Quinn v R [2023] NSWCCA 229

Quinn v R [2023] NSWCCA 229 · Read the judgment on AustLII

Catchwords: Accessorial liability – accessory before the fact

In this decision the CCA has confirmed the elements that the prosecution must prove when alleging that an accused was an accessory after the fact, and faintly, implicitly, bemoaned the fact that NSW remains the only Australian jurisdiction not to codify this area of the law.

The applicant was convicted of being an accessory after the fact to an unlawful killing (that is, a manslaughter) committed by her co-accused. The co-accused had been acquitted of murder but convicted of manslaughter on the basis of excessive self-defence: he struck the deceased a single blow to the head with a samurai sword following a violent invasion into their home by the deceased. The applicant admitted that, following the acts in question, she had booked hotels and transport for herself and the co-accused, and gave the co-accused a change of clothes, but she denied that those acts were done in order to help the co-accused evade arrest. The factual matrix, particularly as it applied to proof of accessorial liability, was more complicated than is warranted by this summary. It suffices for present purposes to say that, in the course of considering other appeal grounds – including a successful ground that the verdict was unreasonable – the Court (Bell CJ, Sweeney J agreeing; Wilson J dissenting) considered what needs to be proved when an accused is charged with being an accessory after the fact.

The Court observed that, as noted in a NSW Law Reform Commission (‘NSWLRC’) report delivered in 2010, New South Wales is alone among Australian jurisdictions in not defining, in legislation, what it means to be an accessory after the fact. There is also no statutory offence: ss 347 and 350 recognise, but do not create the offence, which is accordingly left to the common law to define (at [103]).

Here, the CCA endorsed the NSWLRC’s 2010 analysis to the effect that the elements the prosecution must are establish are that:

• A principal offender committed an offence.
• The accused (the alleged accessory after the fact) intentionally provided some positive assistance for the purpose of helping the principal escape apprehension, trial, or punishment. And
• At the time of providing such assistance, the accused was aware of the essential elements and circumstances which made up the principal’s offence (at [104]).

This led to a complex issue in the present case – not necessary to understand this summary – requiring an inquiry into the applicant’s belief about the circumstances said to have been in self-defence, such that, at the time she was said to have been helping the co-accused to evade arrest, she believed the co-accused’s conduct was necessary (at [107]ff).