Section 316(1) of the Crimes Act 1900 (NSW) reads:

If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.

For many centuries it has been held as fundamental that every citizen has a moral responsibility to assist law enforcement agencies in bringing crimes to the attention of police and assisting law enforcement agencies to bring offenders to justice. Without the community’s assistance, many crimes would go undetected an unpunished. Often it is the decision of the witnesses whether or not they come forward and choose to report offences that they witness.

From the perspective of society at large, we see the value in requiring members of the public to bring serious breaches of law to the attention of police, yet as individuals we admire the strength, courage and conviction of those who step forward and boldly declare that they have seen others commit criminal transgressions. Needless to say, for some, the question of whether to become a witness for the Crown is a potentially dangerous or deadly decision, due to fear of reprisal from the alleged offenders. For others, it is a decision that boldly goes against fundamental social realities, such as those who give evidence against their families, friends or loved ones knowing what a drastic effect such evidence may have on their own lives.

Such is the complex state of the law that few people realize that to know or believe that someone has committed a serious indictable offence and have information which might assist police to secure the apprehension, prosecution or conviction of the offender is themselves committing a serious offence. To so-called ‘conceal’ a serious indictable offence of itself carries a maximum penalty of two years imprisonment.

Society has in some instances recognized the delicate balance that the law needs to find between compelling witnesses to give evidence and allowing them to refrain from doing so in circumstances where society recognizes a special relationship between the witness and the accused.

For example, section 18 of the Evidence Act 1995 allows a spouse, de facto spouse, parent or child of a defendant to object to being required to give evidence as a witness for the prosecution and the court needs to determine this objection on the basis of a complex formula. This formula takes into account a number of factors and assesses whether or not harm would result to the witness and whether the nature and extent of that harm outweighs the desirability of having the evidence given.

Likewise, section 127 of the Evidence Act 1995 entitles a member of a clergy of any church or religious denomination to object to giving evidence of a religious confession having been made. As a society, we hold the concept of religious confession so highly that we will not discourage religious confessions by placing them freely for inspection by a court.

But for the rest of us, section 316 of the Crimes Act takes this a large step further, converting what some may see as a “moral obligation” into a legal duty that any person at any time may be forced to perform or else subsequently realize they have been charged themselves with a serious offence.

If you witness a serious assault, if you see someone get robbed, or even if you see people flee a scene where you ‘believe’ an offence may have been committed and have information which ‘might’ assist police, then this piece of legislation operates to charge you unless you report what you do know to police.

Unfortunately, the legislation uses the phrases “knows or believes” and “information which might”, which quite considerably water down what might be needed in order to substantiate a charge of Conceal Serious Indictable Offence.

The word ‘Conceal’ would give most upstanding citizens the idea of ‘cloak and dagger’ pursuits as one person aids in a speedy getaway or sends police dashing down the wrong street, as happens in some poor crime drama. Yet, the legislation is quite different. You may be on a bus and witness an assault but you are also late to work so you do not choose to wait for police to give a description of the attacker. You may be driving down the freeway and see a serious car accident but given others are assisting, you don’t think twice about continuing on your journey. Both of these examples, in certain circumstances, could give rise to criminal charges against you and amazingly such conduct is characterized as “concealing”.

In a recent noteworthy case, the writer represented a client charged pursuant to s316 with having concealed a serious indictable offence. The indictable offence was a serious assault. It was clear from the police case, in which evidence of over twenty witnesses and CCTV footage was tendered that our client did not witness the attack and could not possibly have seen who committed the attack. In hindsight, the police determined through CCTV footage that our client had been seen associating with the persons who had committed the attack both before and some minutes after the attack and drew the inference that therefore he must have “believed” he knew who had committed the attack and knew that that information “might” assist police. The complexity of section 316 was considered at length in that case. We were successful in having him found not guilty on the basis that the Magistrate could never be satisfied beyond a reasonable doubt that he actually knew or believed anything about the commission of that attack on the basis of the evidence.

Concealing a serious indictable offence is in itself quite a serious offence, as are related offences of hindering a police investigation and perverting the course of justice. As we have shown, you could commit the offence and never have a second thought about it. As much as can be said for the good nature of human beings, it is not every day that bystanders go out of their way to intervene in the commission of serious offences or to bring matters to the police’s attention if they are otherwise occupied.