Leaman v R [1986] TASSC 80

3 In May 1969, police officers carried out an investigation into the disappearance of G. They interviewed and took statements from Maxwell Leaman and the applicant. Leaman was 30 years old at the time and the applicant 18. Leaman's statement indicated that he had been living with Mrs G since 1959. He was previously married to another woman. Between 1960 and 1965 he and Mrs G had five children. In April 1969, when they were living at [Hobart], he began a relationship with the applicant. At that time he thought the applicant was pregnant to him, and intended to marry her. Later he found out that her expected child was not his. On the night of Friday 23rd May 1969, G left home and did not return and he had not seen her since.

4 The applicant's signed statement refers to a number of the same matters as Leaman's, and continues:-

"[P] ... went into her bedroom. She returned to the door of the lounge and she was wearing slacks, a skivvy and a pink coat. She said, 'I am going', and I have not seen her since. I consider that the last time I saw [P] on Friday night she was upset and tired and she said that she didn't feel well. She did look pale. [P] and I got on together like sisters, and she never expressed any resentment to me about my association with Max. I have heard her and Max arguing the point about his drinking and being unemployed but I have never seen Max hit her or use violence in any way. I have heard him tell her that he didn't love her any more and that she could get out; I think the last time I heard this was two or three days before [P] disappeared. So far as my intentions with Max are concerned - if [P] comes back, Max will want to stay here with her for the kids' sake and I will go home to my parents at Warrane - but I think Max would still continue to see me. If [P] does not come back I want to go on living here with Max as I love him."

5 The applicant continued to live in a de-facto husband and wife relationship with Leaman from that time onwards, and over a period gave birth to two children of which he was the father. She married Leaman in June 1975.

6 On 18th January 1986, police officers were summoned to a house where Leaman and the applicant were living. There, the applicant told them, "I want to tell Des (a detective who was not present) about a murder that my husband committed. I was there. I helped." Later she said to them, "Max murdered his first wife 17 years ago and buried the body at Clifton Beach. I was there", and, "Yes, we did a murder". Later that day, the applicant made and signed a statement in writing, as follows:-

"My full name is Lorraine Gail Leaman and I reside at [Mornington]. I live there with my husband Maxwell Keith Leaman and my three sons. We lived in that house for 15 years. Prior to that we lived in [Sandy Bay] and before that [Hobart]. Prior to living at [there] we resided in Launceston.

I first met Max in January 1969 when he was a taxi driver. I started living with him in April 1969. At that time he was living in a de facto relationship with (G). We lived in Launceston for six weeks and moved back to Hobart ... While we lived at [Hobart] [P] was living there as well. We were only there a short time with [P]. I can't remember the circumstances of how [P] came to be there but we all lived there, I had a room, Max slept with one of the boys and [P] had a room.

On the 14th or 15th of May it was a Friday night, I remember leaving the house and walking down the Street. It was night time. I was walking down the Street and Max and [P] pulled up in a car.

It was a hired car, Max hired it because he didn't have a job. I remember it was white but I don't remember what type of car but it was small. Max and [P] were sitting in the front. The car must have had a bench seat, because we all sat in the front, [P] was in the middle. I can't remember what was said at the time but Max just drove off. I can't remember anything about where we went until we were going up a hill and we were at Clifton Beach. I remember then that [P] said, where are we going or something like that and Max said that one of my relatives lived up where we were going. I can't remember what I thought at the time but I certainly knew that none of my relatives lived up there. The place where we were was a mutton bird rookery. We drove right up to the top of the rookery and Max stopped the car under the pine trees. Max got out of the car and he then got into the back seat and he started to hit [P] in the back of the head with something long and round and it looked like a rolling pin. When he hit her I jumped out of the car. He kept on hitting her in the car. The next thing I remember he was dragging her behind the pine trees, and she said 'What's happening Max what has happened Max' and he said 'You've been in a car accident' and she asked something about the kids and he said they weren't with us. I remember running along behind. Max then threw her in a hole, the hole was already dug. When she went in the hole she was sitting up and he pushed her down and she started to moan and he hit her with the shovel. He only hit her a couple of times and she was still moaning and then he started filling the hole in he just shovelled the dirt in on top of her. After he had put some sand in the hole he took his coat off it was check sports coat, I remember I really liked it. I'm not sure whether he took his trousers off or not. He then filled the hole in, I can't remember what he did with the shovel. I remember that she was wearing a pink mohair coat. I can't remember what happened after that. I recall that he rang the police the same day and he reported [P] missing. I remember that a detective came round and his name was Fenton. I can't remember Max ever saying that he would have to kill [P]. After it all happened we would go down to Clifton about once a month to take the kids for a drive and Max would stop the car and walk off into the bush to where he had buried [P]. Max has never discussed the matter with me since he just won't talk about it, and if I talk to him about it he says that I'm silly and not to worry about, but I can't live with it any more."

