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State v Nana [1986] PGNC 38; [1986] PNGLR 83; N532 (14 March 1986)

N532

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

ROY NANA

Goroka
McDermott AJ
13-14 March 1986

CRIMINAL LAW - Degrees of criminality - Accessory after the fact - Definition of offence - Action must enable offender to escape detection or punishment - Criminal Code (Ch No 262), ss 10(1), 519.

CRIMINAL LAW - Particular offences - Accessory after the fact - Definition of offence exclusive - Action must enable offender to escape detection or punishment - Criminal Code (Ch No 262), ss 10(1), 519.

The Criminal Code (Ch No 262), s 519, provides that a person who becomes an accessory after the fact to a crime is guilty of a crime.

Section 10(1) of the Criminal Code provides that "A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is an accessory after the fact to that offence".

An accused was charged with being an accessory after the fact to a crime of break enter and steal where he assisted the principal offenders at their behest to remove a large quantity of goods from the scene of the crime which otherwise could not have been removed.

Held

(1) The Criminal Code (Ch No 262), s 10(1), provides an exclusive definition for "accessory after the fact" for the purposes of s 519.

(2) For the purposes of being charged as an accessory after the fact an accused must do some act in order to enable the principal offender to escape detection and punishment.
R v Angie-Ogun [1969-70] PNGLR 36; The State v Amoko-Amoko [1981] PNGLR 373 at 386; R v Pompey (1924) 18 QJPR 59, and R v Andrews and Craig [1962] 1 WLR 1474 at 1477, considered.

(3) In the circumstances, the accused could not be charged as accessory after the fact to break enter and steal.

Cases Cited

Murray v The Queen [1962] TASStRp 18; [1962] Tas SR 170.
R v Andrews and Craig [1962] 1 WLR 1474.
R v Angie-Ogun [1969-70] PNGLR 36.
R v Fitzpatrick (1926) 19 Cr App R 91.
R v Lee (1834) 6 Carrington & Payne 536; [1834] EngR 923; 172 ER 1353.
R v Levy [1911] UKLawRpKQB 180; [1912] 1 KB 158; (1911) 7 Cr App R 61.
R v Pompey (1924) 18 QJPR 59.
State, The v Amoko-Amoko [1981] PNGLR 373.

Trial

After presentation of an indictment charging the accused with being an accessory after the fact to a crime of break enter and steal the trial judge questioned the capacity of the facts outlined to support the charge of being an accessory after the fact.

Counsel

C Lewis, for the plaintiff.
F Terra, for the accused.
Cur adv vult

14 March 1986

MCDERMOTT AJ: An indictment was presented charging the accused with being an accessory after the fact to a crime of break enter and steal. For the purposes of arraignment the State prosecutor advised me that on the evening of 3 June 1984 the accused was awakened at his home by friends who told him that they had broken into a house and taken a large quantity of goods. They asked the accused to help them in removing the goods. The accused then went with them to the scene. The goods at that time were hidden on the opposite side of the road to the house from which they came. The goods were then loaded into the homeowner’s vehicle and driven by the accused to the home of one of the principals. After unloading, the accused drove the vehicle off and abandoned it.

Prior to arraigning the accused I asked under what section of the Criminal Act Code (Ch No 262) (the Criminal Code) had the accused been charged. The prosecutor relies upon s 519:

"A person who becomes an accessory after the fact to a crime is guilty of a crime."

"Accessory after the fact" is not defined in that section or in the interpretation sections of the code. Rather, the phrase appears in "Division 2 — Parties to Offences", s 10:

"(1) A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is an accessory after the fact to that offence."

Exceptional provisions are then set out in relation to the husband or wife of an offender.

The question thus arises, if s 10 provides an exclusive definition of "accessory after the fact" or whether there are other meanings encompassed by that phrase, ie does it extend to the actions done by the accused in this instance.

The authors of Criminal Law and Practice of Papua New Guinea (Andrews Chalmers and Weisbrot) (1979) appear to take the narrower view that s 10 provides the definition of "accessory after the fact" — see footnote at 236. If that is so, can it be said that the accused’s actions enabled the principals to escape punishment? If punishment follows apprehension and conviction, how can it be said that by carrying away the goods, he enabled the principals to escape apprehension or conviction or punishment? It appears to me that the actions of the accused enabled the removal of a large quantity of goods from the scene, which otherwise could not have been removed.

