4. Accessory After the Fact - Elements

Question 1

What are the elements of the offence of accessory after the fact?

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Answer 1

• 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 2

What is an offence?

Answer 2

“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.

Question 3

At what point is a person considered an accessory?

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Answer 3

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 4

Define knowing as per Simester and Brookbanks?

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Answer 4

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

Question 5

In relation to knowing, what was held in R v Crooks?

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Answer 5

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 6

What knowledge must exist to be an accessory?

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Answer 6

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

Question 7

In relation to wilful blindness, what was held in R v Briggs?

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Answer 7

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 8

What are the only two situations where a person is considered wilfully blind?

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Answer 8

• 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 9

What is the actus reus of an accessory?

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Answer 9

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

Question 10

R v Mane dealt with the point at which a person becomes an accessory. What were the circumstances?

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Answer 10

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).

Question 11

What was held in R v Mane?

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Answer 11

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

Question 12

How are receives, comforts and assists interpreted?

Answer 12

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 13

What acts can be considered receiving and comforting?

Answer 13

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.

Question 14

What is the distinction between receivers of dishonestly obtained property and an accessory after the fact?

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Answer 14

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.

Question 15

Provide examples of assisting?

Answer 15

• 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.

Question 16

What does tampering with or actively supressing evidence include?

Answer 16

These two elements (acts) are more explicit in that they show a requirement for some form of active conduct in respect of the evidence

Question 16

Define tamper

Answer 16

Tampers means to alter the evidence against the offender.

Question 17

Provide an example of tamper?

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Answer 17

Modifying an offender’s telephone records to conceal communications that
might implicate them

Question 18

Define actively suppresses evidence

Answer 18

Encompasses acts of concealing or destroying evidence against an offender.

Question 19

Provide an example of actively suppresses evidence?

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Answer 19

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

Question 20

Does a person have to be directly assisted?

Answer 20

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

Question 21

Provide an example of indirect assistance?

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Answer 21

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 22

What must the intent of the accessory be?

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Answer 22

to enable the
offender to:
* escape after arrest
* avoid arrest
* avoid conviction.

Question 23

Outline intent as previously discussed?