7 On 27th January 1986, the applicant made a further statement to the police, which includes the following:-

"Q16 Did you discuss with Max what you would tell the police?

A We discussed it so we could tell the same story.

Q17 Where were you when you discussed it?

A Home, I suppose.

Q18 When did you discuss it?

A Most probably on the way coming home in the car.

Q19 Coming home from where?

A After he killed her, coming home from Clifton.

Q20 Why did you arrange to tell lies to the police?

A Because he killed her.

Q21 Why did you protect him?

A Because I loved him.

Q22 Did you realize by what you were doing you were placing yourself in jeopardy?

A Yes I did.

Q23 Why did you notify Police of what occurred in May, 1969 on 18th January 1986?

A It was in a fit of temper actually, [B] called me a liar."

8 In his record of interview with the police on the same day, Maxwell Leaman, repeating what he had earlier told them orally, made a statement to the effect that he had come home with the appellant, and on opening the door had found his wife's body hanging from a rope in the passage, where she had apparently hanged herself with the rope tied to a piece of timber placed across a manhole opening. He released the body, which fell on the floor. He wanted to ring the police but the appellant persuaded him not to. He believed G was dead and proposed to the appellant that they should get rid of her body. He and the appellant put the body in the back seat of a car they had hired that day and decided to bury it at Clifton Beach. They drove there, stopped, carried the body to a suitable place, dug a hole and buried it. The statement says that the appellant held a torch to assist Leaman while he was digging.

9 At the joint trial, Maxwell Leaman gave evidence on oath, and the applicant made an unsworn statement. In these they repeated in substance what they had earlier told the police. The Crown case against the applicant on the charge of murder alleged aiding and abetting, relying upon what she had admittedly done, and on her statements to the police that, "I was there, I helped", and "We did a murder". It was not a strong case of aiding and abetting murder, and the jury acquitted her of murder, but convicted on the lesser alternative.

10 As part of his directions to the jury, the learned trial judge gave them a memorandum in writing, part of which read:-

In order to convict Larain Gail Leaman of this crime, you must be satisfied beyond reasonable doubt

(a) that Maxwell Keith Leaman murdered [P];

(b) that Larain Gail Leaman, knowing that Maxwell Keith Leaman was guilty of that crime, intentionally assisted him to escape punishment."

11 It appears to me to be clear that when his Honour directed the jury orally on this part of the memorandum, he restricted the issue to be considered as being whether the lies told by the applicant to the police on 28th May 1969 concerning the disappearance of the deceased made her an accessory after the fact. That conclusion is reinforced by what the applicant's counsel said to the jury in his closing address. The crime for which the applicant was convicted therefore, was constituted solely by the false statements she made to the police with the intention of assisting Leaman to escape punishment. The point is crucial to the application for leave to appeal, because the principal ground argued is that the trial judge, in sentencing the applicant to three years' imprisonment, did so upon the basis that her crime was a continuing one, which began when she made the false statement on 28th May 1969, and ended on the day she married Leaman in 1975.

12 The factual basis upon which that submission is based is as follows. During the course of his plea in mitigation, counsel for the applicant submitted that it was a heavy burden for her to have had the task of raising the children of the deceased through a number of years of marriage with Leaman, "... knowing what she knew and knowing that through her silence and through her deception in late May 1969, the person responsible for the death of their mother had escaped the system of justice in this State". The following discussion then occurred between counsel and his Honour:-

"MR BUGG: That's right. So your Honour they are the circumstances. As I've said, there are a number of matters which the Court could conclude with respect (sic) that the defendant or the prisoner has had her own purgatory to some extent for a number of years.

HIS HONOUR: It would be true to say wouldn't it that she was motivated to tell the police because she was losing her man?

MR BUGG: Yes and in addition to that the matrimonial situation had become tenuous to say the least, not only with the prospect of him departing -

HIS HONOUR: Yes but the point is that it might have gone on for ever, if Leaman had not started to assault her and form another association. ....................

MR BUGG: I couldn't dispute that your Honour.

....................."

13 Then, before his Honour actually sentenced the applicant, counsel said this to the learned trial judge:-

"Your Honour, there is just one matter, briefly, which I wish to mention on behalf of my client. You did raise a question, ........ that the prisoner had not mentioned anything about this matter to the authorities until there was some risk to the matrimonial situation in which she was placed. I would ask that your Honour also take into account, of course, the fact that from 1975 she was married and that has some relevance."

His Honour said in reply, "Yes, I've taken that into account."

"Larain Gail Leaman, in some jurisdictions the crime which you have committed is punishable by imprisonment for life. On the other hand, the Criminal Codes in this State and in Queensland and Western Australia provide that a wife who assists her husband to escape punishment is not guilty of any crime. To the extent that those provisions of the Code rest on the presumption that a husband will coerce his wife into assisting him, they are, in my opinion, anachronistic. However, it may be that they also reflect sympathy with the call which a husband's predicament may make on a wife's affection and sense of uxorial duty.

