Accessory After the Fact - Module Flashcards
Accessory After the Fact - Module
Introduction
An accessory after the fact is a person who assists the offender, or destroys
or tampers with evidence, in order to help the offender to avoid arrest, or to
escape after arrest.
Accessory after the fact
Section 71, Crimes Act 1961
(1) An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him, in order to enable him to escape after arrest or to avoid arrest or conviction.
(2) Repealed (Crimes Amendment Act 2019)
Penalty section Section 312, Crimes Act 1961
Every one who is accessory after the fact to any imprisonable offence, being an offence in respect of which no express provision is made by this Act or by some other enactment for the punishment of an accessory after the fact, is liable to imprisonment for a term not exceeding 7 years if the maximum punishment for that offence is imprisonment for life, and not exceeding 5 years if such maximum punishment is imprisonment for 10 or more years; and in any other case is liable to not more than half the maximum punishment to which he
would have been liable if he had committed the offence.
ELEMENTS
What needs to be proved
The elements 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.
Any person
Any person carries its natural meaning and in relation to accessory after the
fact means any other person with the exceptions discussed below.
Spouse/civil union partner exceptions
Prior to the Crimes Amendment Act 2019 specific statutory limitations were
imposed under s71(2).
These limitations still apply to offences committed prior to the Crimes
Amendment Act 2019, however the section is no longer covered in statute
post it’s repealed date.
Party
Parties to offences are previously discussed in detail.
Offence “Offence” and “crime” are words that are used interchangeably in statute,
and there is no material difference between them. They may be described as
any act or omission that is punishable on conviction under any enactment,
and are demarcated into four categories within s6, Criminal Procedures Act
2011.
Offence must be complete
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.
Knowing any person to have been a party to an offence
Simester & Brookbanks25 opine that “Knowing” means “knowing, or
correctly believing” … the belief must be a correct one, where the belief is
wrong a person cannot know something:
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. Mere
suspicion of their involvement in the offence is insufficient.
Knowledge must exist at the time assistance given
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
Wilful blindness
R v Briggs (17/03/09, Duffy J, HC Whangärei CRI-2008-027-660).
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.
The concept of wilful blindness (intentional ignorance) should not simply be
invoked because the person should have inquired into the facts, even in
circumstances where the person was suspected of having involvement in an
offence. To do so would create a situation where knowledge and
recklessness are indistinguishable.
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.
Actus reus of an accessory after the fact
The accessory must do a deliberate intentional act (one of the five mentioned
below), with the purpose of assisting the person to evade justice in one of the
three ways in s71(1) – escape after arrest, avoid arrest, or avoid conviction.
They must also posses the knowledge, as discussed above.
The intentional acts are:
* receives
* comforts
* assists
* tampers with evidence
* actively suppresses evidence
These five elements define what a person must do to become an accessory
after the fact. There is no requirement in law that all of the five elements are
satisfied and it is sufficient where only one is. Therefore the actions
performed by an accessory could be captured by one or more of the
elements.
Offence must be complete
In R v Mane26, the accused was initially charged with being an accessory
after the fact to murder, in that it was alleged that he gave assistance to the
parties charged with the murder of another.
The assistance alleged was given after the victim had been shot and before
the victim had succumbed to his injuries. Upon reflection the crown
withdrew the charge and was granted leave to substitute a charge under
s117(d) Crimes Act 1961, (wilfully attempting to pervert the course of
justice).
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.
Receives, comforts or assists
Receives, comforts and assists are traditional common law terms and in
general are not interpreted by the Courts in their literal sense, but are
regarded as expressing a general view that the accessory assisted the
offender(s) to evade justice, by one means or another.
Receiving or comforting
Harbouring an offender or offering them shelter can be considered receiving
and/or comforting, eg hiding a prison escapee in a basement.
Comforting encompasses situations where an accessory provides an offender
with things such as food and clothing.
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, in general terms, 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.
Assisting
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 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.
To evade justice
In the matter of R v Gibbs27, Gibbs was convicted as an accessory after the
fact to an escape made by a convicted murderer. Gibbs and the escapee were
together at a hiding place before Gibbs left to uplift supplies, before
returning with them for their joint use. The Court determined that the
escapee was being helped by Gibbs due to Gibbs supplying provisions,
despite an argument that they were for Gibbs’ own benefit.
Gibbs28 highlights the act or acts done by the accessory must have helped the
other person in some way to evade justice.
Tampers with or actively suppresses evidence
These two elements (acts) are more explicit in that they show a requirement
for some form of active conduct in respect of the evidence, ie the deliberate
concealing of evidence or providing false information to police in respect of
it are covered by the section, whereas silence or non-disclosure such as
failing to report an offence to the authorities will not attract liability.
Tampers with evidence
Tampers means to alter the evidence against the offender.
Example:
Modifying an offender’s telephone records to conceal communications that
might implicate them.
Actively suppresses evidence
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.
In R v Levy29, Levy was convicted of being an accessory after the fact to
counterfeiting currency. Levy had removed equipment after it had been used
by the offender in the counterfeiting process and after the offender’s arrest
and the recovery of moulds used in the counterfeiting.
It was held that Levy had done a deliberate act in relation to the evidence
against the offender for the purpose of assisting that offender to evade
justice.
In the case of destruction of evidence, the Court in Reddy30 said 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 suppressed “could be” evidence.
Attempting to be an accessory
It is possible to be convicted of attempting to be an accessory after the fact.
In R v DH31 the appellant was charged and convicted with attempting to be
an accessory after the fact to murder by assisting others in the unsuccessful
attempt to dispose of a weapon used in a fatal robbery.
Indirect assistance
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.
Innocent agent
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.
An accessory’s intent
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.
The intent need not be the dominant reason, but it must nevertheless be
present, ie where an accessory conceals evidence that would diminish their
own chances of apprehension as an accessory as well as them having the
intent that it would diminish the chances of the offender being caught.
Intent
See the earlier discussion on intent.
Prosecution
Charging an accessory
137, Criminal Procedure Act 2011
Proceedings against parties to offences, accessories, and receivers
(1) This section applies to every person charged—
(a) as a party to an offence (not being the person who actually committed it); or
(b) with being an accessory after the fact to any offence; or
(c) with receiving property knowing it to have been stolen or dishonestly
obtained.
(2) Every person to whom subsection (1) applies may be proceeded against and
convicted for the offence whether or not the principal offender or any other party to
the offence or the person by whom the property was obtained has been proceeded
against or convicted.
(3) Every person to whom subsection (1) applies may be proceeded against and
convicted—
(a) alone as for a substantive offence; or
(b) jointly with the principal or other offender or person by whom the property
was stolen or dishonestly obtained.
(4) If any property has been stolen or dishonestly obtained, any number of receivers at
different times of that property, or of any part or parts of it, may be charged with
substantive offences, and may be tried together.
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.
Proof of the principal offence
In R v Mane32 the Court agreed found that that 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.
Acquittal of the offender
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.
This will be reliant on the state of the evidence and an analysis in order to
determine whether differing verdicts are warranted by differing evidence
against the accessory and the offender. For example an offender confesses
to committing an offence, but that confession is ruled inadmissible and
results in an acquittal, in the case of his accessory, the confession being ruled
is admissible in the proceedings against the accessory and thus a conviction
against the accessory is recorded.
