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  • Writer's pictureJarrod Carter

What does it mean to be an Accessory to a Crime?

If someone commits a crime that you had no direct involvement in, you can still be charged with the offence. You can be charged with the crime if you fulfil the requirements for being considered an ‘accessory’ to the crime. Being charged as an accessory to a crime is not uncommon in the criminal justice system. In this article, we will discuss what the law says about being an accessory to a crime and the consequences of being charged as an accessory.

There is a long history in the common law of Judges trying to fairly sentence "accessories to crimes". In the High Court Case, Darkan v The Queen (2006) 227 CLR 373 Gleeson CJ, Gummow, Heydon and Crennan JJ said at 397 [76]:

Whatever the common law in the late 19th century was in relation to the problem dealt with by s8 of the Code, it is clear that now at common law an accessory is liable if the principal offender's crime is "foreseen as a possible incident of the common unlawful enterprise": Chan Wing-Siu v The Queen [1985] AC168 at 175. Although the law has long recognised accessorial liability, it has also long attempted to lay down limits to the accessorial liability of a person who shared a common purpose with a wrongdoer, or who instigated a wrongdoer to commit a crime. The alleged accessory is not to be liable for everything a principal offender did, either vicariously or absolutely. Over time the law has employed different techniques for placing accessorial liability within just limits while continuing to give it substantial room for operation. The common law protects against excessively wide liability by demanding actual foresight, albeit of a possibility.

The phrase ‘accessory to a crime’ is one that we often hear in legal dramas on TV, but what exactly is an accessory? Simply put, an accessory is somebody who encourages or assists in the commission of the crime at some point. There are three different types of accessories under the law: accessories before the fact, accessories after the fact, and accessories at the fact, also known as acting in concert or acting with a common purpose.

Accessory Before the Fact

A person is considered an accessory before the fact if they knowingly assisted the principal offender prior to the offence. For instance, they may have given advice on how to commit the crime or provided items which they knew would be used in the crime. However, it is important to note that simply knowing in advance that another person was going to commit a crime does not make you an accessory to the crime. Instead, you have to have actively aided or abetted them in committing the crime.

Accessory After the Fact

An accessory after the fact is someone who was not directly involved in planning or carrying out the offence, but who intentionally assisted the principal offender after the offence occurred. This could include helping the principal offender escape after the crime, or hiding evidence of the crime (i.e. hiding a body to assist a murderer in evading detection).

In Western Australia, Section 10 of the Criminal Code defines an accessory after the fact as a person who, knowing that another person has committed an offence, receives or assists that person in order to enable them to escape punishment. It is worth noting that a person does not become an accessory after the fact to an offence committed by their spouse by receiving or assisting them.

Section 562 of the Criminal Code in Western Australia states that any person who becomes an accessory after the fact to an indictable offence is guilty of a crime. If found guilty, a person is liable to imprisonment for 14 years if the principal offence is punishable on indictment with imprisonment for life, or half the penalty with which the principal offence is punishable on indictment in any other case.

For an offence where the principal offence may be dealt with summarily, the penalty for the accessory to the crime is the lesser of the penalty with which the principal offence is punishable on summary conviction or half the penalty with which the principal offence is punishable on indictment.

When You Could Be Charged as an Accessory

If your friend carries out a house robbery, and you are not directly involved in it, could you still be charged with the same offence? It might seem unfair, but in certain situations, the answer is yes – for instance, if you acted as a lookout for them, or drove them to and from the location, you will be liable for exactly the same crime. Alternatively, you may be charged as being an accessory if you assist them before or after the commission of the offence.

Consequences of Being Charged as an Accessory

Being charged as an accessory to a crime is a serious offence and can have severe consequences. In many cases, the punishment for being an accessory is almost as severe as that for committing the crime itself. This is because an accessory helps the perpetrator avoid detection or prosecution and makes it harder for law enforcement to bring the criminal to justice.

One common defence strategy for those charged as accessories is to argue that they had no knowledge of the crime or did not intend to assist the perpetrator. For example, if you were in the wrong place at the wrong time and happened to be with someone who committed a crime, you may be able to argue that you did not know what was happening and did not participate in the crime.

Another defence strategy is to argue that you were coerced or threatened into assisting the perpetrator. If you can show that you were in fear for your safety or the safety of your loved ones, you may be able to avoid conviction as an accessory.

It is also possible to argue that you did not actually help the perpetrator commit the crime. For example, if you simply provided transportation to the perpetrator without knowing that they were planning to commit a crime, you may be able to argue that you did not assist in the commission of the crime.

If you are facing charges as an accessory, it is important to take the charges seriously and to work with a skilled criminal defence attorney to build a strong defence. If you are innocent in assisting in a crime either before, during or after, it is important that your defence is carefully put before the court by a skilled criminal defence lawyer so that justice is served.

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