DYMOCK -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 213 (15 January 2020)

1. The trial judge summarised the facts and circumstances of the offending in her sentencing remarks.[2]
2. Mr Taylor was aged 42 years when he was killed. He lived with Ms Attwood at a home he owned in Arnos Way, Girrawheen (the Arnos Way property). They had been in a relationship for about eight to nine years. Mr Taylor and Ms Attwood had a young son who lived with them. Mr Edhouse and DG also lived at the Arnos Way property.
3. The appellant was aged 19 years at the time of the offending. He had attended school with Mr Edhouse. The appellant, Mr Edhouse and Ms Attwood were members of a white supremacist group called the 'Aryan Nations'. The appellant had previously lived at the Arnos Way property, but moved to live with his girlfriend, Skye Dunn, in early April 2016.
4. From at least early 2016, Ms Attwood and Mr Edhouse had engaged in a sexual relationship. Some time prior to 22 April 2016, Ms Attwood and Mr Edhouse decided to murder Mr Taylor. Ms Attwood and Mr Edhouse discussed with DG methods of killing Mr Taylor. They offered DG money to assist in Mr Taylor's murder. Her Honour found that the appellant 'was aware that there was talk about killing Mr Taylor but consistent with the jury's verdict he did not join in with the plan'.[3]
5. On 21 April 2016, Mr Taylor returned to the Arnos Way property from the mine site where he worked as a fly in/fly out worker. DG spent the evening at the appellant's apartment in Maylands. Mr Taylor spent the evening at the Arnos Way property with Ms Attwood and Mr Edhouse.
6. At around 8.00 am on 22 April 2016, Ms Attwood and Mr Edhouse left the Arnos Way property, in Ms Attwood's car, to take the young son of Mr Taylor and Ms Attwood to the childcare centre he attended.[4]
7. While Ms Attwood and Mr Edhouse were out, a nurse visited the Arnos Way property to obtain a blood sample from Mr Taylor. Mr Taylor was alive and in good health when the nurse left the Arnos Way property sometime after 8.00 am.[5]
8. After they attended the childcare centre, Ms Attwood and Mr Edhouse collected the appellant and DG from the appellant's apartment. At about 9.30 am, the appellant, Ms Attwood, Mr Edhouse and DG left the appellant's apartment, in Ms Attwood's car, to return to the Arnos Way property.[6]
9. At the trial, evidence, including CCTV footage, established that the offenders arrived at the Arnos Way property in Ms Attwood's car at about 10.00 am and that the offenders departed from the Arnos Way property in Ms Attwood's car at about 10.40 am. The CCTV footage was taken from a camera at a neighbouring property. The State's case was that Mr Taylor was attacked during that period of about 40 minutes.
10. When the offenders arrived at the Arnos Way property at about 10.00 am, Mr Taylor was in bed either asleep or dozing. The offenders spent some time on the back patio. Ms Attwood then had a shower. While Ms Attwood was in the shower, Mr Edhouse and DG went into the master bedroom of the Arnos Way property and attacked Mr Taylor. Each struck him to the head with a hammer. Consistently with the jury's verdict, the trial judge found that the appellant 'was outside whilst the fatal attack occurred and that he did not participate in the attack on the deceased or aid in the murder'.[7]
11. Her Honour found that 'shortly after the fatal assault' the appellant learned that Mr Taylor had been 'fatally injured'.[8] Her Honour found further that the appellant 'learned of the assault on Mr Taylor whilst he was at the Arnos Way house'.[9]
12. Shortly after Mr Taylor was attacked, the appellant changed his top. The offenders put their bloodstained clothing into a bag which was then placed in the back of Ms Attwood's car. Ms Attwood went through the house in an attempt to make it look as though the house had been burgled.
13. At about 10.40 am (being about 40 minutes after they had arrived at the Arnos Way property), the appellant, Ms Attwood, Mr Edhouse and DG drove in Ms Attwood's car to Grand Cinemas in Warwick to watch a movie. The trial judge found that they had attended the cinema in order to establish an alibi for themselves.[10]
14. During the movie, the appellant and DG left the cinema to purchase deodorant from nearby shops in order to cover up the smell of blood and body odour on the offenders.
15. At approximately 12.45 pm, the offenders returned to the appellant's apartment. There, they told Ms Dunn that they had murdered Mr Taylor.
16. The offenders then showered at the appellant's home. The appellant changed his clothes.
17. At about 3.30 pm, Ms Attwood and Mr Edhouse left the appellant's apartment. The appellant walked out of the apartment block with them. Both the appellant and Mr Edhouse could be seen on CCTV footage to be carrying plastic bags, which her Honour found contained incriminating evidence that was never located. The appellant then returned to his apartment without his plastic bag.[11]
18. At about 4.30 pm, Ms Attwood returned alone to the Arnos Way property. When she arrived, Ms Attwood called the 000 emergency number in order to support her false story that Mr Taylor was at home, alive and in good health, when she left for the cinema.
19. Paramedics attended at the Arnos Way property and found Mr Taylor to be deceased. They declared Mr Taylor 'life extinct' at 5.18 pm.
20. Her Honour found, based on a post‑mortem examination, that Mr Taylor 'would have been alive but unconscious for between two to five hours after the infliction of the head injuries'.[12]
21. On 23 April 2016, police interviewed the appellant as a witness. In his statement the appellant said that he had been outside the house at the Arnos Way property, but had entered the house at one point. He said that Mr Taylor was lying in bed and they exchanged greetings. The appellant said that he and the other offenders had spent five to 10 minutes at the Arnos Way property before leaving.
22. On 10 May 2016, the appellant participated in another interview with police in which he made no admissions. He was then charged with Mr Taylor's murder.
23. On 15 June 2016, the appellant participated in a further interview with police which he had instigated. The appellant was told that Ms Dunn had been arrested on suspicion of being an accessory after the fact to Mr Taylor's murder. The interview was suspended.
24. Later on the same day the interview resumed. The appellant admitted that he was at the Arnos Way property on the morning of 22 April 2016. He told the police that he and DG had waited in the backyard of the property for about 20 minutes while Ms Attwood, Mr Edhouse and Mr Taylor were inside. Ms Attwood had played loud music.
25. The appellant maintained that he had nothing to do with Mr Taylor's death. However, the appellant accepted that he had suspicions, at the time, that Mr Taylor was being attacked. He said that he had seen droplets of blood by the back door of the house. He knew that something had happened, but not what had happened.
26. The appellant told the police that he, Ms Attwood, Mr Edhouse and DG had gone to the cinema and then to his apartment, where he, Mr Edhouse and DG had showered.
27. The appellant also told the police that Mr Edhouse and DG had informed him, after Mr Taylor was killed, that they had beaten Mr Taylor to death with a hammer and that Mr Taylor had suffered massive head injuries. The trial judge noted that it was unclear from the record of interview when the appellant became aware of those events. At one point, the appellant said that it was 'in the car on the way home', which her Honour presumed meant after the appellant and the others had been to the cinema.[13]