The preliminary question is to determine whether the concept of "accessory after the fact" in s 519 is wider than that set out in s 10. Following the approach of Burbury CJ in Murray v The Queen [1962] TASStRp 18; [1962] Tas SR 170 at 173, I have endeavoured to ascertain this, allowing that:

"the basic principles of criminal responsibility firmly established before the introduction of a code play an important and sometimes dominant part in judicial reasoning in its interpretation and may influence a court to lean against a narrow literal interpretation in order to keep criminal responsibility under a code in conformity with basic concepts".

The consolidated statement of the criminal law in the Crimes Act 1900 (NSW) sets out the offence and punishment separately and without definition:

"347. Every accessory after the fact to any such felony may be indicted, convicted, and sentenced as such accessory, either before or together with or after the trial of the principal felon, whether such felon has been previously tried or not, or is amenable to justice or not."

Whilst that in itself is not helpful the comments in Criminal law in New South Wales, Vol 1, Watson and Purnell at 345-6 are:

"A person who, knowing a felony has been committed by another, receives, maintains comforts or assists that felon in anyway, either to aid in disposing of the proceeds of the crime, or to hinder the apprehension, trial or punishment of that felon is an accessory after the fact."

And more particularly:

"The assistance which makes a person an accessory after the fact must tend to prevent the principal felon from being brought to justice."

In support of these propositions Hale’s Pleas of the Crown 618 and R v Lee (1834) 6 Carrington & Payne 536; [1834] EngR 923; 172 ER 1353 are cited.

I have not been able to find here in Goroka, the pre-1964 English legislation concerning accessories but the following appears in Kenney’s Outlines of Criminal Law (16th ed) (1952) at 89, when after discussing principals of the first and second degree and accessory before the fact continues:

"But the accessory after the fact stands in a fourth and remoter degree of complicity, which in the case of misdemeanours involves no criminal responsibility at all. An accessory of this species is a person who, knowing that a felony has been committed, subsequently shelters or relieves one of the felons (even one who was a mere accessory) in such a way as to enable him to elude justice."

Examples of concealing a fugitive murderer, or of supplying his means of escape or of helping him to escape from custody, are then given.

In R v Levy [1911] UKLawRpKQB 180; (1911) 7 Cr App R 61, there was an appeal against conviction for being an accessory, the count being that she "did feloniously receive, harbour and maintain against the form of the statute" by removing from a workshop occupied by the principal offender, a convicted counterfeiter, moulds used for making counterfeit coins. The court’s judgment (at 62) is very short:

"For many years the words ‘receive, harbour and maintain’ have been used to describe the offence of being an accessory after the fact to a felony; they have come to be the correct technical description of it (whatever may be the exact meaning of ‘harbour’). The test is correctly described in Hawkins, book ii c 29, s 26 where it is stated that ‘generally any assistance whatever given to one known to be a felon in order to prevent his being apprehended, or tried, or suffering the punishment to which he is condemned, is a sufficient receipt for this purpose’. Here the indictment is in proper language, and the conviction was right."

Mrs Lewis has referred me to R v Fitzpatrick (1926) 19 Cr App R 91, which appears to be on all fours with the facts she presented for arraignment, in that after a breaking, cigars had been removed from their place of storage to a position inside the door of a warehouse, the accused met with the principals, the inference being that he was then asked to come and take cigars away. At 92, is the following:

"Assuming, then, that there was evidence from which the jury might infer that, in agreeing to do this, the appellant was conscious that he was going to remove stolen property, that would justify the conviction of the appellant as an accessory after the fact, but not as a principal or as an accessory before the fact."

However in that case the accused had not been charged with being an accessory after the fact and the appeal really turned upon the rejection of evidence which would have shown the accused’s state of mind when he set out with the principals. I do not consider it authority for the proposition that by assisting in this way, a person becomes an accessory after the fact.

