HISTORY OF SECTION 316
2.1 Section 316 was inserted into the Crimes Act 1900 (NSW) in 1990 as part of a package of amendments to the Crimes Act.1 The purpose of the amendments was to create a comprehensive statement of the law relating to public justice offences which, until the enactment of the amendments, was “fragmented and confusing, consisting of various common law and statutory provisions, with many gaps, anomalies and uncertainties”.2 The section replaced the common law misdemeanour of misprision of felony.3 The common law offence consisted of knowing that a felony had been committed and failing to disclose that knowledge to those responsible for the preservation of the peace within a reasonable time and having had a reasonable opportunity for doing so.4 In England, the common law offence was replaced with a statutory offence in 1967, following the abolition of the distinction between felonies and misdemeanours in that jurisdiction.5 However, the distinction between felonies and misdemeanours still exists in New South Wales.6
SECTION 316
2.2 Section 316 of the Crimes Act 1900 (NSW) provides that:
Concealing serious offences
316(1) If a person has committed a serious 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.
(2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offence under subsection (1) is liable to imprisonment for 5 years.
(3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making or reasonable compensation for that loss or injury.
The meaning of “serious offence” in s 316(1) is:
An offence punishable by imprisonment or penal servitude for 5 years or more or for life.7
Murder, sexual assault and theft are serious offences under s 316. Growing small amounts of marijuana and prostitution are offences which are not serious under the section.
2.3 Although s 316 requires that the concealed offence be a “serious offence”, it is not necessary for the prosecution to establish that the defendant knew that the offence was a serious offence.8
2.4 Section 316 applies whenever a person who knows or believes that an offence has been committed “has information which might be of material assistance” in the apprehension, prosecution or conviction of the offender. The section clearly applies to a person where the offender has confessed to that person. However, the section also applies where a person has information (other than admissions or confessions) about other real or circumstantial evidence of an offence. The term “information” includes information in the nature of hearsay, as well as information which would be admissible in court as evidence.
BASIS OF RULE
2.5 The policy rationale of s 316 is that it serves the public interest by encouraging citizens to provide information about serious offences to law enforcement authorities.9
CONVICTIONS UNDER SECTION 31610
2.6 In the Local Courts, 85 cases under s 316 were documented in the period June 1992 to May 1997. Thirty four cases under s 316 were recorded in the higher courts in a slightly longer reporting period, from the commencement of the operation of s 316 in 1990 to December 1996.
Local Courts
2.7 81 cases under s 316(1) are recorded during the reporting period.11 The accused pleaded guilty in 71 cases. Forty seven offenders had prior convictions of some type, although the statistical information available does not indicate the type of prior offences. Four offenders were charged with multiple counts. The penalty imposed in most cases in the Local Courts was either a fine, ranging between $100.00 and $500.00, or a bond under s 558 of the Crimes Act 1900 (NSW). Custodial sentences were rare; only seven prison sentences, ranging from two months to seven months, were imposed on offenders during the period. A full breakdown of penalties imposed is set out at 2.8 below.
2.8 Penalties for conviction under s 316(1) in the Local Courts, June 1992 to May 199712
Table 1
| Outcome | Number of cases |
| Fine | 18 |
| Bond under s 558 | 18 |
| Community service orders (100 - 200 hours) | 11 |
| Bond under s 556A | 10 |
| Combination of bond under s 558 and fine | 8 |
| Prison | 7 |
| Dismissal under s 556A | 4 |
| Periodic detention | 4 |
| Rise of Court | 1 |
[Link to text only version of table 1]
2.9 Four cases under s 316(2) are recorded during the reporting period. The accused pleaded guilty in every case. Two offenders had prior convictions of some type, although the statistical information available does not indicate the type of prior offences. No offenders were charged with multiple counts. Fines of $300.00 and $4,000.00 were imposed in two cases. In one case, the offender received a bond under s 558 of the Crimes Act 1900 (NSW) and in the other case a compound penalty of a bond under s 558 and a fine was imposed.
Higher courts
2.10 34 cases under s 316(1) are recorded in the higher courts during the reporting period. The accused pleaded guilty in every case. Nine offenders had prior convictions, although none were for the same or similar offences.13 Two offenders were charged with multiple counts. The penalty imposed in most cases in the higher courts was either a bond under s 558 of the Crimes Act 1900 (NSW) or a community service order. Community service orders required between 50 hours and 500 hours of community service work, with the majority requiring between 250 hours and 300 hours of community service. Custodial sentences were also rare in the higher courts. Only two prison sentences, both of six months, were imposed during the period. A full breakdown of penalties imposed is set out at 2.11 below.
