3.1 Most other Australian jurisdictions have provisions which make failure to disclose knowledge of an offence to the police an offence in certain circumstances. England has also replaced the common law offence of misprision of felony with a modified statutory offence. It did so at the same time as it abolished the distinction between felonies and misdemeanours. That distinction still exists in New South Wales. The elements of the offences and the penalties for committing the offence of concealing an offence differ from jurisdiction to jurisdiction. In England and all Australian jurisdictions except New South Wales, the offence of concealment of an offence is only committed when the offender obtains or attempts to obtain a benefit of some kind in return for not disclosing the offence to the police.
3.2 The Australian Capital Territory is the only Australian jurisdiction with no offence equivalent to s 316. However, the Australian Capital Territory does have provisions dealing with aiding and abetting an offence and with accessories.1
ENGLAND
3.3 Section 5 of the Criminal Law Act 1967 (Eng) provides:
Penalties for concealing offences or giving false information
5(1) Where a person has committed an arrestable offence, any other person who, knowing or believing that the offence or some other offence has been committed, and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts or agrees to accept for not disclosing that information any consideration other than the making good of loss or injury caused by the offence, or the making of reasonable compensation for that loss or injury, shall be liable on conviction on indictment to imprisonment for not more than two years.
....
(3) No proceedings shall be instituted for an offence under this section except with the consent of the Director of Public Prosecutions.
3.4 The English provision applies to the concealment of “arrestable offence(s)”. “(A)rrestable offence” includes all offences for which the sentence is fixed by law; offences carrying a sentence of five years’ imprisonment for a first conviction; and numerous offences under a wide variety of prescribed legislation, including customs and excise offences, offences under England’s official secrets legislation, and offences relating to the publication of obscene material and carrying offensive weapons.2 The scope of s 5 of the Criminal Law Act 1967 (Eng) is much broader than the obligation to disclose information about “serious offences” imposed by s 316.
3.5 In England, the offence of concealing an offence is only committed when the defendant accepts or agrees to accept consideration for not disclosing information about the offence. Section 316 contains a similar offence3 , but also creates an offence where a crime is concealed without any benefit accruing.4
3.6 Section 5 of the Criminal Law Act 1967 (Eng) provides guidance as to the meaning of “consideration” in the section. Making good the loss or injury caused by the offence or compensation for that loss or injury does not constitute consideration. This also applies in New South Wales.5
3.7 There is no equivalent in s 316 to the prerequisite in s 5 of the Criminal Law Act 1967 (Eng) that the Director of Public Prosecutions consent to all prosecutions under s 5 of the Criminal Law Act 1967 (Eng).
3.8 Unlike s 316, s 5 of the Criminal Law Act 1967 (Eng) does not contain an exception where the defendant has a reasonable excuse for failure to disclose an offence to the police.
3.9 The penalty for committing an offence under the English provision is imprisonment for a maximum of two years. This is identical to the penalty imposed by s 316(1), but considerably less than the penalty imposed by s 316(2), which is actually equivalent to s 5 of the Criminal Law Act 1967 (Eng) in that it only applies where the defendant accepts or agrees to accept a benefit for concealing an offence. The penalty imposed by s316(2) is imprisonment for five years.
SOUTH AUSTRALIA
3.10 There appears to be no offence of concealment of an offence in South Australia. Section 241 of the Criminal Law Consolidation Act 1935 (SA) provides:
Impeding investigation of offences or assisting offenders
241(1) Subject to subsection (2), a person (“the accessory”) who, knowing or believing that another person (“the principal offender”) has committed an offence, does an act with the intention of -
is guilty of an offence.
(2) An accessory is not guilty of an offence against subsection (1) –
(a) unless it is established that the principal offender committed -
(b) if there is lawful authority or reasonable excuse for the accessory’s action.
....
This is a true accessory after the fact offence.6
3.11 Section 241 of the Criminal Law Consolidation Act 1935 (SA) applies to the concealment of all types of offences, unlike s 316 which is restricted to the concealment of serious offences.
3.12 The language used in s 241 of the Criminal Law Consolidation Act 1935 (SA) is different to the language of s 316. Section 316(1) focuses on the defendant’s state of mind. It refers to the defendant knowing or believing that a serious offence has been committed, but failing to bring information about the offence to the authorities. Section 241 of the Criminal Law Consolidation Act 1935 (SA) emphasises the steps taken by the defendant to conceal the offence. It requires that the defendant “does an act” with the intention of impeding the investigation of the offence or the apprehension or prosecution of the offender. This element is required by the South Australian provision in addition to the requirement that the defendant knew or believed that an offence had occurred.
