Accessory After the Fact

Accessory After the Fact

s71(1), CA61

7y (for life imprisonment offences)
5y (for offences imprisonable by 10y+)
½ penalty (of the offence if less than 10y)

1. Knowing any person to be a party to an offence

2. Receives, comforts or assists that person;
   OR tampers with;
   OR actively suppresses any evidence against him or her;

3. In order to help him or her to escape after arrest;
   OR to avoid arrest OR conviction.

Person

Carries its natural meaning. Gender neutral. Proven by judicial notice or circumstantial evidence.

Knowledge

“Knowing” means “knowing, or correctly believing” … a person may believe something wrongly but cannot ‘know’ something that is false.

CL R v Crooks - Knowledge

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.

CL R v Briggs - Wilful Blindness

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.

When would a person be considered wilfully blind?

• Where a 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.

What knowledge must an accessory possess?

At the time of the assistance given, he or she must have knowledge that:
• an offence has been committed AND
• the person they are assisting was a party (principal or secondary) to that offence.

Party

s66, CA61

(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.

Definition of Offence/Crime

Any act or omission that is punishable on conviction under any enactment, and are demarcated into four categories within s6, Criminal Procedures Act 2011.

What is the actus reus of being an accessory after the fact?

• Receives

• Comforts

• Assists

• Tampers with evidence

• Actively suppresses evidence

CL R v Mane

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

Receives

Refers to harbouring an offender or offering them shelter can be considered receiving and/or comforting, eg hiding a prison escapee in a basement.

Comforts

Refers to providing food, clothing, shelter, accommodation, or other supplies to an offender.

Assists

Refers to 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.

Tampers with or actively suppresses evidence

Tampers with:
Means to alter the evidence against the offender

eg, modifying an offender’s phone records to conceal communications that might implicate them.

Actively suppresses evidence:
Encompasses acts of concealing or destroying evidence against an offender

eg, bloodied clothing is washed repeatedly to remove evidence or it is set alight to destroy the clothing.

CL R v Levy

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.

Attempting to be an accessory

R v DH - 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.

AATF - Indirect assistance

There is no requirement that the offender (person A) is directly assisted by the accessory (person B).

e.g Person A commits an offence and is assisted directly by another accessory - Person C. Person B assists Person C directly and not Person A. Person B is still an AATF to Person A.

AATF - 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 must be to enable the offender to:

• escape after arrest

• avoid arrest

• avoid conviction

Prosecution - Proof of principal offence

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.

Prosecution - Acquittal of offender

Of note only

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.

What is the principal difference between a party to an offence and an accessory after the fact?

Parties are involved in the offence before or during the commission of the offence, whereas accessories are involved after the principal offence has been committed.

Under what circumstances can you charge someone as being an AATF when they have received goods dishonestly obtained?

When the receiving of those goods was done with a view to helping the offender and enabling them to evade justice.