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Court of Criminal Appeal 10 November 2021

Ah Keni v R

[2021] NSWCCA 263

HomicidePublic order & justice offences
CRIME COMPLICITY ACCESSORY AFTER THE FACT SILENCE

Citation: Ah Keni v R [2021] NSWCCA 263
Court: Court of Criminal Appeal, New South Wales
Date: 10 November 2021
Judge(s): Bathurst CJ; Simpson AJA; Bellew J

Background

The appellant pleaded guilty to being an accessory after the fact to murder under s 347 of the Crimes Act 1900 (NSW), following a daylight shooting in Bankstown City Plaza in January 2018. The principal offender shot the deceased three times at close range outside a café. The appellant, who had no prior knowledge of the murder, drove the shooter and her husband away from the scene immediately afterwards.

Over the following months, the appellant committed a series of active steps to conceal her husband's and the shooter's roles in the murder. These included helping her husband leave the jurisdiction to evade justice. She was charged with having received, harboured, maintained, and assisted the principal offenders between January and May 2018.

At first instance, the sentencing judge sentenced the appellant to 1 year and 6 months' imprisonment, with a balance of term of 1 year and 1 month, commencing 17 June 2020. The appellant sought leave to appeal on multiple grounds, including that the sentencing judge had wrongly treated her failure to go to the police at an early stage as one of the offending acts constituting accessorial liability.

  • Whether a person's failure to report a crime to police can, of itself, constitute an offending act for the purposes of the offence of accessory after the fact to murder
  • Whether silence, when accompanying acts of active assistance, is relevant to the objective seriousness of the offence
  • Whether the sentencing judge erred in other findings, including the objective seriousness of the offence, the finding that the appellant was not caught by surprise, and various subjective factors
  • Whether the sentence was manifestly excessive

Decision

The Court held unanimously that the offence of accessory after the fact requires active steps to assist the principal offenders, and that a mere failure to report an offence to police does not satisfy that requirement. Bathurst CJ traced the offence under s 347 of the Crimes Act 1900 to the common law, confirming that the relevant authorities consistently require some positive act of assistance. Passive silence, standing alone, falls outside the scope of the offence.

The Court clarified two important qualifications. First, silence that has the propensity to mislead an investigator may constitute an offending act, provided the other elements of the offence are established. Second, silence that accompanies acts of active assistance can be taken into account when assessing the objective seriousness of the offence, even if it does not independently constitute a criminal act.

On the specific ground concerning the failure to report, the Court found that the sentencing judge had erred by treating the appellant's silence as an independent offending act. Simpson AJA expressly acknowledged that her own earlier decision in R v Waters [1999] NSWSC 893, which had relied on two unreported Court of Criminal Appeal decisions for a contrary proposition, was wrongly decided on that point.

Because the sentencing judge's error affected the assessment of objective seriousness, the Court granted leave to appeal, quashed the original sentence, and resentenced the appellant. The Court found the offence was somewhat less serious than the sentencing judge had concluded, but otherwise agreed with his Honour's approach, including his assessment of the appellant's subjective circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Appellant resentenced to a non-parole period of 1 year and 3 months' imprisonment commencing 17 June 2020 and expiring 16 September 2021, with a balance of term of 10 months' imprisonment commencing 17 September 2021 and expiring 16 July 2022

Key Takeaways

  • The offence of accessory after the fact requires active steps to assist principal offenders. A bare failure to report a crime to police does not, of itself, satisfy the elements of the offence.
  • Silence may constitute an offending act where it has the propensity to mislead investigators, provided the other elements of the offence are also established.
  • Where silence accompanies acts of active assistance, a sentencing court may take it into account in assessing objective seriousness, even though silence alone cannot found liability.
  • The Court of Criminal Appeal expressly declined to follow R v Waters [1999] NSWSC 893 to the extent it treated a bare failure to report an indictable offence as sufficient to establish accessorial liability.
  • In resentencing, the Court reduced the non-parole period and head sentence to reflect that the offence was somewhat less serious than the sentencing judge had assessed, once the erroneous factor was removed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 347
- Crimes (Public Justice) Amendment Act 1990 (NSW)

Cases
- Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354
- Ewan v R [2020] NSWCCA 85
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Kaminic v R [2014] NSWCCA 116
- R v Ah Keni [2020] NSWSC 1848
- R v Cowen [2008] NSWSC 104
- R v Edwards (1996) 90 A Crim R 510
- R v Farroukh (Court of Criminal Appeal (NSW), 29 March 1996, unreported)
- R v Mai (1992) 26 NSWLR 371
- R v Stanford, Marcus [2016] NSWSC 1174
- R v Tan Do (Court of Criminal Appeal (NSW), 7 May 1997, unreported)
- R v Waters [1999] NSWSC 893 (not followed)
- R v Wirth (1976) 14 SASR 291
- Sykes v Director of Public Prosecutions [1962] AC 528
- The King v Levy [1912] 1 KB 158