1. The trial judge made the following comments as to the 'principal acts' which her Honour found the appellant had performed for the purpose of providing assistance to Ms Attwood, Mr Edhouse and DG:[14]

First, he changed the top half of his clothing at the Arnos Way house to dispose of evidence which may have connected him with the murder. Secondly, he accompanied his co-offenders to the cinemas to create and maintain a false alibi. Thirdly, he left the cinemas to go and buy deodorant to cover up the smell of blood and body odour on the murderers. Fourthly, he allowed the murderers to shower and use his home as a refuge after the offence.

Fifthly, he assisted to dispose of incriminating evidence likely to be clothing and possibly other items associated with the murder, such as the towels the offenders had used at his unit.

...

Sixthly, [the appellant] provided a statement to the police and a record of interview wherein he lied to the police about what had happened on 22 April and what he knew about Mr Taylor's death. Finally, [the appellant] generally supplied moral support to the murderers until his interview on 15 June 2016.

1. Her Honour made the following observations as to the appellant's knowledge of Mr Taylor's death:

(a) Shortly after the fatal assault, Ms Attwood and the appellant ascertained that Mr Taylor had been fatally injured.[15]

(b) The appellant learned of the assault on Mr Taylor whilst he was at the Arnos Way property. The events at the house must have informed him that Mr Taylor had been badly assaulted; that the offenders were one or more of Ms Attwood, Mr Edhouse and DG; that the appellant and others present were doing things to enable the offenders to escape punishment; that Mr Taylor was not expected to survive the assault; and that no assistance was being obtained for him.[16]

(c) It may not have been until the appellant was in the car on the way to his apartment that he was told the details of how Mr Taylor had been killed.[17]

The learned sentencing Judge erred in finding that 'the principal acts ... that [the appellant] did to provide assistance to the murder[ers] ... to escape punishment' included:

(a) Changing the top half of his clothing at the Arnos Way house to dispose of evidence which may have connected him with the murder.

(b) Accompanying his co-offenders to the cinemas to create maintain [sic] a false alibi.

(c) Leaving the cinemas to go and buy deodorant to cover up the smell of blood and body odour.

(d) Allowing the murderers to shower and use his home as a refuge after the offence.

(e) Assisting to dispose of incriminating evidence likely to be clothing and possible other items associated with the murder.

Particulars

It was not open to the sentencing Judge to find that the acts referred to in (a) to (e) amounted to assistance, for the purposes of an offence of being an accessory after the fact to murder pursuant to s10(1) of the Criminal Code, because:

1. On the basis of the sentencing Judge's finding that the deceased may have been unconscious but alive for up to 5 hours after the assault, it was not open to find that all of (or at least most of) the acts referred to in (a) to (e) occurred after the offence of murder had been committed.
2. The sentencing Judge did not make any finding that the appellant knew that the offence of murder had been committed when the acts referred to in (a) to (e) occurred, and it was not open to make such a finding.

1. Counsel for the appellant submitted that the trial judge erred in her conclusion that the acts outlined at [37] above (the alleged acts of assistance) were 'acts done to provide assistance, for the purposes of being an accessory after the fact to murder'.
2. The two bases for her Honour's error, as alleged by counsel for the appellant, were reflected in the two particulars to the ground of appeal.

Particular 1: it was not open to her Honour to find that the offence of murder had been committed at the time the alleged acts of assistance were performed

1. As to the first particular, counsel submitted that it was not open to her Honour to find that the alleged acts of assistance amounted to acts done by the appellant as an accessory after the fact to murder unless her Honour was satisfied that those acts were performed after the offence of murder had been committed. Counsel's argument proceeded in the following manner.
2. First, consistent with the elements of s 10(1) of the Code, in order to establish a charge of accessory after the fact to an offence, the prosecution must prove beyond reasonable doubt that, at the time the relevant acts were performed, the offence had been committed.
3. Secondly, consistent with the elements of s 279 of the Code, in order to establish a charge of murder, the prosecution must prove that a person was 'unlawfully killed'. In particular, the prosecution must prove, as an element of murder under s 279, that the victim has in fact died.
4. Thirdly, counsel submitted that based on her Honour's findings as to Mr Taylor's time of death - in particular, that Mr Taylor 'would have been alive but unconscious for between two to five hours after the infliction of the head injuries'[18] - it was reasonably possible that Mr Taylor could still have been alive until about 3.40 pm. This estimate was based on an assumption that the deceased was first assaulted after the time at which her Honour found that the offenders first arrived that day at the Arnos Way property.
5. Counsel submitted that it followed that, until Mr Taylor died, the offence of murder had not been committed, and therefore it was not open to her Honour to find that the alleged acts of assistance amounted to acts of assistance for the purposes of being an accessory after the fact to Mr Taylor's murder.