At the time when you first told the lies to the police you were not the wife of Maxwell Keith Leaman, you were his lover. He already had a consort of many years standing. By lying to save him you were able to become his mistress and later his wife and the mother of his children. In a sense therefore, you profited by your crime.

It is true that when the first lie was told you were only 18, but you were not an inexperienced or naive 18. You were pregnant to one man, you were deceiving Leaman as to his paternity of the embryo, and you were seeking to supplant the deceased in Leaman's affections. The lies you told obstructed and frustrated the path of justice and were intended by you to do so. So long as you were prepared to repeat or continue the lie you were continuing to obstruct the course of justice and I find that you were so minded until 1986. I note, however, that your continuing lie ceased to be a crime on your marriage to Leaman. Your decision to expose Leaman was not in any significant sense a matter of conscience. You exposed him primarily because he began to beat you, and to give signs of leaving you for another woman. You committed a serious crime which must be punished and must be seen to be punished. The ultimate exposure of your husband did not occur in circumstances which greatly mitigate your criminal action.

You are sentenced to imprisonment for three years."

15 Counsel for the applicant argued before us that those preliminary discussions, together with his Honour's comments on passing sentence, show that he acted upon the basis that the crime to be punished was a continuing one commencing at the date of the false statement and ending at the date of marriage. Counsel for the Crown, who was also counsel at the trial and when sentence was passed, informed us that he too made that assumption.

16 It was submitted that his Honour was wrong in regarding conduct subsequent to the making of the false statement to the police as constituting the applicant an accessory after the fact. That crime requires, pursuant to s6 of the Criminal Code, that a person engage in conduct which amounts to receiving or assisting another who is to that person's knowledge guilty of a crime, in order to enable the other to escape punishment. "Receiving" and "assisting" are concepts of a positive nature, which ordinarily would require positive conduct. In Sykes v DPP, (1961) 45 Cr App R 230 at p247, [1962] AC 528 at p561, Lord Denning said:-

"The classic definition of an accessory after the fact is when a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon, see 1 Hale PC 618, 4 Black 37. These are all active acts of assistance from which it can be inferred that he assented to the felon going free, ......."

See also Apted v The Queen [1981] Tas R 140 at p143. Also, before a jury may convict a person of being an accessory after the fact, they should be directed clearly and specifically by the trial judge as to what acts or conduct allegedly done by the accused, with the necessary state of mind, are capable of constituting that crime - see, eg, Rex v Jones [1949] 1 KB 194 at 198 (CCA). His Honour in this case gave such directions in relation to the false account given by the applicant to the police, and I think was right to do so. Therefore, the crime for which she was to be sentenced was constituted by those facts and those only - Lovegrove v The Queen [1961] Tas SR 106; The Queen v Reiner (1974) 8 SASR 102; R v Cooksley [1982] Qd R 405.

17 Having regard to the observations made by his Honour when passing sentence, and the accompanying factual material set out above, it is not difficult to understand why counsel on both sides assumed that his Honour intended to pass sentence for a continuing crime, which did not (pursuant to s6(2) of the Criminal Code) cease until the applicant married Leaman; but I am not sure that their assumptions were correct. I think it is more likely that the Judge, having properly directed the jury as to what facts might constitute the crime, did not intend to pass sentence for a crime constituted otherwise, but was referring to the applicant's "continuing lie" as an accompanying relevant fact. I think he was moved to have regard to that by the nature of the plea in mitigation to which I referred earlier, which mentioned the applicant's continuing distress because of having to live with the dreadful knowledge she had, and so on.

18 However, whether that be so or not, his Honour left it open to be inferred that in deciding upon the length of sentence he gave some weight to the fact, as he found it was, that the applicant was "prepared to repeat or continue the lie", and that this was a continuing crime until the date of her marriage. In law, this was a doubtful proposition in my view, even if the applicant had been charged on the basis of any of her conduct subsequent to 1969; and in any event it was no part of the crime of which she had been convicted. I think this is enough to vitiate his Honour's exercise of the sentencing discretion, and this Court is required to set aside the sentence passed, and to make an appropriate consequential order. The proper course I believe is for the Court to exercise its power under s402(4) of the Code, by quashing the sentence and passing another sentence in substitution.

19 Facts which occurred subsequent to the commission of the crime could not make it any worse or affect its inherent nature. However, subsequent conduct or events may constitute mitigatory circumstances or may throw light upon the criminality of the offence, or upon the question whether the offender is deserving of leniency - see, eg R v Hansen (1961) NSWR 929; Reg v Hutchins, 75 WN (NSW) 75. In this case the learned judge was told that the applicant was a naive 18 year old when, according to her story, the deceased was killed. He was justified in observing that the evidence suggested otherwise, in that she was pregnant to another man and was deceiving Leaman as to his paternity of the expected child, and that by agreement with Leaman she told a false story to the police in order to cover up his crime and take advantage of it by supplanting the deceased as his de-facto wife. It is a relevant fact for this Court to consider in exercise of the sentencing discretion that the applicant's agreement with Leaman to cover up the crime was not the product of an ephemeral decision, or one reached on the spur of the moment or soon repented, because she adhered to the agreement with determination for years afterwards.

