not done with a view to assisting the offender evade justice. Where you are able to prove that the property was received with such an intention then an accessory conviction could be recorded.

Question 16

Define assisting

Answer 16

To assist covers a significant number of situations. Giving advice, information, material or services to the offender is also captured.

Examples: providing transport, look out, deliberately give false info as to offenders whereabouts

Question 17

Explain “to evade justice”

Answer 17

R v Gibbs (together at a hiding place, got food for escaped murderer) highlights the act done by the accessory must have helped the other person in some way to evade justice.

Question 18

Define and explain Tampers with or actively suppresses evidence

Answer 18

Tampers means to alter the evidence against the offender.

Actively suppresses evidence encompasses acts of concealing or destroying evidence against an offender

It is not necessary to prove that what the accused destroyed would, in fact, have been evidence had it not been destroyed. The appropriate test was whether what was tampered with or supressed “could be” evidence.

More explicit in that they show a requirement for some form of active conduct in respect of evidence. Deliberate concealing or providing false information to Police in respect to property are covered but silence or failing to report an offence does not attract liability.

Question 19

Explain attempting to be an accessory

Answer 19

It is possible to be convicted of attempting to be an accessory after the fact.

R v H: charged after unsuccessful attempt to dispose of weapon used in a fatal robbery

Question 20

Explain indirect assistance

Answer 20

There is no requirement the offender is directly assisted by the accessory

Question 21

Explain an innocent agents liability

Answer 21

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 22

Explain the accessory intent

Answer 22

The intent held by the accessory when performing the act that assists the offender must be 1 of 3 to enable the offender to: escape after arrest, avoid arrest, avoid conviction.
Mere knowledge an act is likely to assist an offender is insufficient in itself.
The intent need not be the dominant reason, but it must nevertheless be present.

Question 23

Explain charging documents in relation to AATF

Answer 23

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 with any party to the principal crime.

Question 24

Explain “proof of the principal offence”

Answer 24

In R v Mane the Court found that an accessory after the fact is entitled to insist on proof 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/conviction having been entered, the principal offence committed must still be proved when required

Question 25

Explain what happens when the offender is acquitted

Answer 25

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