Ah Keni v R [2021] NSWCCA 263
Ah Keni v R [2021] NSWCCA 263 · Read the judgment on AustLII
Catchwords: Accessory after the fact – active steps necessary – silence insufficient
In this decision the CCA has found that in order to be guilty of being an accessory after the fact, an offender has to take active steps to assist the principal offenders. It will not be enough to simply fail to report the offence to the police – although silence might sometimes be relevant to objective seriousness, provided it occurs in the context of taking active steps to assist.
The appellant was convicted of being an accessory after the fact to murder. The deceased (a solicitor) was shot and killed whilst sitting at a Bankstown café. The appellant’s husband was a principal in the murder, in that he directly assisted the shooter commit the offence: he conducted surveillance of the location to check that the deceased was there, he gave the shooter a jacket, and after the offence he drove a getaway van. The appellant was in the van when it was used for surveillance before the offence and when it was driven away after the offence, but there was no allegation that she knew about the offence before or during its commission. The sentencing judge found that she knew by no later than the following day that her husband and the shooter had been the perpetrators of the offence (as well as the identity of the shooter). With that knowledge, over the course of about six weeks she then took steps to assist the principal offenders, including: going back to check the scene of the crime for any CCTV cameras; making arrangements to move to New Zealand with her husband and their family; transferring ownership and registration of the van (which was in her name at the time of the offence) to conceal its use on the day of the murder; changing her name and her husband’s name in New Zealand; agreeing with her husband that the shooter’s legal fees would be paid for and his family looked after; and giving false and misleading information in an interview following her arrest.
Relevantly, in considering the extent to which the appellant’s actions impeded the investigation the sentencing judge found that the most significant factor was that the appellant did not go to police at an early stage and provide assistance, and she lied in her police interview after arrest.
The appellant appealed on grounds including that the sentencing judge erred in finding that the appellant’s failure to go to the police at an early stage and provide assistance was relevant to the objective seriousness of the offence. The CCA here consisted of Bathurst CJ, with whom Simpson AJA and Bellew J agreed (with Simpson AJA offering a very significant short observation as part of her agreement).
An offence of being an accessory after the fact can be contrasted with the offence of ‘concealing a serious indictable offence’ (found in Crimes Act 1900 s 316). The former involves active assistance, whereas the latter involves failing to inform the authorities; authority emphasises that being an accessory after the fact requires the taking of active steps to assist the principal offender (at [76]). Silence may be relevant to objective seriousness where an offender remains silent as to the offence whilst providing active assistance, but silence in isolation cannot constitute the offence (at [80]). In one decision (R v Waters [1999] NSWSC 893) Simpson J had stated that accessorial liability could be constituted by non-disclosure of an offence, but Bathurst CJ’s judgment considered that conclusion was wrong. Having been the author of the judgment in the earlier decision, Simpson AJA was also a judge in this case. Perhaps unusually, in addition to concurring with the Chief Justice, her Honour confirmed here that her conclusion in Waters was wrong (at [128]).
In this case, the offence as stated in the indictment was to receive, harbour, maintain and assist the principal offenders. That required taking active steps, and a mere failure to report the offence does not fall within the description (at [85]). That said, silence may be taken into account in assessing objective seriousness, when the silence is associated with acts of active assistance. Further, silence when it has the propensity to mislead the investigator may constitute the offence, provided the other elements are made out. But a mere failure to report which does not occur in the context of giving such assistance does not make out the offence (at [86]). In this case, despite counsel’s concession at first instance, it was not appropriate for the sentencing judge to take into account that the appellant did not go to the police at an early stage and provide assistance; such failure does not hinder an investigation and render a person liable as an accessory (at [87]).
Accordingly, this ground of appeal was made out (the others failed) and the appellant was resentenced to 2 years and 1 month, with a non-parole period of 1 year and 3 months.