20 The learned trial judge properly considered, and this Court is entitled to take the same view, that the mitigatory effect of the youth of the applicant, as an 18 year old girl at the time, was to a large extent negated by the factors just mentioned; but nevertheless she was only of that age, and, it can be assumed, was in love with Leaman, and was strongly under his influence. In all the circumstances, a sentence of two and a half years' imprisonment would in my opinion be appropriate, and should be substituted for the previous sentence imposed.

21 The applicant seeks leave to appeal against a sentence of three years' imprisonment imposed upon her following conviction for becoming an accessory after the fact to murder. She and Maxwell Leaman, who has been her husband since 1975, were charged with the murder of his de facto spouse in 1969 when the applicant was a young woman of 18 and had become involved in an liaison with the co-accused who was then aged about 30.

22 The body of the deceased was not discovered until January 1986 when, as the result of information given to the police by the applicant, skeletal remains were found in a mutton bird rookery at Clifton Beach. In various written statements to the police at about that time and in an unsworn statement on her trial the applicant claimed that the co-accused, the deceased and she had travelled to Clifton Beach one evening in May 1969 in a hired car and that the co-accused had there attacked the deceased and buried her while she was still alive. Evidence from a pathologist confirmed the presence of a number of fractures on the skeleton and other indications of trauma consistent with the applicant's admissions. She claimed in her unsworn statement that while the co-accused was perpetrating the crime she was frightened and did nothing either to stop him or to assist him. On the way back to the home in New Town where all three were then residing, together with a number of children of the deceased and co-accused, Maxwell Leaman suggested making a false report to the police to the effect that the deceased had left the home of her own accord and had not been seen since. The applicant claimed in a statement that she "went along" with the disappearance story because she was "worried about her parents and what they would think" and because she loved the co-accused. A few days later each of them made a written statement to the police that the deceased had left the house at about 11.00pm on the night she in fact died and had not been seen since. Each statement contained an acknowledgement of the sexual relationship existing between them and it was implicit in each that the deceased was aware of it and that this was her reason for leaving.

23 The applicant, after the alleged "disappearance" of the deceased, continued to live with the co-accused, had children by him, cared for his children by the deceased and in 1975, when he was divorced from his lawful wife from whom he had long been estranged, married him. In early 1986 her revelation of the whereabouts of the body and her allegations of the manner in which the deceased had met her death were prompted not by any sense of remorse but came about in consequence of a deterioration in the relationship between herself and the co-accused.

24 The learned trial judge's comments on passing sentence were as follows:-

"Larain Gail Leaman, in some jurisdictions the crime which you have committed is punishable by imprisonment for life. On the other hand, the Criminal Codes in this State and in Queensland and Western Australia provide that a wife who assists her husband to escape punishment is not guilty of any crime. To the extent that those provisions of the Code rest on the presumption that a husband will coerce his wife into assisting him, they are, in my opinion, anachronistic. However, it may be that they also reflect the sympathy with the call which a husband's predicament may make on a wife's affection and sense of uxorial duty.

At the time when you first told the lies to the police you were not the wife of Maxwell Keith Leaman, you were his lover. He already had a consort of many years standing. By lying to save him you were able to become his mistress and later his wife and the mother of his children. In a sense therefore, you profited by your crime.

It is true that when the first lie was told you were only 18, but you were not an inexperienced or naive 18. You were pregnant to one man, you were deceiving Leaman as to his paternity of the embryo, and you were seeking to supplant the deceased in Leaman's affections. The lies you told obstructed and frustrated the path of justice and were intended by you to do so. So long as you were prepared to repeat or continue the lie you were continuing to obstruct the course of justice and I find that you were so minded until 1986. I note, however, that your continuing lie ceased to be a crime on your marriage to Leaman. Your decision to expose Leaman was not in any significant sense a matter of conscience. You exposed him primarily because he began to beat you, and to give signs of leaving you for another woman. You committed a serious crime which must be punished and must be seen to be punished. The ultimate exposure of your husband did not occur in circumstances which greatly mitigate your criminal action.

You are sentenced to imprisonment for three years."

"1 The Learned Trial Judge erred in law in imposing a sentence which was manifestly excessive.

2 The Learned Trial Judge failed to give any or any sufficient weight to the circumstances in which the crime was committed and in particular to the circumstance that the statement made by the Applicant to the police on the 28th day of May 1969, (P2) was made in the presence and hearing of Maxwell Leaman.

3 The Learned Trial Judge erred in law in that he sentenced the Applicant on the basis of a continuing course of conduct on her part from the date of the commission by her of the crime of being an Accessory after the Fact to murder on the 24th day of May 1969 until the date of the Applicant's marriage to Maxwell Leaman in 1975.

