Am I Guilty if I Wasn’t Directly Involved in a Crime?

If your friend carries out a bank robbery and you’re 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 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.

Accessories to Crimes

The phrase ‘accessory to a crime’ is one that we hear often 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:

1. Accessories before the fact;
2. Accessories after the fact; and
3. Accessories at the fact, also known as acting in concert or acting with a common purpose.

Technically, you can only be charged as a criminal accessory where the crime is a ‘serious indictable offence,’ in other words, a criminal offence that carries a maximum penalty of five years imprisonment or more.

However, section 351 of the Crimes Act makes it an offence to aid, abet, counsel or procure a summary offence – in other words, one that is finalised in the Local Court before a magistrate. Those found guilty of this offence may be subject to the same maximum penalties as the principal offender, who is the person that physically committed the crime.

Accessories Before the Fact

An accessory before the fact is someone who intentionally assisted the principal offender in some material way prior to the offence. For example, they may have advised them how to commit the crime or helped them prepare for the offence.

However, a person will not be an accessory before the fact simply because they knew that another person was about to commit a crime – even if they approved of their conduct.

Before a person can be deemed to be an accessory before the fact the prosecution must prove that they ‘knew all the essential facts or circumstances which would make what was later done a crime.’

They will be liable to the same maximum penalty as the principal offender – and can be convicted as an accessory even before the principal offender has been found guilty of the offence in question.

Accessories After the Fact

Accessories after the fact are people who were not directly involved in the commission of the offence, but who intentionally rendered assistance to the principal offender or another accessory after the offence.

For example, they may have helped them escape after committing the offence, or may have assisted in hiding evidence of their criminal activity.

For someone to be convicted as an accessory after the fact, the prosecution must prove that they actually knew that the principal offender had committed the offence in question.

This means that a person who simply gives their friend a lift after they had committed a criminal offence, but who did not know that an offence had been committed, will not be an accessory after the fact.

However, there is an important distinction between accessories before and after the fact. While accessories before the fact will be liable to the same maximum penalty if convicted, accessories after the fact will generally only face a maximum penalty of five years imprisonment.

There are, however, certain exceptions. Accessories after the fact to murder face a maximum penalty of 25 years imprisonment, while accessories after the fact to armed robbery, robbery in company or kidnapping face a maximum penalty of 14 years imprisonment. Those convicted of treason also face a lower maximum penalty of 2 years imprisonment.

Accessories at the Fact – Acting in Concert / Common Purpose

These principles essentially state that a person can be liable for the same crime as the principal offender if they entered an agreement to commit a particular offence and participated in some part of it.

Importantly, the law says that an agreement to commit a crime does not have to be verbal or explicit, and that such an agreement ‘may be inferred from all the facts and circumstances surrounding the commission of the offence.’

To see how this would work, imagine a scenario involving two co-accused – person A (the principal offender) and person B, his friend (who is alleged to have acted assisted).

If person A goes to a house with the intention to commit a break and enter, and B tags along knowing that a break and enter is to occur, B could be convicted of the offence even if he just waited outside as a lookout.

The jury simply has to be satisfied that the two people came to some understanding or agreement through their actions to break, enter and steal.

These situations carry heavy penalties, so you should always avoid being pressured into conduct that may amount to an offence.