This article explores the offences of:

  • Concealing a serious indictable offence, and
  • Concealing child sex abuse.

 

The offence of concealing a serious indictable offence

Section 316(1) of the Crimes Act 1900 (NSW) states that an adult is guilty of an offence if they:

  • Know or believe that a serious indictable offence has been committed by another person, and
  • Know or believe that they have information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and
  • Fail without reasonable excuse to bring that information to the attention of a member of the NSW Police Force or other appropriate authority.

 

What is a serious indictable offence?

A serious indictable offence is an offence dealt with in the District or Supreme Court that is punishable by a term of five years imprisonment or more.

 

Maximum penalty

The maximum penalty for concealing a serious indictable offence depends on the maximum penalty of the offence concealed.

  • If you conceal a serious indictable offence that holds a maximum penalty of less than 10 years imprisonment, the maximum penalty is two years imprisonment.
  • If you conceal a serious indictable offence that holds a maximum penalty of more than 10 years imprisonment but less than 20 years imprisonment, the maximum penalty is three years imprisonment.
  • If you conceal a serious indictable offence that holds a maximum penalty of more than 20 years imprisonment, the maximum penalty is five years imprisonment.

 

What is a reasonable excuse?

It is an offence to fail to know or believe you have information that may be of material assistance to police and fail without reasonable excuse to bring that information to the attention of police.

The statute does not provide a list of reasonable excuses. If you are charged with this offence and believe you have a reasonable excuse, this will be judged on the specific circumstances of your case.

However, the statute does give one example of a reasonable excuse. A person has a reasonable excuse for failing to bring information to the attention pf police where:

  • The information relates to a sexual offence or domestic violence offence against an alleged victim,
  • The alleged victim was an adult at the time the information was obtained by the person, and
  • The person believes on reasonable grounds that the alleged victim does not wish the information to be reported to police.

The statute also states that a prosecution for this offence is not to be commenced without the approval of the Director of Public Prosecutions if the relevant knowledge, belief or information was obtained by the defendant in the course of that person practising one of the following professions:

  • Legal practitioner.
  • Medical practitioner.
  • Psychologist.
  • Nurse.
  • Social worker, support worker or counsellor.
  • Clergy member.
  • Professional or academic researcher.
  • In some circumstances, school teachers.
  • Arbitrator.
  • Mediator.

 

The offence of concealing child sex abuse

Section 316A of the Crimes Act states that an adult is guilty of an offence if they:

  • Know, believe or reasonably ought to know that a child abuse offence has been committed against another person, and
  • Know, believe or reasonably ought to know that they have information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence, and
  • Fail without reasonable excuse to bring that information to the attention of a member of the NSW Police Force as soon as it is practicable to do so.

One of the key differences between ss. 316 and 316A of the Crimes Act is the difference in the mental state of the offender. To be found guilty under s. 316 the offender must know or believe an offence has been committed. To be found guilty under s. 316A, the offender must know, believe or reasonably ought to know that a child abuse offence has been committed. It means that wilful blindness will not preclude criminal liability for an offence under s. 316A Crimes Act.

 

What is a child abuse offence?

Reference to a “child abuse offence” covers a number of physical and sexual violence offences against a child, including but not limited to:

  • Murder or manslaughter.
  • Wounding or grievous bodily harm.
  • Choking, suffocation or strangulation.
  • Failure to provide a child with necessities of life.
  • Female genital mutilation.
  • Assault occasioning actual bodily harm.
  • Kidnapping.
  • Sexual offences.

 

Maximum penalty

Like an offence under s. 316 of the Crimes Act, the maximum penalty of an offence contrary to s. 316A of the Crimes Act depends on the maximum penalty of the child abuse offence concealed.

  • If the maximum penalty of the child abuse offence is less than five years imprisonment, the maximum penalty is 2 years imprisonment.
  • If the maximum penalty of the child abuse offence is more than five years imprisonment, the maximum penalty is five years imprisonment.

 

What is a reasonable excuse?

The statute provides some examples of what may amount to a reasonable excuse, including:

  • The person believes that the information is already known to police.
  • The person has reasonable grounds to fear for the safety of the person or any other person if the information were to be reported to police.
  • The information was obtained by the person when the person was under the age of 18 years.
  • The alleged victim was an adult at the time that the information was obtained by the person and the person believes on reasonable grounds that the alleged victim does not wish the information to be reported to Police.

As with s. 316 of the Crimes Act, prosecution of persons employed in certain professions requires the approval of the Director of Public Prosecutions.

 

 

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