Association offences (Accessory after the fact)

Question 1

What is the Act and Section for Accessory After the Fact?

Answer 1

Section 71 Crimes Act 1961

Question 2

Section 71(1) Crimes Act 1961

Answer 2

(1) An accessory after the fact to an offence is once 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 3

What is the penalty section for accessory after the fact?

Answer 3

Section 312 Crimes Act 1961

Question 4

What does the penalty section 312 stipulate?

Answer 4

Where no express provision for penalty is made by this act the maximum punishment for an offence of an accessory after the fact is 7 years if the maximum punishment is imprisonment for life and not exceeding 5 years if such maximum punishment is imprisonment for 10 or more years.
In any other case, it’s half the maximum punishment to which he would have been liable if he had committed the full offence.

Question 5

What needs to be proved for accessory after the fact?

Answer 5

• That the person who is received, comforted or assisted by the accessory is a party to an offence that has been committed.
• That at the time of receiving, comforting or assisting that person, the accessory knows that person was a party to the offence.
• That the accessory received, comforted or assisted that person or tampered with or actively suppressed any evidence against that person.
• That, at the time of the receiving, comforting or assisting etc, the accessory’s purpose was to enable that person to escape after arrest or to avoid arrest or conviction.

Question 6

R v Crooks - what does it state?

Answer 6

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 7

When must knowledge exist for the person to be an accessory after the fact?

Answer 7

At the time of the assistant being given, an accessory must possess the knowledge that:
- An offence has been committed, and
- The person they are assisting was a party to that offence.

Where this knowledge comes after the assistance has been given, they are not liable as an accessory.

Question 8

R v Briggs - what is stated?

Answer 8

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.

Question 9

When should wilful blindness not be invoked?

Answer 9

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.

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

What is the Actus Reus of an accessory after the fact?

Answer 11

The accessory must do a deliberate intentional act with the purpose of assisting the person to evade justice in one of the three ways.

Question 12

What are the five intentional acts to which Accessory After the Fact applies?

Answer 12

• Receives
• Comforts
• Assists
• Tampers with evidence
• Actively suppresses evidence.

Question 13

What do the five intentional acts to which Accessory after the fact define?

Answer 13

These five elements define what a person must do to become an accessory after the fact. There is no requirement 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.

Question 14

What must the primary offence be for the defendant to be convicted as an accessory after the fact?

Answer 14

The offence must be complete.

Question 15

R v Mane - What was stated?

Answer 15

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

Question 16

What is the general definition meant by “Receives, comforts or assists”

Answer 16

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.

Question 17

“Receiving or comforting” definition

Answer 17

Harbouring an offender or offering them shelter can be considered receiving and/or comforting, e.g. hiding a prison escapee in a basement.

Comforting encompasses situations where an accessory provides an offender with things such as food and clothing.

Question 18

Who cannot be charged with being an accessory after the fact?

Answer 18

Receivers of dishonestly obtained property cannot be convicted simply because they received such property. This is because the receiving is not done with a view to assist the offender evade justice. Where you are able to prove this was the intention then this conviction could be recorded.

Question 19

What is the definition of assisting?

Answer 19

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 offenders whereabouts. Giving advise, information, material or services to the offender is also captured.

Question 20

What does R v Gibbs highlight?

Answer 20

The act or acts done by the accessory must have helped the other person in some way evade justice.

Question 21

What is “Tampers with or actively suppresses evidence” defined as?

Answer 21

These two elements are more explicit in that they show a requirement for some form of active conduct in respect of the evidence. e.g. 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 will not attract liability.

Question 22

What does “Tampers” mean?

Answer 22

To alter the evidence against the offender.

Question 23

What is an example of tampering with evidence?

Answer 23

Modifying an offenders telephone records to conceal communications that might implicate them.

Question 24

What does “Actively suppresses evidence” mean?

Answer 24

Concealing or destroying evidence

Question 25

What is an example of Actively suppressing evidence?

Answer 25

Bloodied clothing is washed repeatedly to remove evidence or it is set alight to destroy the clothing.

Question 26

What was held in R v Reddy?

Answer 26

It is not necessary to prove that what the accused destroyed would have been evidence had it not been destroyed.

Question 27

Can you be charged with attempting to be an accessory?

Answer 27

Yes, it is possible.

Question 28

What is the requirement of assistance?

Answer 28

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

Question 29

What is an example of indirect assistance?

Answer 29

Person A commits an offence and is assisted directly by another accessory. 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 30

What if the primary uses an innocent agent?

Answer 30

Where an innocent agent is employed by the accessory, the actions of the innocent agent will be held to be the actions of the acessory.

Question 31

What must an accessories intent be?

Answer 31

It must be one of the three ways of assistance contained within the statute.

To enable the offender to:
- Escape after arrest
- Avoid arrest
- Avoid conviction

It does not need to be the dominant reason but the intent needs to be present.

Question 32

What is insufficient to be an accessory?

Answer 32

Mere knowledge that an act is likely to assist an offender is insufficient in itself - there must be one of the three intents present.

Question 33

What is an example of the accessorys intent not being prominent but nevertheless being present?

Answer 33

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.

Question 34

What was found in R v Mane in relation to the principal offence?

Answer 34

That an accessory after the fact is entitled to insist on proof that the alleged offence was committed and to challenge that proof.

Question 35

What happens if the offender is acquitted of the primary offence?

Answer 35

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 36

What is the conviction of the accessory after the acquittal of the primary offender reliant on?

Answer 36

It is 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.

E.g. an offender confesses to committing an offence but the confession is ruled inadmissible and results in an acquittal. In the case of the accessory, the confession being ruled is admissible against the accessory and thus a conviction is recorded.