Particular 2: it was not open to her Honour to find that the appellant knew that the offence of murder had been committed at the time the alleged acts of assistance were performed

1. As to the second particular, counsel submitted that it was not open to the trial judge to find that the alleged acts of assistance were performed by the appellant as an accessory after the fact to murder unless those acts occurred when the appellant had actual knowledge that the offence of murder had been committed.
2. Consistent with the elements of s 10(1) of the Code, counsel argued that in order to establish a charge of accessory after the fact to an offence, the prosecution must prove beyond reasonable doubt that, at the time the relevant acts were performed, the accused had actual knowledge of the relevant facts or acts that established the precise offence in respect of which the accused is alleged to be an accessory.
3. Consistent with the elements of murder under s 279, counsel argued that the requirement of actual knowledge under s 10(1), in a charge of accessory after the fact to murder, requires that an accused have actual knowledge that the deceased had been killed at the time the alleged acts of assistance were performed.
4. Counsel submitted that, in the present case, her Honour did not make any specific findings as to when the appellant obtained the requisite knowledge. Further, counsel submitted that such a finding would not in any event have been possible in light of her Honour's findings as to when Mr Taylor died (see [27] above). As such, it was not open to her Honour to find that the alleged acts of assistance amounted to acts of assistance for the purposes of being an accessory after the fact to Mr Taylor's murder.
5. Despite the two particulars advanced by the appellant, counsel acknowledged at the hearing of the appeal that the appellant's argument as to knowledge was secondary. The determinative point was the appellant's argument that in order to be convicted as an accessory after the fact to murder, the victim must have died before the acts of the accessory become relevant.

1. Counsel for the State submitted that in establishing an offence of accessory after the fact to murder, contrary to s 562(1) read with s 10(1) of the Code, the prosecution does not need to establish that the alleged acts of assistance occurred after the time of death. In particular, counsel submitted that the mental element of 'knowing that another person has committed an offence' does not require 'literal knowledge' or imply that something exists. The mental element of knowledge of the murder is not tied to the time of completion of the offence of murder. Knowledge can be established in circumstances where the deceased has not yet, in fact, died.
2. Counsel argued that the construction favoured by the appellant produced an 'unsatisfactory' outcome in that it resulted in the identical actions of an accused being ascribed different levels of criminal liability based on the 'technical time of death'.
3. Counsel asserted that the element of knowledge in s 562(1) read with s 10(1) is directed to the accused's subjective state of mind. In circumstances where the purpose of s 562(1) read with s 10(1) is to punish those who assist others who commit indictable offences, a construction of 'knowing' which is satisfied by the subjective belief of the accused, as distinct from actual knowledge of facts proven to be in existence, promotes this purpose.

1. The proper approach to the construction of the Code was enunciated by Dixon and Evatt JJ in Brennan v The King:[19]

[The Code is] intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.

See also Kaporonovski v The Queen;[20] Stuart v The Queen.[21]

(a) 'it may be justifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground'; but

(b) 'it should be remembered that the first duty of the interpreter of [the provisions of the Code] is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance' (437).

See also Vallance v The Queen;[22] Boughey v The Queen.[23]

1. The focus of statutory construction is on the text, context and purpose of the provision.
2. In SZTAL v The Minister for Immigration & Border Protection,[24] Kiefel CJ, Nettle and Gordon JJ said:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 ‑ 382 [69] - [71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46 ‑ 47 [47]). Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408). This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

1. Section 10 of the Code, as originally enacted, provided, relevantly:

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 said to become an accessory after the fact to the offence.

1. Section 10, as originally enacted, was relevantly identical to the corresponding provision (namely cl 12) in the original draft Griffith Code.
2. Sir Samuel Griffith expressed the opinion in the original draft Griffith Code that cl 12 reproduced the common law and s 74 of the draft Bill introduced into the House of Commons in 1880 (which was based on a Draft Code of Criminal Law of 1879 prepared by Lord Blackburn, Justice Barry (of Ireland), Justice Lush and Sir James Fitzjames Stephen).
3. Archbold's Pleading and Evidence in Criminal Cases (21st ed, 1893) stated the common law in relation to an accessory after the fact to homicide as follows:

To constitute this offence, it is necessary that the accessory have notice, direct or implied, at the time he assists or comforts the felon, that he had committed a felony. 2 Hawk. c. 29, s. 32. It is also necessary, that the felony be complete at the time the assistance is given; for, if one wound another mortally, and after the wound given, but before death ensues, a person assist or receive the delinquent, this does not make him accessory to the homicide; for until death ensues no murder or manslaughter is committed. 2 Hawk. c. 29, s. 35; 4 Bl. Com. 38 (18).

1. Archbold cited Blackstone, Commentaries on the Laws of England (1838), in support of the proposition that a person will not be an accessory after the fact to homicide unless, relevantly, at the time the person gives the assistance the victim has died [38].
2. According to Williams GL, Criminal Law: The General Part (2nd ed, 1961):

(a) An accessory after the fact is one who assists a felon after his crime, with a view to shielding him from justice (409).

(b) The accessory must know that a felony has been committed (413).

1. At common law, the knowledge of an alleged accessory after the fact must be of the precise felony (for example, murder as distinct from manslaughter) committed by the principal offender. It is not sufficient for the prosecution merely to allege 'an unlawful homicide'. See R v Tevendale;[25] Winning v The Queen.[26]
2. In R v Byrnes,[27] Rothman J held, in the context of the common law, that in order to find an accused person guilty of being an accessory after the fact to murder, the prosecution must prove beyond reasonable doubt that the victim was murdered by the principal offender and that 'after' the alleged murder the accused person assisted the principal offender in order that he escape detection or punishment [10]. His Honour also stated that, in order to be an accessory after the fact to murder, the accused person must have knowledge of the death and that, in the particular case, the death of the deceased was known by the accused person at the time the alleged acts of assistance were done [77].
3. Section 10 of the Code, as originally enacted, was repealed by the Criminal Law Amendment Act 1986 (WA) and a new provision was substituted.
4. The new s 10(1), which remains in force, provides:

A person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence.

1. Section 2 of the Code provides that '[an] act or omission which renders the person doing the act or making the omission liable to punishment is called an offence'.
2. Section 10 does not make an accessory after the fact a party to the offence committed by the principal offender. Rather, s 562(1) of the Code read with s 10 creates a separate and distinct offence, although liability under s 562(1) read with s 10 is ultimately contingent upon the commission of an offence by the principal.
3. Section 562(1) provides:

Any person who becomes an accessory after the fact to an indictable offence (the principal offence) is guilty of a crime.