2.11 Penalties for conviction under s 316(1) in the higher courts, January 1990 to December 199614
Table 2
| Outcome | Number of cases |
| Bond under s 558 | 18 |
| Community service order | 8 |
| Combination of bond under s 558 and fine | 3 |
| Prison | 2 |
| Bond under s 556A | 2 |
| Dismissal under s 556A | 1 |
[Link to text only version of table 2]
2.12 No cases under s 316(2) are recorded in the higher courts during the period.
RELATED OFFENCES
2.13 The Crimes Act 1900 (NSW) contains several other offences relating to the concealment of offences.
Hindering investigations
2.14 Section 315 of the Crimes Act 1900 (NSW) provides that:
315(1) A person who does anything intending in any way to hinder:
(a) the investigation of a serious offence committed by another person; or
(b) the discovery of evidence concerning a serious offence committed by another person; or
(c) the apprehension of another person who has committed a serious offence;
is liable to penal servitude for 7 years.
“Serious offence” has the same meaning for these offences as it does for s 316.15 There is also a specific offence of tampering with or fabricating evidence or knowingly making use of fabricated evidence with the intention of misleading a court, which carries a penalty of imprisonment for ten years.16 These offences, which cover situations where the accused does a positive act to prevent the investigation of the offence or tamper with evidence, can be contrasted with s 316, which makes it an offence merely to have knowledge of a serious offence in certain circumstances. 17
Interference with judicial officers, witnesses, jurors and police
2.15 The Crimes Act 1900 (NSW) also contains a series of offences which relate to interference with judicial officers, witnesses and jurors by corruption, threats, intimidation, and preventing a witness or juror from attending court. The penalties for committing these offences are imprisonment for periods ranging between five years and fourteen years.18 It is an offence to wilfully obstruct a police officer executing his or her duties. The penalty for this offence is five years’ imprisonment.19 It is also an offence to resist or hinder or incite another person to resist or hinder a police officer. The penalty for this offence is imprisonment for one year or a $1000.00 fine.20
Aiding and abetting, accessories
2.16 The Crimes Act 1900 (NSW) contains a series of aiding and abetting provisions and accessory offences,21 as well as aiding and abetting provisions in relation to specific offences.22
2.17 A person is guilty of aiding and abetting an offence if he or she is present when the offence is committed and the person assists or encourages the offender to commit the offence, or is ready and willing to assist or encourage the offender to commit the offence. If there is no common purpose between the two, there must be actual encouragement in some form or other.23 In contrast, s 316 makes it an offence merely to have knowledge of a serious offence in certain circumstances, without assisting or encouraging the offender in any way or being prepared to do so if required.
2.18 A person is guilty of being an accessory before the fact of an offence if, although not present at the time of the offence, the person intentionally procures, incites or encourages the offence in some way.24 A person is guilty of being an accessory after the fact of an offence if, although not present at the time of the offence, the person assists the offender in any way to dispose of the proceeds of the crime or to avoid apprehension, trial or punishment.25 Again, the distinction between s 316 and the accessory offences is that mere knowledge that a person intends to or has committed a crime is not enough for liability as an accessory.
FOOTNOTES
1. Section 316 was inserted into the Crimes Act 1900 (NSW) by the Crimes (Public Justice) Amendment Act (1990) NSW, which was proclaimed on 25 November 1990: New South Wales Government Gazette No 141 of 9 November 1990 at 9816.
2. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 17 May 1990, the Hon JRA Dowd, Attorney General, Second Reading Speech at 3692.
3. Crimes Act 1900 (NSW) s 341.
4. Sykes v Director of Public Prosecutions [1962] AC 528 at 560, 563-564; 45 Cr App R 230; R v Wozniak (1989) 16 NSWLR 185 (NSW Ct of Cr App).
5. See para 3.3.
6. The Commission has previously recommended that all distinctions between felonies and misdemeanours be abolished: New South Wales Law Reform Commission, Sentencing, (Report 79, 1996) at para 14.26.
7. Crimes Act 1900 (NSW) s 311(1).
8. Crimes Act 1900 (NSW) s 313.
9. See paras 4.1 and 4.2.
10. Data referred to in paras 2.6 to 2.11 taken from the Judicial Commission of NSW Judicial Information Research System Sentencing Statistics database.
11. There were also four cases under s 316(2) during the reporting period. See para 2.9.
12. Section numbers refer to the Crimes Act 1900 (NSW).
13. See paras 2.13 to 2.15.
14. Section numbers refer to the Crimes Act 1900 (NSW).
15. See para 2.2.
16. Crimes Act 1900 (NSW) s 317.
17. See Crimes Act 1900 (NSW) s 315(3) which expressly states that it is not an ofence under s 315 merely to refuse to or fail to divulge information or produce evidence.
18. Crimes Act 1900 (NSW) Part 7, chapter 3 ss 320-326.
19. Crimes Act 1900 (NSW) s 58.
20. Crimes Act 1900 (NSW) s 546C.
21. Crimes Act 1900 (NSW) Part 9.
22. For example Crimes Act 1900 (NSW) s 31C, which makes it an offence to aid another person to commit suicide.
23. R v Clarkson [1971] 3 All ER 344; R v Allan [1965] 1 QB 130; (1963) 47 Cr App R 243.
24. R v Taylor (1875) LR 2 CCR 147.
25. R v Lee (1834) 6 Carr & P 536.
