A person may be criminally liable in various ways for a crime physically committed by another person. If you assist a person in evading arrest, from being charged, or the hiding of evidence, you may be charged with being an accessory after the fact. This is irrespective of whether you were there at the time the other person committed the offence.

What is an “accessory after the fact”?

Put simply, an accessory to a crime encourages or assists in the commission of a criminal offence at some point, either before, during, or after the crime is actually committed.

As such, an offence of accessorial liability can arise when you were not directly involved at the time of the offence, but were involved after the offence was committed.

The act of being an accessory after the fact is governed by various sections of the Crimes Act 1900 (NSW), there are different penalties depending on the original offence.

Knowledge of the offence

In order to be convicted for being an accessory after the fact, the prosecution must prove beyond a reasonable doubt that you knew that you were assisting another person who had committed the original offence.

For example, a person who gives their friend a lift after the friend committed an offence, but was not aware that an offence had been committed, is not considered an accessory after the fact.

What constitutes being an accessory after the fact?

A person may be considered an accessory after the fact where they:

1. Hide or conceal an offender from police;
2. Help with the destruction or concealment of evidence that may implicate an offender; or
3. Give false information to police with a view to diverting their investigations away from the offender.

1. Concealing an offence

Section 316 of the Act imposes criminal liability in circumstances where a person:

• Knows or believes that a serious indictable offence has been committed by another;
• Knows or believes that they have information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence; and
• Fails without reasonable excuse to bring that information to a member of the NSW Police Force

A “reasonable excuse” will apply where the information relates to a sexual offence or a domestic violence offence where the alleged victim is an adult, and a person believes on reasonable grounds that the alleged victim does not wish to have the matter reported.

The maximum penalty for an offence under Section 316 depends on the indictable offence committed by the principal offender.

Further, it is also a separate offence under Section 316A of the Act to conceal a child abuse offence.

2. Perverting the course of justice

Pursuant to s 319 of the Act, it is an offence to pervert the course of justice.

Perverting the course of justice is defined as obstructing, preventing, perverting, or defeating the course or administration of justice.

The offence carries a maximum penalty of 14 years in prison.

Examples of this offence can include lying to investigators, tampering with or destroying evidence or intimidating witnesses with a view to preventing the truth about a crime being revealed.

3. Hindering an investigation

Under Section 315 of the Act, it is an offence to hinder the investigation of a serious indictable offence.

Maximum penalties

The maximum penalty for being an accessory after the fact depends on the crime committed by the offender. The following summarises the maximum penalties as stipulated in the Crimes Act 1900 (NSW).

• Every accessory after the fact to treason-related offences shall be liable to 2 years imprisonment (Section 348)
• Every accessory after the fact to murder shall be liable to 25 years imprisonment (Section 349(1) of the Act).
• Every accessory after the fact to armed robbery, robbery in company or kidnapping shall be liable to 14 years imprisonment (Section 349(2) of the Act).
• Every accessory after the fact to any other serious indictable offence shall be liable to 5 years imprisonment (Section 350 of the Act).

The Act also provides several additional offences relating to specific acts that involve aiding or assisting an alleged offender after the commission of a crime.

If you are concerned about your conduct after the commission of an offence by another person, contact one of our criminal law specialists on (02) 9025 9888.

Image by Kat Wilcox