1. Section 562(2) provides, relevantly, that a person guilty of a crime under s 562(1) is liable - if the principal offence is punishable on indictment with imprisonment for life - to imprisonment for 14 years.
2. In Winning, Murray J observed:

Apart from receiving or assisting an offender and the need to prove that the purpose of doing so included enabling the offender to escape punishment, s 10(1) makes clear that it is necessary to prove the offence which has been committed. The proof of guilt as an accessory after the fact starts from that point and it is right to say that a person does not become an accessory after the fact unless he or she knows what offence has been committed. ...

It is necessary also to prove that the accessory after the fact knows what offence has been committed at the time when he or she receives or assists an offender [12] - [13].

1. Similarly, in Winning, Hasluck J made these comments:

It is commonly accepted that for the liability of an accessory after the fact to arise, it is necessary for the Crown to establish the commission of the principal offence. However, it is not necessary that the principal offender be convicted or be amenable to justice. The requirement is that the offence must have been committed. Moreover, the accessory must have knowledge that the person assisted has committed the offence. The relevant time for assessing the state of mind of the accessory will be at the time the alleged assistance was given [121].

1. Section 10(1), on its proper construction, having regard to s 2 and s 562(1) of the Code, contains four elements. The first element requires that the accused has in fact 'received' or 'assisted' another person; that is, the accused's conduct must be directed towards and involve actually receiving or assisting the other person. The second element requires that the other person 'has committed' an offence. The third element requires that the accused receive or assist the other person 'in order to enable' the other person to escape punishment; that is, the purpose of the accused in receiving or assisting the other person must be to enable the other person to escape punishment (that is, punishment for the offence). See Winning.[28] The fourth element is that, when the receiving or assistance was given, the accused had 'knowledge' that the other person had committed the offence. See Winning.[29]
2. So, an accused will not be guilty as an accessory after the fact to murder unless the State proves:

(a) first, that the accused has in fact 'received' or 'assisted' another person;

(b) secondly, that the other person 'has committed' the offence of murder;

(c) thirdly, that the accused received or assisted the other person 'in order to enable' the other person to escape punishment (that is, punishment for the offence of murder); and

(d) fourthly, that, when the receiving or assistance was given, the accused had 'knowledge' that the other person had committed the offence of murder.

1. As to the requirement that the other person 'has committed' the offence of murder:

(a) By s 270 of the Code, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

(b) By s 268 of the Code, relevantly, it is unlawful to kill any person unless such killing is authorised or justified or excused by law.

(c) Relevantly, by s 279(1)(a) or s 279(1)(b) of the Code, if a person unlawfully kills another person, with the requisite intention, the person is guilty of murder.

1. Another person will not '[have] committed', within s 10(1) of the Code, the offence of murder unless the conduct of the other person, which renders him or her liable to punishment for the offence of murder, has caused the death of the victim.
2. In our opinion, where an accused is an alleged accessory after the fact to murder, the elements of s 10(1) that:

(a) another person 'has committed' the offence of murder;

(b) the accused 'received' or 'assisted' the other person 'in order to enable' the other person to escape punishment for the offence of murder; and

(c) when the receiving or assistance was given, the accused had 'knowledge' that the other person '[had] committed' the offence of murder,

connote, in the context of the elements of the offence of murder, that the accused's conduct, directed towards and involving actually receiving or assisting the other person, occur after the victim has died.

1. Section 562(1) read with s 10(1) creates criminal responsibility where, relevantly, the accused receives or assists the other person in the knowledge that the other person has committed the offence of murder and the accused's purpose in receiving or assisting the other person is to enable the other person to escape punishment for the offence of murder. The other person, referred to in s 10(1), will not have committed the offence of murder unless and until the victim has died.
2. Our opinion that, where an accused is an alleged accessory after the fact to murder, the accused's conduct, directed towards and involving receiving or assisting the other person, must occur after the victim has died is based upon our construction of s 10(1) in the context of all relevant provisions of the Code. Our opinion is consistent with the common law in relation to an accessory after the fact to homicide.
3. We note that in R v Carter and Savage, ex parte Attorney-General,[30] Carter J expressed the following views about s 10 of the Criminal Code (Qld), which was identical to s 10 of the Code as originally enacted, in the context of the criminal responsibility of a person charged as an accessory after the fact to murder:

In order to establish that an accused person is guilty as an accessory after the fact it must be proved:

(a) That the accused received or assisted another in order to enable that other to escape punishment;

(b) That that other has been guilty of an offence; and

(c) That the accused knew that the other had been guilty of an offence.

The phrase 'guilty of an offence' in the context of s. 10 obviously cannot mean 'has been convicted of an offence' because the knowledge of the accused in the definition of the offence of being an accessory must necessarily ante-date the conviction of the principal offender. In my view the phrase should be construed to mean 'has done the acts necessary to constitute an offence'. It is beyond doubt that at the trial of the accessory it is incumbent upon the Crown to establish that the principal offender did the acts necessary to constitute an offence and that with that knowledge the alleged accessory either received or assisted the principal offender in order to enable him to escape punishment (378).

1. In that passage Carter J was, relevantly, construing the phrase 'guilty of an offence'. His Honour concluded that the phrase meant 'has done the acts necessary to constitute the offence'. We do not understand his Honour to have decided that the other person referred to in s 10 of the Queensland Code will be guilty of the offence of murder, for the purposes of s 10, even though the victim has not died when the alleged accessory after the fact receives or assists the other person.
2. We turn to consider the meaning of the word 'knowing' in s 10(1) of the Code. Neither the word 'knowing' nor any cognate forms of the word are defined in the Code.
3. In Winning, Roberts-Smith J expressed the view that an accused will 'know' that another person has committed the offence of murder if the accused has 'actual knowledge or belief' that the other person has unlawfully killed the victim with the requisite intention for murder [244]. His Honour said:

It is apparent from the terms of s 10(1) itself, that knowledge is integral to the offence it creates. The word 'knowing' requires actual knowledge or belief that the principal offender has committed an offence (R v English (1993) 10 WAR 355 at 362). Thus, even though the principal offender may have committed the offence of wilful murder, if on the state of the accused's knowledge or belief of the facts the offence committed would have been murder or manslaughter, then that person could be guilty as an accessory only to an offence of murder or manslaughter [244].

