Accessory After the Fact Module

Question 1

Accessory after the fact (Elements)

Answer 1

Crimes Act 1961 Section 71 (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.

Question 2

What needs to be proven

Answer 2

• 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 3

Spouse/Civil Union Partner Exceptions

Answer 3

Prior to the Crimes Amendment Act 2019 specific statutory limitations were
imposed under s71(2).

Question 4

Offence Must be Complete

Answer 4

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

Question 5

Offence must be complete (Case Law)

Answer 5

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

Question 6

Knowing any Person to have been Party to Offence (Case Law)

Answer 6

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 is insufficient.

Question 7

Knowledge must exist at the time assistance given

Answer 7

• an offence has been committed, and
• the person they are assisting was a party principal or secondary) to that offence

Question 8

Actus Reus of Accessory after the fact

Answer 8

• receives
• comforts
• assists
• tampers with evidence
• actively suppresses evidence

Question 9

Tampers with evidence (Definition)

Answer 9

Tampers means to alter the evidence against the offender

Question 10

Actively suppresses evidence (Definition)

Answer 10

Actively suppressing evidence encompasses acts of concealing or destroying evidence against an offender.

Question 11

An accessories intent

Answer 11

One of three intents must held by the assistor when performing the act
* escape after arrest
* avoid arrest
* avoid conviction.

Question 12

Receives (Definition)

Answer 12

Common law meaning and refers to harbouring an offender or offering them shelter, eg hiding an escapee in a basement

Question 13

Comforts (Definition)

Answer 13

Common law meaning and refers to providing shelter, accommodation, food, clothing or other supplies to an offender

Question 14

Assists (Definition)

Answer 14

Common law meaning and refers to providing transport, acting as a look out, identifying purchaser for 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.

Question 15

Auqittal of the Offender

Answer 15

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.