4 The Learned Trial Judge erred in law in holding that the crime of Accessory after the Fact to murder continued to be committed by the Applicant at the time subsequent to on or about the 4th June 1969.

5 That the Learned Trial Judge erred in law in that he was unduly influenced in imposing a penalty upon the Applicant by the fact that in jurisdictions other than the State of Tasmania the crime of Accessory after the Fact to murder is punishable by imprisonment for life.

6 The Learned Trial Judge erred in law in that he attached any or undue weight to the fact that the crime in respect of which the Applicant became an Accessory after the Fact was the crime of murder rather than a less serious crime."

26 It is convenient to deal with them in different order.

27 Section 6 of the Criminal Code reads as follows:-

"6 - (1) A person who receives or assists another who is, to his knowledge, guilty of a crime, in order to enable him to escape punishment, is said to become an accessory after the fact to such crime.

(2) A married woman does not become an accessory after the fact to a crime 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 a crime 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 a crime of which his wife is guilty by receiving or assisting her in order to enable her to escape punishment."

28 Section 161 creates the offence of which the applicant was convicted (the alternative verdict being available to the jury by virtue of s340):-

"161 - Any person who becomes accessory after the fact to murder is guilty of a crime.

29 To become an accessory after the fact to any crime requires some conduct whereby the principal offender is received or assisted, knowledge of his guilt by the accessory and an intention on the latter's part that the conduct in question should have the effect of enabling the principal offender to escape punishment. The learned editor of Russell on Crime, 12th edn, at p163 says that:-

"Any assistance given to one known to be a (felon), in order to hinder his being apprehended or tried, or suffering the punishment to which he is condemned seems to be a sufficient receipt to make a man an accessory after the fact."

(See also Stephen's Commentaries, vol 4, chap 3, cited by Lord Alverstone CJ in The King v Levy [1912] 1 KB 158 at 161).

30 In Sykes v The Director of Public Prosecutions (1962) AC 528 at 561, Lord Denning said:-

"The classic definition of an accessory after the fact is when a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon, see 1 Hale PC 618, 4 Black 37. These are all active acts of assistance from which it can be inferred that he assented to the felon going free, in contrast to misprision which consists of concealment only, from which no inference of assent need be drawn."

(See also Apted v The Queen [1981] Tas R 140 at 143 per Neasey J).

31 Unlike many crimes which consist of the commission of a single act and in respect of which the repetition of a like act involves the commission of yet another crime, the crime of becoming an accessory after the fact to any given crime is capable of being a continuing crime (cf trafficking in a prohibited substance - Kannan v The Queen, CCA, 72/1977). Further acts of assistance add to the gravity of the initial crime, although not involving the commission of a separate like crime.

32 In the present case the learned trial judge, in the course of his summing up, gave a written memorandum to the jury which included the following statement in respect of the alternative verdict in fact found:-

"Accessory after the fact to murder

In order to convict Larain Gail Leaman of this crime you must be satisfied beyond reasonable doubt

a) that Maxwell Keith Leaman murdered [P] Spong;

b) that Larain Gail Leaman, knowing that Maxwell Keith Leaman was guilty of that crime, intentionally assisted him to escape punishment."

In his oral charge he dealt with that possibility in these terms:-

"It would seem, it is a matter entirely for you, but Mr Bugg didn't argue strenuously that she was not an accessory after the fact, and it seemed to me that she would have to be if she knew that he had committed a murder, and she now says she did, and she told that false story to the police. That, it seems to me, must have been for the purpose of enabling him to escape punishment for the murder. If that was so, she'd be guilty as an accessory after the fact."

33 In his comments on passing sentence his Honour appears to have taken the view that the applicant had continued to engage in acts of assistance to the co-accused by what he described as her continuing lie. There was no evidence of any explicit repetition of the lie and, although the fact of her living with the co-accused might have been interpreted as a false representation by conduct of a belief in his innocence of wrongdoing, that conduct could not in my respectful view amount to the kind of active assistance essential to constitute one an accessory after the fact. Furthermore, even if this was so, the jury had not been invited to return a verdict on any basis other than of her active deception of the police in 1969. Even if she had repeated the lie after that initial period, it might be difficult to infer that she did so in order that the co-accused should escape punishment. By that time her own self preservation might well have become the sole motive for any further lie. Although the co-existence of such a motive with a desire to assist the principal is immaterial (R v Tevendale [1955] VicLawRp 18; [1955] VLR 95), the latter intention is essential to constitute such conduct a particular of the crime.

34 It is difficult to escape the conclusion that the learned trial judge treated the crime as one which continued until 1975 when her status as his wife prevented any further assistance to escape punishment she might give the co-accused from being treated as a further particular of the crime. In doing so it is my respectful opinion that he proceeded on an erroneous basis. It is accordingly necessary for this Court to impose sentence, but in determining what is an appropriate sentence it is a useful exercise to consider the matters raised in some of the other grounds of appeal.