1. The word 'knowing', in the context of the accused 'knowing that another person has committed an offence' within s 10(1), is concerned with the accused's state of mind. The word connotes that the accused is aware that the other person has done the acts or made the omissions constituting the offence. The necessary awareness is an actual belief that the other person has done the relevant acts or made the relevant omissions. An accused will 'know' that the other person has committed an offence, for the purposes of s 10(1), if the accused's actual belief is founded on his or her personal observation or other sensory perception of the other person's relevant acts or omissions. Similarly, an accused will 'know' that the other person has committed an offence, for the purposes of s 10(1), if the accused's actual belief is founded on information he or she has received that the other person has done the relevant acts or made the relevant omissions. The instances we have given as to the circumstances in which an accused will 'know' that the other person has committed an offence, for the purposes of s 10(1), are not exhaustive.
2. A person charged as an accessory after the fact to a particular offence may be convicted of a lesser alternative offence. For example, an accused charged as an accessory after the fact to murder may be convicted as an accessory after the fact to manslaughter, notwithstanding that the principal offender has been convicted of murder. See Carter and Savage (373) (Kelly SPJ), (382) (Carter J); Winning [127] (Hasluck J), [244] (Roberts-Smith J).
3. In the present case, the trial judge found or it was not in dispute at the sentencing hearing that on 22 April 2016:

(a) Mr Edhouse and DG each attacked Mr Taylor with a hammer between about 10 am and about 10.40 am [55], [70], [75]. See also [16] above.

(b) At about 10.40 am the offenders left the Arnos Way property and went to the cinema [75]. See also [16] above.

(c) At about 12.45 pm the offenders left the cinema and went to the appellant's apartment [78].

(d) Ms Dunn was at the appellant's apartment when the offenders returned from the cinema and she was told that they had murdered Mr Taylor [78].

(e) At about 3.30 pm Ms Attwood and Mr Edhouse left the appellant's apartment and the appellant walked out of the apartment block with them [80].

(f) Mr Taylor was alive but unconscious for between two to five hours after he suffered the head injuries [88].

1. It follows from her Honour's findings or the matters that were not in dispute at the sentencing hearing, that Mr Taylor was dead, at the latest, by about 3.40 pm and that Ms Attwood, Mr Edhouse and DG had committed the offence of murder, at the latest, by about that time.
2. The trial judge found that, shortly after the fatal assault, the appellant ascertained that Mr Taylor had been fatally injured [67]; the appellant learned of the assault on Mr Taylor while the appellant was at the Arnos Way property [69]; the events at the Arnos Way property informed the appellant that Mr Taylor had been badly assaulted and that Mr Taylor had been attacked by one or more of Ms Attwood, Mr Edhouse and DG; the appellant knew that he and others present at the Arnos Way property were doing things to enable one or more of Ms Attwood, Mr Edhouse and DG to escape punishment; and the appellant was then aware that Mr Taylor was not expected to survive the assault and that no assistance was being obtained for him [69].
3. Her Honour accepted, however, that it may not have been until the appellant was in Ms Attwood's car, during the journey from the cinema to his apartment, that the appellant was told 'the details of how Mr Taylor had been killed' [72].
4. It follows that, on the trial judge's findings, the appellant had an actual belief, before about 3.40 pm, that Ms Attwood, Mr Edhouse and DG had murdered Mr Taylor. The requirement of 'knowing', within s 10(1), in relation to the offence of murder was satisfied.
5. However, for the reasons outlined at [73] - [79] above, her Honour erred in sentencing the appellant on the basis that he had provided assistance to Ms Attwood, Mr Edhouse and DG to escape punishment before the time (namely about 3.40 pm) when, on the evidence, it was no longer reasonably possible that Mr Taylor was alive.
6. The ground of appeal has been made out.

The result of the appeal and the resentencing of the appellant

1. The trial judge's error was 'material' in that the error was capable of affecting the actual sentence imposed by her Honour. The application for an extension of time within which to appeal should be granted, leave to appeal should be granted, the appeal should be allowed and the sentencing decision of the primary judge should be set aside. This court has the material necessary to resentence the appellant and must exercise the sentencing discretion afresh. See Kentwell v The Queen.[31]
2. On her Honour's findings, the principal acts which the appellant did to provide assistance to Ms Attwood, Mr Edhouse and DG after about 3.40 pm were these:

(a) the appellant lied to the police about what had happened on the day of the victim's death (that is, 22 April 2016) and what he knew about the victim's death [109]; and

(b) the appellant generally supplied moral support to the principal offenders until his interview with the police on 15 June 2016 [109].

1. The trial judge's findings as to the appellant's personal circumstances and antecedents were not challenged in the appeal. They are set out at [181] - [206] of her Honour's sentencing remarks. It is unnecessary to repeat them.
2. The appellant did not challenge the matters outlined by her Honour as being relevant to sentencing, namely:[32]

(a) the nature and extent of the assistance provided by the appellant to the principal offenders;

(b) whether the assistance adversely affected or was likely to adversely affect the ability of law enforcement authorities to identify, apprehend and prosecute the principal offenders;

(c) the appellant's knowledge of the offence committed by the principal offenders;

(d) when and in what circumstances that knowledge was acquired;

(e) the nature of the appellant's relationship with the principal offenders; and

(f) the appellant's motive for providing assistance and whether that assistance was provided wholly or in part for commercial gain.

1. As we have mentioned, the maximum penalty for the offence committed by the appellant is 14 years' imprisonment.
2. There is a paucity of comparable cases. We have had regard to Thomson v The Queen;[33] McCartan v The Queen;[34] and Brown v The State of Western Australia.[35] We have also considered the discussion in Mikulic v The State of Western Australia[36] as to the general approach to be taken in sentencing an accessory after the fact (in that case, an accessory after the fact to an offence against s 6(1) of the Misuse of Drugs Act 1981 (WA)).
3. It is important in resentencing the appellant to bear in mind the parity principle; in particular, the trial judge's sentencing of Ms Dunn for the offence of being an accessory after the fact to murder. Ms Dunn received a 16 month community based order with programme and supervision requirements. Her Honour granted Ms Dunn a spent conviction order. See The State of Western Australia v Dunn.[37] There were very significant differences between the appellant's culpability and personal circumstances, on the one hand, and Ms Dunn's culpability and personal circumstances, on the other. For example, Ms Dunn pleaded guilty at the first reasonable opportunity; she evinced remorse; she was of prior good character; ultimately, she cooperated with the police by giving a full written statement; some of the other offenders threatened Ms Dunn and her family; Ms Dunn attempted to rehabilitate herself; and she gave evidence for the State in accordance with an undertaking she had previously given.
4. Having regard to the maximum penalty, all relevant facts and circumstances and all relevant sentencing considerations, we would resentence the appellant to 4 years' immediate imprisonment. The new sentence is to be taken to have taken effect on 10 May 2016. The appellant remains eligible for parole.

