canada
The potential offence: being an accessory after the fact to murder
See section 23 of the Criminal Code:
An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
This is an independent offence and does not make the person a "party" to the predicate offence. Someone who is an accessory after the fact to the offence of murder may receive a sentence of up to fourteen years. See s. 463:
every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to be sentenced to imprisonment for life is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years
The elements of the offence
To be an accessory after the fact requires that the accused accessory:
- know that the person they're assisting was a party to an offence, AND
- offer such assistance "for the purpose of enabling that person to escape."
It is not enough for the prosecution to prove that the accused accessory enabled escape.
The prosecution must prove that the accused accessory's actions were for the specific purpose of enabling escape. See R. v. Camponi, 1993 CanLII 1163 (BCCA):
there is a free standing fault element which is the ulterior intention or desire (purpose) that the person assisted "escape" as a consequence of the conduct alleged.
It is a question for the jury as to whether the accused accessory had the required purpose: R. v. McVay, 1982 CanLII 3684 (ONCA).
Here are some sample jury instructions on the purpose element of accessory-after-the-fact (R. v. Dagenais, 2018 ONCA 63, para. 38; these instructions were held to be deficient in the circumstances, but only because they referred to an individual as principal that did not match the Crown's theory of the accessory's guilt — the substance of the "purpose" instruction is correct):
What is important here is [the accused accessory's] purpose, not the effect of what she did. Crown counsel must prove beyond a reasonable doubt that [the accused accessory] did what she did for the purpose of helping [the principal] escape. Whether her conduct actually did help [the principal] escape may help you decide what [the accused accessory's] purpose was in giving assistance, but Crown counsel does not have to prove that what [the accused accessory] did actually achieved that purpose.
To determine [the accused accessory's] state of mind, her purpose in providing assistance to [the principal] you should consider:
- What she did or did not do
- How she did or did not do it; and
- What she said or did not say about it.
All these things, and the circumstances in which they happened, may help you decide whether [the accused accessory's] purpose in providing assistance to [the principal] was to enable him to escape. Use your good common sense.
Application to the hypothetical
Given that there is no asserted purpose in the hypothetical, we do not know whether Joe has committed an offence.
Whether an offence can be proved is a different question than whether certain facts make out the offence.
Regarding how to prove intent, see: How do you prove a fact at issue in litigation?