35 In my view the learned trial judge was perfectly entitled, in his preamble to sentence, to observe that in some jurisdictions the offence in question was punishable by life imprisonment. In this State it is punishable, as are most crimes, by imprisonment for 21 years. That does not mean, as Burbury CJ pointed out in Lovegrove v The Queen [1961] Tas SR 106 that "because the Code itself does not differentiate between crimes so far as punishment is concerned the court does not put crimes into different categories of gravity". The fact that his Honour imposed a sentence of three years' imprisonment involves a recognition that there are, apart from murder itself with its mandatory penalty, other crimes of much greater gravity. In my view his Honour was merely drawing attention to the undoubted seriousness of the crime with which he had to deal.

36 Although the same maximum punishment is provided for the crime of becoming an accessory after the fact to murder, as for the crime of becoming an accessory after the fact to any other crime, there is in my view strong justification for imposing a more severe sentence upon the former than upon some at least of the latter. Common sense indicates that the obstruction of the community's right to protect itself from the serious crime of murder by the apprehension and punishment of murderers is intrinsically a more serious threat to the public good than a similar frustration of its efforts to protect itself from shoplifting or other forms of petty crime. The South Australian cases cited to us of The Queen v White (1977) 16 SASR 571 and The Queen v Mills (1977) 16 SASR 581 depend, in my view, on the statutory provisions applicable in that State and do not have any relevance to the question before us.

37 The circumstances in which the applicant's crime was committed were very serious. She chose, because she loved the co-accused and wanted to live with him and protect him from apprehension, to take active steps to deceive the police about the disappearance of the deceased. On her own admissions the woman whom she supplanted had been to her knowledge (for it had been done in her presence) murdered in a callous and horrifying way, leaving behind young and still dependant children. In an artful way she composed an untrue statement in which jealousy might readily be inferred as the reason for the deceased's disappearance, but in which the applicant claimed nonetheless that she and the deceased had a sisterly relationship and that the deceased had never expressed any resentment to her about her association with the co-accused. It is true that when she told lies to the police in 1969 the co-accused had been present, but there was no suggestion of any coercion by him and there was no reason to suppose that had he not been present she would have refrained from making the false statements she did make.

38 When all the circumstances are considered, far from being persuaded that the sentence was manifestly excessive, I am satisfied that it was well within the appropriate range. Though the applicant was only 18 years of age at the time she lied to the police she was not, for the reasons advanced by his Honour, an inexperienced or naive 18 year old. The lies had the consequence that for 17 years the crime she said the co-accused had committed remained undetected and the administration of justice was for that long period of time obstructed. I agree with his Honour's observation that her exposure of the co-accused was not a matter of conscience on her part, but was due to the fact that the co-accused began to beat her and to give signs of leaving her for another woman. There was a clear requirement that her serious crime should be punished and should be seen to be punished. As the other members of the court consider that a sentence of 2½ years' imprisonment meets the justice of the case and I regard that as also within the appropriate range I assent to the substitution of that sentence for that imposed by the learned trial judge.

39 The appellant and her husband were jointly indicted for the murder, seventeen years ago, of the husband's then de facto wife. The husband was found guilty and sentenced to life imprisonment. The appellant was acquitted of murder but convicted of being an accessory after the fact of murder. She was sentenced to three years' imprisonment and by this appeal, seeks an order quashing that sentence and the substitution of some lesser sentence.

40 The case against the appellant was that she first met the co-accused who was later to become her husband, when she was aged 18. At that time the co-accused, aged 30, had been living with the deceased for about 10 years. Of that union five children were born. When the appellant and the co-accused entered into a sexual relationship the appellant was pregnant to another man. She did not disclose this to the co-accused. Very shortly after they first met, the co-accused left the deceased and for a brief period lived with the appellant in Launceston. Approximately four days before the death of the deceased the co-accused brought the appellant back to his house in Hobart to live with himself, his de facto wife and their children.

41 According to the appellant's unsworn statement and her out of court statements to the police, the deceased met her death on the 23rd May, 1969. The appellant said that on that evening she had had an argument with the deceased and walked out of the house. Shortly after, whilst walking down the street, she was picked up by the co-accused who was driving a car he had hired earlier that day. Also travelling in the car was the co-accused's de facto wife. All three travelled to Clifton Bluff. On arrival the co-accused got out of the car.

"He didn't say anything, he opened the back door and hit [P] with something. It was that quick. Nothing was said. I got out of the car as soon as Max hit [P]. I was sitting close to her Max took [P] to a spot some way from the car. I knew he was going to kill her. I didn't stop him, I didn't know what to do ...... I did not help and I can't explain but I didn't run away or tell him to stop even though I didn't want him to kill her. I was afraid and just didn't know what to do."