1. For these reasons, we joined with Mitchell JA in making the orders set out at [6] above.

1. The following facts are not controversial in this appeal. At some time between about 10 am and 10.40 am on 22 April 2016, Robert Edhouse and a juvenile offender attacked Alan Taylor as he lay in his bed, hitting him on the head multiple times with a hammer. They intended to kill him. They were knowingly assisted to do so by Mr Taylor's partner, Melony Attwood.
2. Mr Taylor suffered massive head injuries as a result of this assault, which caused his death. However, consistently with forensic evidence led at trial, the trial judge found that Mr Taylor remained alive but unconscious for 2 - 5 hours after the infliction of the head injuries. On that basis, there was a reasonable possibility that Mr Taylor remained alive until about 3.40 pm on 22 April 2016. Paramedics, who attended the scene after Ms Attwood made a 000 call at about 4.30 pm on 22 April 2016, declared life extinct at 5.18 pm.
3. At a joint trial with Mr Edhouse and Ms Attwood, the appellant was acquitted of Mr Taylor's murder, but convicted of being an accessory after the fact to his murder. Mr Edhouse and Ms Attwood were both convicted of murder. The appellant was sentenced on the basis that he was outside the house when the fatal attack occurred, but did not participate in the attack on Mr Taylor, did not aid in the murder and did not know that the assault was going to occur. The appellant was liable as an accessory after the fact to the offence of murder on the basis that he willingly assisted his co-offenders to escape punishment for the murder of Mr Taylor.[38]
4. The trial judge identified seven acts which the appellant did to assist his co-offenders to escape punishment. The first five of those acts consisted of steps taken by the appellant prior to 3.40 pm on

22 April 2016. On the findings referred to at [103] above, there was a reasonable possibility that Mr Taylor was still alive when the appellant did these acts. Only the sixth and seventh acts (lying to police about what had happened on 22 April 2016 and providing moral support to the murderers) clearly occurred after Mr [39]ylor died.39

1. The prosecutor, relevantly with the concurrence of the appellant's trial counsel, identified the acts which constituted the appellant's offending in a manner consistent with the trial judge's findings.[40] However, the appellant now appeals against his sentence, essentially on the ground that the trial judge erred in finding that the first five acts, which were done when Mr Taylor may still have been alive, amounted to assistance constituting the offence. The appellant does not dispute that he was properly convicted of the offence on the basis of the assistance constituted by the sixth and seventh acts.
2. The issue arising in this appeal is whether assistance given by the appellant to his co-offenders, after Mr Taylor was assaulted but before his death, could constitute assistance rendering the appellant liable as an accessory after the fact to the offence of murder.
3. For the reasons explained below, assistance which makes a person liable as an accessory after the fact to the offence of murder must be given after the victim has died. Therefore, the trial judge erred in finding that acts performed by the appellant when Mr Taylor may have still been alive constituted the offence.

1. The common law position appears to have been established as long ago as 1577. The Reports of William Dalison 1552 - 1558, contain the following account of proceedings in the Michaelmas Term of that year:[41]

Note that someone gave another a mortal wound on 1 May, and three other persons, knowing of the said wound, received, comforted and harboured him for two days and no more; on 10 May the man died from the said wound; and it was held and agreed by all the justices in the Kings Bench that the three men were not accessories, for at the time of their receiving there was no felony or murder until he was dead.

1. This agreed position was referred to in Hawkins Pleas of the Crown,[42] and Blackstone's Commentaries on the Laws of England.[43] Citing the latter two texts, the common law position was summarised in the following terms in the 1893 edition of Archbold's Pleading and Evidence in Criminal Cases:[44]

To constitute the offence, it is necessary that the accessory have notice, direct or implied, at the time he assists or comforts the felon, that he had committed a felony. It is also necessary, that the felony be complete at the time the assistance is given; for, if one wound another mortally, and after the wound given, but before death ensues, a person assist or receive the delinquent, this does not make him accessory to the homicide; for until death ensues no murder or manslaughter is committed. (citations omitted)

1. Against this background of the common law, section 10 of the Criminal Code, as originally enacted, provided the following definition of 'accessory after the fact':

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 said to become an accessory after the fact to the offence.

A married woman does not become an accessory after the fact to an offence of which her husband is guilty, by receiving or assisting him in order to enable him to escape punishment; nor by receiving or assisting, in her husband's presence and by his authority, another person who is guilty of an offence in the commission of which her husband has taken part, in order to enable that other person to escape punishment: Nor does a husband become accessory after the fact to an offence of which his wife is guilty by receiving or assisting her in order to enable her to escape punishment.

1. A note to Sir Samuel Griffith's 1897 draft of the Criminal Code refers to the 'common law' and a Bill of 1880. At that time the common law would relevantly be understood to be reflected in the authority and texts referred to above. It appears the current position under the common law of Australia remains the same.[45]
2. The text of s 10 of the Criminal Code, as originally enacted, clearly did reflect the common law so far as it required that the other person must be guilty of the offence, and the accessory must know of the other person's guilt, at the time the accessory receives or assists the other person. That is consistent with the way in which the equivalent provision of the Queensland Criminal Code was construed in R v Carter and Savage; ex parte Attorney-General.[46]
3. Section 5 of the Criminal Law Amendment Act 1986 (WA) repealed the originally enacted version of s 10 of the Criminal Code and substituted the current form of the provision. The purpose of the amendment was described in the following terms in the Minister's second reading speech to the Bill for the 1986 Amendment Act:[47]

It is also proposed to amend the code in respect of accessories after the fact who receive or assist offenders in order to enable them to escape punishment. At present, a married woman cannot become an accessory after the fact if, by her husband's authority, she receives or assists a third person who is a joint offender with her husband. That restriction is inappropriate and clause 10 effects its removal.