Likewise, in Archbold Pleading Evidence and Practice in Criminal Law (1982) 41 ed at 2074, appears a statement which also should be treated with some caution. It appears in a section dealing with presence in relation to aiders and abettors:

"Where two persons broke open a warehouse, and stole a quantity of butter which they carried along the street for 30 yards, and then fetched the defendant, who being informed of the robbery, assisted in carrying away the property it was held that he was not a principal but only an accessory after the fact: R v King (1832) R & R 332; and see R v McMabin and Smith (1808) R & R 333 n; R v Dyer (1801) 2 East PC 767."

In 1967 the law relating to accessory after the fact was replaced by s 4 of the Criminal Law Act 1967 (Imp):

"Where a person has committed an arrestable offence, any other person who, knowing or believing him to be guilty of the offence or of some other arrestable offence, does without lawful authority or reasonable excuse any act with intent to impede his apprehension or prosecution shall be guilty of an offence."

On its face that appears to me to be a more sophisticated version of the Criminal Code, s 10(1).

Commenting upon this section, the authors of Harris’s Criminal Law 22 ed (1973) at 845 says:

"This offence requires, as did the offence of being an accessory after the fact, that the accused do something active. It is not sufficient that he merely fails to report the offender to the police or arrest the offender ... In order to commit the offence the accused must do the acts with intent to impede his apprehension or prosecution."

Reference is also made to the difficulties which arise when a person handles stolen goods received from a thief who could be but has not yet been apprehended. It could be supposed that he would be guilty under this section or as an accessory after the fact to the theft or of receiving. But this has not been the case as seen in R v Andrews and Craig [1962] 1 WLR 1474. They had been jointly convicted of receiving and on a second count of being an accessory after the fact to receiving. The court commenting on the proper direction to be given to the jury on the second count said (at 1477):

"... a full direction entails telling the jury that they must be satisfied that the defendants did the acts complained of for the purpose of assisting the principal felon to escape apprehension or conviction."

What the accused were doing in this case was going around trying to find buyers for the stolen goods. They could not be found guilty of being an accessory after the fact, if this activity was for their own gain and unrelated to giving assistance to the principal to avoid apprehension. There has to be such a connection before one can be considered an accessory.

R v Pompey (1924) 18 QJPR 59 is closer to home. Five aboriginals were charged with the wilful murder of another. One killed the deceased, three helped bury the deceased and the fourth was present but took no part in the burial. A no case submission was made at the end of the Crown case, one ground being that if a verdict of being accessories after the fact were possible under the indictment, they were not accessories, as there was nothing to show that their actions were done in order to enable the murderer to escape punishment. It was held that there was no evidence against those who buried the deceased or against the one who stood by, as being accessories after the fact as defined in s 10 of the Criminal Code (Qld). That section was in the same terms as the present s 10 in this jurisdiction.

Further in R v Angie-Ogun [1969-70] PNGLR 36, Ollerenshaw J accepted the common law authorities applicability to the Code and, more importantly for present purposes, cited authorities in which an accused did some act in order to enable escape from detection and conviction. That, so it appears to me, is what being an accessory after the fact is all about. I have been referred to the judgment of Pratt J in The State v Amoko-Amoko [1981] PNGLR 373 at 384-386. Whilst that judgment was primarily concerned with accomplices his Honour referred to accessories after the fact in the context of receivers and accomplices and makes reference to one of the State witnesses, (who he later found to be an accomplice) as follows (at 386):

"... In addition to being a receiver, the facts of this case also illustrate that he is an accessory after the fact, because he was clearly assisting in burying the items stolen. One of the purposes would obviously be to prevent detection ..."

I have come to the view that s 10 provides an exclusive definition. It is a simple definition of the pre-existing legal concept of "accessory after the fact".

My intervention necessitating this decision has the result of being a successful demurrer. I will not arraign the accused on the indictment and ask the State if it wishes to amend it.

Note: The indictment was amended to a charge of stealing and the accused was convicted on his plea.

Rules accordingly

________________________________

Lawyer for the State: The Public Prosecutor.
Lawyer for the accused: The Public Solicitor.

[1986] PNGLR 88 - Richard HB Wood v Watking (PNG) Pty Ltd