42 In her unsworn statement the appellant went on to say that, on the way home, the co-accused started to talk about reporting the matter to the police and what would have to be said.

43 Not long after returning home the co-accused reported to the police that his de facto wife had disappeared and four days after her death, the appellant and the co-accused made statements to police officers concerning her disappearance. Those statements were in similar terms. The appellant recounted how the deceased, together with herself and the co-accused, watched television until a little after 11.pm. She said there had been some minor arguments between the co-accused and the deceased and that after the conclusion of a programme on the television the deceased said "I've had enough of this", left the room but returned shortly afterwards saying "I'm going" and she had not been seen since.

44 The appellant and the co-accused married on the 27th June, 1975. The disappearance of the deceased remained a mystery until January, 1986 when the appellant, believing that her husband was about to leave her for another woman went to the police and told them about the murder. The body was discovered and forensic evidence corroborated the version that the deceased had met a violent death. The co-accused was interviewed and made a statement which was shown to and commented on by the appellant. He told the police and later repeated in evidence at his trial, that on the 23rd May, 1969 he had been out with the appellant and returned home to find the deceased had committed suicide. He said she had hung herself by means of a rope and a piece of wood jammed in a manhole in a ceiling in the house. He said that he got the body down and put it in the car and together with the appellant, drove to Clifton Bluff where he buried it. He denied committing any crime at all. He agreed that he had falsely reported the deceased as a missing person and like the appellant, had made a false statement to the police in connection with that report. The co-accused offered an explanation for his actions which it is unnecessary to consider for the purpose of this appeal.

45 On the question of the alternative verdict against the appellant of being an accessory after the fact the learned trial judge gave the jury a written memorandum. In it, the learned trial judge instructed the jury that they had to be satisfied beyond reasonable doubt that the co-accused murdered the deceased and that the appellant, with that knowledge, "intentionally assisted him to escape punishment". In his oral directions he only referred briefly to, "covering up the death by co-operating with him in a false story" and a little later in summing up, "she told that false story to the police, that, it seems to me, must have been for the purpose of enabling him to escape punishment for the murder. If that was so, she'd be guilty as an accessory after the fact."

46 In his comments on passing sentence the learned trial judge appears to have approached the matter by treating the crime as one that continued from the time the lie was first told until the appellant married the co-accused thereby acquiring the immunity given a spouse by the provisions of s6(2) of the Criminal Code. He said:

"At the time when you first told the lies to the police you were not the wife of Maxwell Keith Leaman, you were his lover. He already had a consort of many years standing. By lying to save him you were able to become his mistress and later his wife and the mother of his children. In a sense therefore, you profited by your crime.

It is true that when the first lie was told you were only 18, but you were not an inexperienced or naive 18. You were pregnant to one man, you were deceiving Leaman as to his paternity of the embryo and you were seeking to supplant the deceased in Leaman's affections. The lies you told obstructed and frustrated the path of justice and were intended by you to do so. So long as you were prepared to repeat or continue the lie you were continuing to obstruct the course of justice and I find that you were so minded until 1986. I note, however, that your continuing lie ceased to be a crime on your marriage to Leaman."

"The learned trial judge erred in law in that he sentenced the applicant on the basis of a continuing course of conduct on her part from the date of the commission by her of the crime of being an accessory after the fact to murder on the 24th May, 1969 (sic) until the date of the applicant's marriage to Maxwell Leaman in 1975."

47 In support of this ground, learned counsel for the appellant argued that, although the appellant and the co-accused lived together for 17 years and throughout that period the appellant kept silent about the commission of the crime, the only act which made her an accessory after the fact was making a false statement to the police concerning the disappearance of the deceased. He submitted that her failure to disclose the commission of the crime amounted to the common law offence of misprision; an offence not known to the Criminal Code (Tas). See Sykes v DPP [1961] 3 All ER 33; R v Crimmons [1959] VicRp 46; [1959] VR 270; R v Stone [1981] VicRp 70; [1981] VR 737.

"A person who receives or assists another who is, to his knowledge, guilty of a crime, in order to enable him to escape punishment, is said to become an accessory after the fact to such crime".

49 An accessory after the fact is commonly identified with an accessory before the fact, but the former, unlike the latter, is not implicated in another's crime even though his liability is contingent upon the commission of a crime by another. Becoming an accessory after the fact constitutes the commission of a separate crime (ss161 and 300 of the Code), quite different from the principal's crime which grounded the accessory's liability.

50 In "The law of Criminal Complicity", Gillies refers to the statutory provisions in Queensland, West Australia and Tasmania and says at p280:

"These statutory provisions in each of the three Code States are formulated in convention of common law terms in respect both of actus reus and mens rea so that they may be able to be viewed as importing the common law doctrine. If this is so, the common law authorities are of direct relevance to their construction. There has been little judicial construction of the Codes themselves."