1. The focus of the review of the Criminal Code by M Murray QC, the recommendations of which were said to be substantially reflected in the 1986 Amendment Act,[48] was the position of married persons.[49] The purpose of the 1986 amendment does not appear to have been to alter the general elements of liability as an accessory after the fact.
2. The above legal history forms part of the context in which the current provisions of s 10 and 562 of the Criminal Code were enacted. That context is relevant to the construction of the current provisions.[50] However, as this court recognised in L v The State of Western Australia:[51]

In construing any statute it is of fundamental importance to give primacy to the statutory text. That is particularly important in construing a Criminal Code intended to replace the common law. The language of the Criminal Code should be construed according to its natural meaning and without any presumption that it was intended merely to restate the common law. While the common law may be considered, at least in resolving ambiguities or considering language which has acquired a technical meaning, the first duty of a court construing the Criminal Code is to look at the current text. (citations omitted)

1. The position existing under the common law and the previous iteration of s 10 of the Criminal Code is also relevant when considering the State's submissions referred to at [121] below.

1. Under the current s 562 of the Criminal Code, '[a]ny person who becomes an accessory after the fact to an indictable offence (the principal offence) is guilty of a crime'. The maximum penalty for the offence is defined by reference to the maximum penalty for the principal offence.
2. Section 10 of the Criminal Code currently defines 'accessory after the fact' in the following terms:

(1) A person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence.

(2) A person does not become an accessory after the fact to an offence committed by the person's spouse by receiving or assisting that spouse.

1. The ordinary meaning of the language used in s 10(1) is that the alleged accessory must know that the other person 'has committed an offence' at the time he or she receives or assists the other person. There is no separately expressed requirement in the current version of s 10 that the other person must actually have committed the offence.
2. The State submits that the element of knowledge is concerned with the accused's state of mind and not about when death occurred. The State refers to the following observation of Roberts-Smith J in Winning v The Queen:[52]

It is apparent from the terms of s 10(1) itself, that knowledge is integral to the offence it creates. The word 'knowing' requires actual knowledge or belief that the principal offender has committed an offence. (emphasis added)

The State submits that the reference to 'belief' is significant, as 'belief' does not imply that something exists. The State submits that the reference to 'belief' indicates that the mental element is not tied to the time of completion of the offence. The State says that its construction avoids the consequence that an accused's criminal liability will depend on the length of time for which a victim happens to survive after a lethal assault. The State further submits that this consequence would be an unsatisfactory situation based on a technical distinction. It submits that the literal meaning of 'knowing' would produce consequences so unlikely to have been intended as to militate against the adoption of such a meaning. Parliament is unlikely to have intended that the extent of the appellant's liability, from the time he learned that the murder had happened, would depend upon the precise moment of Mr Taylor's death.[53]

1. I do not accept the submissions summarised in the previous paragraph. In particular, I do not accept that the adoption of the ordinary meaning of the word 'knowing' produces results so absurd that the meaning could not have been objectively intended by Parliament. As noted above, the position that a person cannot be an accessory after the fact to the offence of murder before the victim has died reflects the common law and the position under s 10 of the Criminal Code as originally enacted. Prior to the 1986 amendment, a person who mistakenly believed that another had committed an offence and then assisted the other person in order to enable him or her to escape punishment could not be liable if no offence had actually been committed when the assistance was provided.[54] There is nothing to suggest that it was a purpose of the 1986 Amendment Act to alter that long-standing position. Rather, the evident purpose of the 1986 amendment was to remove an exemption for married women which was no longer regarded as appropriate.
2. I agree with Roberts-Smith J that the term 'knowing' in s 10 of the Criminal Code encompasses belief. However, a person who mistakenly believes that an event has occurred will not 'know' that the event has occurred as a matter of ordinary language. In my view, a person who believes that another has committed an offence cannot be said to 'know' that the other person has committed an offence, within the meaning of s 10, unless the other person has actually committed the offence. The State was required to establish that the appellant knew that his co-offenders had committed an offence. He will only have known that they had committed an offence if they had actually done so and the appellant was aware of the essential circumstances constituting the offending.
3. As noted above, s 10(1) does not separately express a requirement that the other person must have committed an offence in order for liability to arise under s 562. However, it remains necessary for the Crown to prove both the principal offence which has been committed and the accused accessory's knowledge of the essential facts which constitute the principal offence.[55] This is on the basis that, in order to show that an accused accessory acted while 'knowing that another person has committed an offence', the State must establish both:

(a) that another person has actually committed the offence; and

(b) an awareness or belief on the part of the accused that the other person has committed the offence,

at the time the accused accessory received or assisted the other person.

1. Having regard to the definition of an 'offence' in s 2 of the Criminal Code, proving that the appellant knew his co-offenders had committed an offence required the State to establish that the appellant knew that his co-offenders had done an act or made an omission that rendered them liable to punishment. A majority of this court recently held that the definition of an 'offence' in s 2 of the Criminal Code denotes the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment.[56]
2. To establish that the appellant was an accessory after the fact to murder, the State therefore had to establish at least that, at the time the appellant provided the relevant assistance:

(1) the co-offenders had killed Mr Taylor - ie caused Mr Taylor's death, directly or indirectly, by any means whatever;[57]

(2) when the co-offenders killed Mr Taylor, they intended to cause his death or cause him an objectively life-threatening injury;[58] and

(3) the appellant was aware, or believed, that the co-offenders had caused Mr Taylor's death with the relevant intention.

In the present case, it is unnecessary to consider whether it was also necessary for the State to establish that the co-offenders had killed Mr Taylor unlawfully, or that the appellant was aware that the killing was unlawful.[59] There was no evidence to suggest that the killing of Mr Taylor was authorised, justified or excused by law,[60] or that the appellant may have believed this to be the case.

