Accessory after the Fact - Lesson Notes

Question 1

Wilful Blindness

Answer 1

A person is considered willfully 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,
in situations where the means of knowledge are easily at hand and the person realizes the likely truth of the matter but refrains from inquiring in order not to know.
R v Briggs

Question 2

Actus reus of an accessory after the fact

Answer 2

The accessory must do a deliberate intentional act (one of 5)
receives, comforts, assists, tampers with evidence, actively suppresses evidence.
No requirement that all five are satisfied, and it is sufficient where only one is.

Question 3

An accessorys intent

Answer 3

The intent held by the accessory wen performing the act must be one of the three contained within the statute, to enable the offender to:
escape after arrest, avoid arrest, avoid conviction

Question 4

What needs to be proved

Answer 4

The ingredients of the offence of accessory after the fact are:
• 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

Spouse/civil union partner exceptions

Answer 5

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 6

Does the offence need to be complete to be considered an accessory

Answer 6

The offence must be complete in order to be an accessory. Where the person is involved before or during the commission of the offence you should consider whether they are a party to the offence or a conspirator

Question 7

Knowing any person to have been a party to an offence - case law

Answer 7

R v Crooks [1981] 2 NZLR 53 (CA).
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.

Question 8

What Knowledge must exist at the time assistance given

Answer 8

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

Question 9

Wilful blindness -case law

Answer 9

R v Briggs
knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.

Question 10

A person is considered wilfully blind in only two situations, these being:

Answer 10

• 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

Offence must be complete - Case Law

Answer 11

R v Mane (1989) 5 CRNZ 375.

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

Question 12

Assisting - defined

Answer 12

To assist covers a significant number of situations: providing transport, acting as a look out, identifying someone willing to purchase stolen property as a receiver, 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 evidence - defined

Answer 13

Tampers means to alter the evidence against the offender.

Question 14

Can you be charged with accessory if not direct 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

What is An accessory’s intent

Answer 15

The intent held by the accessory when performing the act that assists the offender must be one of the three contained within the statute; to enable the offender to:
• escape after arrest
• avoid arrest
• avoid conviction.
Mere knowledge that an act is likely to assist an offender is insufficient in itself.

Question 16

Can you still be charged as an accessory if the principal is aquitted

Answer 16

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 17

Accessories after the fact might be indicated via:

Answer 17

a thorough crime scene examination or search of the principal offender’s address – this may reveal someone has tampered with evidence
− a delay in locating the offender (because of help from an accessory)
− an admission by the accessory regarding assistance provided
− an admission by the offender that they were assisted by an accessory
− the behaviour of the accessory revealing guilty knowledge
− information from independent witnesses
− circumstantial evidence
− electronic interceptions
− telephone, text, MMS or email communications
− forensic evidence (DNA located on an exhibit that belongs to an accessory)
− your own observations (witnessing the actions of the accessory in deliberately hindering the investigation or helping the offender in some way).

Question 18

What are the intentional acts in AAF

Answer 18

The intentional acts are:
• receives
• comforts
• assists
• tampers with evidence
• actively suppresses evidence.