51 Describing an accessory after the fact, Blackstone wrote in his "Laws of England" vol 4 at p37:

"An accessory after the fact may be, where a person knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed. In the next place, he must receive, relieve, comfort or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried or suffering punishment, makes the assister an accessory".

52 In Sykes v DPP (supra), the House of Lords held that despite disuse, the common law misdemeanour of misprision of felony still existed. Lord Denning at p40 referred with approval to Blackstone's description of an accessory after the fact and noted that it referred to "all active (his emphasis) acts of assistance" and contrasted it with imprision which consists of concealment only.

53 In R v Ready & Manning [1942] VicLawRp 20; [1942] VLR 85 the Full Court of Victoria took the same view and held that to become an accessory after the fact there must be some act which receives, relieves, comforts or assists the principal offender. "Merely suffering the principal to escape will not make the party an accessory after the fact for it amounts at most but to a mere omission ..." (p92); see R v Levy [1912] 1 KBD 158; R v Jones [1948] 2 All ER 964; R v Rose (1961) 46 Cr App R103; R v Lucroft (1966) 50 Cr App R 296.

54 R v Dumont (1921) 64 DLR 128 was a case concerning a woman who was present when her lover murdered her husband. At the inquest and at the preliminary inquiry she did not reveal what she later swore to in an obvious attempt to shield her lover. The Court of Appeal held that in the circumstances her passive acquiescence did not make her an aider or better and said at p135:

"She did nothing after the offence was committed to make her an accessory after the fact. She did nothing to receive, comfort, or assist the prisoner; her failure to disclose the offence did not make her an accessory after the fact: 1 Hale PC 618; R v Smith (1876), 38 UCR 218."

55 Some doubt as to the correctness of this decision was expressed in R v French (1977) 37 CCC (2d) 201 when The Court of Appeal (Ontario) referred to the provisions of s23(1) of the Canadian Criminal Code which is couched in terms very similar to s23(1) of the Code (Tas). The court held that on the trial of the principal for murder, a witness who made a false statement to the police following the commission of the crime could be found by the jury to be an accessory after the fact if the statement was made for the purpose of enabling the principal to escape. R v Levy (supra) was cited with approval.

56 In Young v R (1950) 98 CC 195, Barclay J also referred to R v Levy and with respect to the question of active assistance and said:

"From other cases one gathers that anything done which goes beyond a mere omission to aid in the apprehension of the offender is sufficient, as, eg R v Smith (1876), 38 UCQB 218."

57 In the present case evidence was given and not contradicted, that the co-accused would not talk to the appellant about the murder. One of the children of the deceased said that after she had been told her mother had disappeared the matter was not discussed. Although the appellant and the co-accused lived together as man and wife for 17 years there was no evidence of any act by the appellant other than the making of the initial false story to the police which could be said to have been done to enable the co-accused to escape arrest. Her continuing silence until 1986 amounted to concealment by omission which in view of authorities referred to does not make her an accessory after the fact.

58 Accordingly, the learned trial judge fell into error when he expressed the view that her "continuing lie ceased to be a crime on (her) marriage to Leaman." The commission of the crime constituted by ss6(1) and 162 of the Criminal Code, was complete at the conclusion of her false statement to the police in 1969 and there was no evidence of any other subsequent act which could be said to have been done to enable the co-accused to escape punishment.

59 Ground 4 of the notice of appeal is the same as ground 3 but expressed in different terms, and the remaining 4 grounds all amount to the proposition that in the circumstances, the sentence was excessive.

60 Although only 18 at the time of the commission of the crime, the observations of the learned trial judge about the experience and maturity of the appellant and the manner in which she profited from her crime were entirely apposite. However, as the appellant's crime did not continue after she had made the false statement to the police her subsequent conduct is only relevant to the question of mitigation. The failure to correct the lie she told until 17 years after the event and only then, because she believed her husband was about to leave her for another woman, shows that there is nothing in her conduct after the commission of the crime to mitigate its seriousness.

61 It was a very serious crime. It assisted the principal offender to escape punishment for the crime of murder. In the circumstances of the death of the deceased as told by the appellant, she was only witness to that crime. Apart from accidental discovery of the body, the false account given by her to the police would, to her knowledge, be likely to result in the principal offender permanently evading justice.

62 Learned counsel for the appellant argued that the nature of the principal's crime was an irrelevant consideration when imposing sentence. He submitted that with respect to the offence the only relevant matter was the nature and the extent of the assistance given. I reject this proposition. The cases referred to in support of the argument were decided in a jurisdiction in which legislation fixed a relatively low penalty for the crime of being an accessory after the fact. The Code draws no distinction with respect to penalty between the commission of that crime and the commission of any other crime to which s389(3) applies.

63 Taking into account the matters I have referred to but not taking into account the appellant's conduct after 1969 I am of the view that an appropriate sentence is two years' and six months imprisonment. I would give leave to appeal, allow the appeal and quash the sentence. In substitution of the sentence of three years' imprisonment I would impose a sentence of two years' and six months imprisonment.