1. That is, to constitute the offence of accessory after the fact to the offence of murder, the appellant's assistance must have been given at a time after the co-offenders had caused Mr Taylor's death with the relevant intention, and at a time when the appellant was aware, or believed, that they had done so.
2. The offence of murder was not committed until Mr Taylor died, as it was only then that an essential element of the offence of murder - that the co-offenders killed Mr Taylor (ie caused his death) - could be satisfied. The appellant cannot be said to have provided assistance 'knowing' that his co-offenders had committed the offence of murder, within the meaning of s 10, before the offence of murder was committed.
3. Of course, an accused accessory may be guilty of being an accessory after the fact to a lesser offence than murder (such as intentionally causing grievous bodily harm) when assistance is provided to the principal offender before the victim has died, or before the accused accessory is aware or believes that death has occurred. An offence against s 562 of the Criminal Code will still have been committed, albeit with a lesser maximum penalty. However, to render an accused accessory liable as an accessory after the fact to the offence of murder, the relevant assistance must be given to the principal offender after the victim has died, and the accused is aware or believes that death has occurred.

1. Therefore, before the appellant could be sentenced on the basis that he gave assistance which rendered him liable as an accessory after the fact to the offence of murder, the State had to prove beyond reasonable doubt that Mr Taylor had died before the assistance was given.
2. The trial judge erred in finding that the appellant's offence was, in part, constituted by assistance given at a point in time when, on the evidence and the trial judge's findings of primary fact, there was a reasonable possibility that Mr Taylor was still alive. While the trial judge was led into that error by the common position advanced by trial counsel, the error concerns a question of law which may be raised on appeal notwithstanding that the point was not taken in the primary proceedings.
3. Therefore, the ground of appeal is established, and it is necessary for this court to resentence the appellant.
4. As to resentencing, I agree with Buss P and Mazza JA, for the reasons which their Honours give, that the appellant should be resentenced to a term of 4 years' immediate imprisonment, with eligibility for parole, backdated to 10 May 2016.
5. For the above reasons, I joined in the orders made by the court on 21 August 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] A male juvenile co-offender, DG, pleaded guilty to Mr Taylor's murder. DG was convicted and sentenced, prior to the appellant's trial, in the Children's Court of Western Australia.

[2] The State of Western Australia v Attwood, Dymock & Edhouse [2018] WASCSR 92 (Sentencing Remarks).

[14] Sentencing Remarks [106] - [107], [109].

[19] Brennan v The King [1936] HCA 24; (1936) 55 CLR 253, 263.

[20] Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 236 (Gibbs J; Stephen J agreeing).

[21] Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437 (Gibbs J; Mason J agreeing).

[22] Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56, 74 - 75 (Windeyer J).

[23] Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, 30 - 31 (Brennan J).

[24] SZTAL v The Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].

[25] R v Tevendale [1955] VicLawRp 18; [1955] VLR 95, 96 (Herring CJ), 98 - 99 (Sholl J).

[26] Winning v The Queen [2003] WASCA 245 [121] ‑ [122], [127], [143] ‑ [146] (Hasluck J), [237], [240] ‑ [241], [247] ‑ [248] (Roberts‑Smith J).

[27] R v Byrnes [2019] NSWSC 615.

[29] Winning [13] (Murray J), [121] (Hasluck J).

[30] R v Carter and Savage, ex parte Attorney-General [1990] 2 Qd R 371.

[31] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42] (French CJ, Hayne, Bell & Keane JJ).

[32] Sentencing Remarks [229] - [231].

[33] Thomson v The Queen (Unreported, CCA, SCt of WA, Library No 6502, 31 October 1986).

[34] McCartan v The Queen (Unreported, CCA, SCt of WA, Library No 950008, 13 January 1995).

[35] Brown v The State of Western Australia [2008] WASCA 173.

[36] Mikulic v The State of Western Australia [2009] WASCA 150; (2009) 197 A Crim R 94 [38] (Buss JA; McLure & Miller JJA agreeing).

[37] The State of Western Australia v Dunn [2017] WASCSR 143.

[41] The Reports of William Dalison 1552 - 1558, edited for the Selden Society by Sir John Baker QC (London, Selden Society, 2007) 145 - 146.

[42] Hawkins W, Treatise of the Pleas of the Crown (vol 2, 1724) 320 (page 448 of the 8th edition).

[43] Blackstone W, Commentaries on the Laws of England (Book IV, 1765) 38.

[44] Archbold's Pleading and Evidence in Criminal Cases (21st edition, 1893) 18. The same passage appears in the 22nd edition, published in 1900 at page 19.

[45] See R v Williams (Unreported, NSWSC, Library No 70360 of 1993, 18 November 1994) 4; R v Taylor, Reed & Minogue (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, No 173, 175, 178 and 187 of 1989, 22 June 1989) 93 - 94; R v Byrnes [2019] NSWSC 615 [10].

[46] R v Carter and Savage; ex parte Attorney-General [1990] 2 Qd R 371, 378, 379.

[47] Western Australia, Parliamentary Debates, Legislative Assembly, 30 October 1986, 3878 (Mr Pearce).

[48] Western Australia, Parliamentary Debates, Legislative Assembly, 30 October 1986, 3877 (Mr Pearce).

[49] Murray M, The Criminal Code: A General Review (1983) 11 - 12.

[50] See, for example, the approach taken by the plurality in Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [29] - [41], the observations of Heydon J in Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 [151] and the observations of Brennan J in Boughey v The Queen (1986) 161 CLR 10, 30 - 31 which were adopted by the plurality in R v LK [2010] HCA 17; (2010) 241 CLR 177 [97].

[51] L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [52].

[52] Winning v The Queen [2003] WASCA 245 [244] applying Murray J's construction in R v English (1993) 10 WAR 355, 362 of 'knowing' or 'knowledge' within the context of knowing receipt to the offence of accessory after the fact.

[53] Respondent's Submissions, par 13 - 28.

[54] In addition to the authorities referred to above, see R v Humphreys and Turner [1965] 3 All ER 689, 691.

[55] See Winning, [12] - [13], [121] - [122].

[56] Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [156].

[57] See s 270 and s 279(1) of the Criminal Code.

[58] See s 279(1)(a) and (b) of the Criminal Code.

[59] Cf Birdsall in relation to s 7 and 8 of the Criminal Code.