Understanding Accessory Before and After the Fact: NSW Laws Explained

When someone assists, encourages, or conceals a crime in New South Wales, they may still face criminal liability — even if they didn’t directly commit the offence themselves.

Under NSW law, such individuals can be charged as accessories before or after the fact.

At LY Lawyers, we specialise in defending clients charged with serious and complex offences, including accessory liability. Below, we explain what these charges mean, how they’re prosecuted, and what defences may apply.

What Does “Accessory” Mean in NSW Criminal Law?

In criminal proceedings, a person may be held responsible for another’s actions if they played a supporting or facilitating role. Under Part 9 of the Crimes Act 1900 (NSW), there are several categories of liability:

• Principal offender (first degree): The person who actually commits the offence.
• Principal in the second degree: Someone present during the offence who aids or encourages its commission.
• Accessory before the fact: Someone who assists, counsels, or procures the crime before it occurs but is not present during its commission.
• Accessory after the fact: A person who assists the offender after the offence has been committed to help them evade detection, arrest, or prosecution.

These forms of liability are collectively known as complicity and are treated seriously under NSW law.

Accessory Before the Fact

Legal Framework

Section 346 of the Crimes Act 1900 (NSW) provides that anyone who aids, abets, counsels, or procures the commission of a serious indictable offence (one carrying a penalty of five years or more) can be charged and punished as if they were the principal offender.

Key Elements

To establish guilt as an accessory before the fact, the prosecution must prove that the accused:

1. Intentionally assisted or encouraged the principal offender before the crime took place.
2. Knew the essential facts of the offence that was to be committed.
3. Did not effectively withdraw from participation prior to the offence.

The Judicial Commission of NSW – Complicity and Accessory Liability Bench Book offers authoritative judicial guidance on how courts interpret participation, intent, and knowledge when assessing accessory liability.

Common Examples

• Providing a weapon or vehicle to assist in a robbery.
• Offering detailed instructions or advice for a planned offence.
• Paying or directing another person to commit an unlawful act.

Penalties

Because the law treats an accessory before the fact as if they committed the crime themselves, the maximum penalty mirrors that of the principal offence.

For example:

• Murder: Life imprisonment.
• Aggravated break and enter: Up to 25 years.
• Robbery in company: Up to 20 years.

Accessory After the Fact

Legal Framework

An accessory after the fact is prosecuted under sections 348–350 of the Crimes Act 1900 (NSW). The offence arises where a person assists a principal offender after a crime has been committed, intending to help them escape justice.

Key Elements

To prove this offence, the prosecution must show that:

1. A serious indictable offence was committed by another person.
2. The accused knew that offence had occurred.
3. The accused intentionally assisted the offender to avoid arrest, trial, or punishment.

Examples of Accessory After the Fact Conduct

• Concealing evidence or cleaning up a crime scene.
• Hiding the offender or providing them with transport or shelter.
• Giving false information to police to mislead an investigation.

Maximum Penalties

 

Underlying Offence	Section	Maximum Penalty
Murder	s 349(1)	25 years imprisonment
Armed robbery, robbery in company, kidnapping	s 349(2)	14 years imprisonment
Other serious indictable offences	s 350	5 years imprisonment
Treason	s 348	2 years imprisonment

 

How This Differs from a “Principal in the Second Degree”

While both involve secondary participation, a principal in the second degree is physically present during the crime and assists while it occurs. In contrast, an accessory before or after the fact acts outside the immediate commission of the offence — either beforehand or afterward.

Principals in the second degree are punished identically to the main offender, whereas accessories after the fact face separate, specific penalties.

Related or Alternative Charges

Depending on the facts, prosecutors may instead charge an accused with:

• Perverting the Course of Justice (s 319): Doing any act intended to obstruct or interfere with justice (max 14 years).
• Hindering Investigation (s 315): Intentionally hindering the investigation, apprehension, or prosecution of an offence (max 7 years).
• Concealing a Serious Indictable Offence (s 316): Failing to report information about a serious offence without reasonable excuse.

These offences are often charged where the conduct falls short of “accessory after the fact” but still involves obstructing justice.

Possible Defences

Every case is unique, but common legal defences include:

• Lack of intent: The accused did not knowingly or deliberately assist or encourage the offender.
• No knowledge of the offence: The accused was unaware that a crime had been committed.
• Effective withdrawal: For accessory before the fact, the person withdrew their involvement and took reasonable steps to prevent the crime.
• Duress: The accused acted under threat or coercion.
• Principal offence not proven: The prosecution must establish that the underlying offence actually occurred.

The Judicial Commission – Sentencing Bench Book (Accessory After the Fact to Murder) provides NSW judges with practical guidance on how culpability, motive, and degree of assistance are weighed when sentencing accessories after the fact.

How LY Lawyers Can Help

At LY Lawyers, we understand the complexity of accessory and complicity cases. These matters often involve detailed timelines, digital evidence, and intricate questions of intent and knowledge.

Our legal team can:

• Carefully review the evidence and challenge the prosecution’s interpretation of your role.
• Identify weaknesses in proving intent or knowledge.
• Negotiate with prosecutors to have charges withdrawn or reduced to a lesser offence (e.g., hindering investigation).
• Represent you in all NSW courts with strategic and expert advocacy.

We have defended clients in some of the most serious criminal cases across New South Wales and have an established reputation for achieving charge dismissals, reduced penalties, and favourable outcomes.

Conclusion

Being charged as an accessory before or after the fact is not a minor matter — it carries the potential for lengthy imprisonment, especially when linked to serious offences such as murder or armed robbery.

If you are under investigation or have been charged, it’s essential to act quickly. The earlier you obtain legal advice, the better your chances of protecting your rights and mounting a strong defence.

📞 Contact LY Lawyers today for a free initial consultation and let our experienced criminal defence team guide you through the process with confidence.