3.13 Section 241 of the Criminal Law Consolidation Act 1935 (SA) specifically provides that where a person is found not guilty of the principal offence but the court is satisfied that another person was guilty of the principal offence, the court may still find the accessory guilty of an offence under s 214.7 The South Australian provision also provides that a defendant may be convicted of an accessory offence committed outside South Australia if the court has jurisdiction to deal with the principal offence.8 Section 316 does not deal with these issues.
3.14 The penalties for committing an offence under s 241 of the Criminal Law Consolidation Act 1935 (SA) are staggered between two years’ and ten years’ imprisonment, depending on the sentence committed for the principal offence.9 The penalties under s 316 are not linked to the concealed offence in this way. Instead, in s 316, the penalty is increased from imprisonment for two years to imprisonment for five years where the defendant accepts or agrees to accept any benefit in consideration for concealing the offence. This reflects the fact that it is considered to be a more serious offence to receive a benefit in return for concealing an offence. Section 241 of the Criminal Law Consolidation Act 1935 (SA) does not refer to the situation where a defendant receives a benefit in return for concealing the principal offence.
3.15 In 1992 there were two prosecutions in the Local Courts under s 241 of the Criminal Law Consolidation Act 1935 (SA). There were no prosecutions in the higher courts in 1992. Between 1993 and 1996 in the Local Courts there was an average of 29 convictions per year. In 43% of cases between 1992 and 1996, no penalty was imposed on the convicted offender. Fines were imposed in almost 15% of cases. Suspended prison sentences were imposed in a further 15% of cases. Community service orders were imposed in almost 13% of cases. Imprisonment was imposed in less than 10% of cases. In the higher courts in the same period there was an average of 9 convictions per year. In over 28% of these cases, no penalty was imposed on the convicted offender. Imprisonment accounted for over 28% of penalties and suspended prison sentences accounted for 22% of penalties. Bonds were imposed in over 16% of cases. 10
VICTORIA
3.16 Section 326(1) of the Crimes Act 1958 (Vic) provides:
Concealing offences for benefit
326(1) where a person has committed a serious indictable offence, any other person who, knowing or believing that the offence, or some other serious indictable offence, has been committed and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts any benefit for not disclosing that information shall be guilty of an indictable offence and liable to level 8 imprisonment.11
3.17 “Serious indictable offence” is defined as an indictable offence which is punishable on first conviction with imprisonment of five years or more or life.12 This is similar to the definition of “serious offence” for the purposes of s 316.
3.18 In Victoria, the offence of concealing an offence is only committed when the defendant accepts a benefit for not disclosing information about a serious indictable offence which the defendant knows or believes has been committed. Section 316 contains a similar offence, but also creates an offence where a crime is concealed without any benefit accruing.13
3.19 Section 326 of the Crimes Act 1958 (Vic) provides guidance as to the meaning of the term “accepts any benefit”. It provides that in relation to thefts, criminal damage to property, similar and associated offences, no offence is committed if the only benefit accepted in return for failing to disclose the offence is the making good of any loss or injury caused by the offence, or the provision of reasonable compensation for the loss or injury.14 In New South Wales, the provision that soliciting, accepting or agreeing to accept the making good of the loss or injury caused by an offence or the making of reasonable compensation does not constitute a benefit, is not restricted to a particular group of offences.15
3.20 Section 326 of the Crimes Act 1958 (Vic) also deems that a person accepts a benefit by accepting or agreeing to accept:
any benefit or advantage, or the promise of any benefit or advantage, either to himself or to another, whether or not the benefit or advantage is in money or money’s worth.16
There is no equivalent provision defining the term “benefit” in s 316.
3.21 Section 326 also states that “benefit” for the purposes of s 326 can accrue to the defendant or to any other person.17 This is also the position in New South Wales.18
3.22 Unlike s 316, s 326 of the Crimes Act 1958 (Vic) does not contain an exception where the defendant has a reasonable excuse for concealing information about an offence from the police.
3.23 The penalty for committing an offence under s 326 of the Crimes Act 1958 (Vic), one year’s imprisonment, is considerably lower than the penalty of five years’ imprisonment prescribed for the offence of concealing an offence for a benefit under s 316(2).
QUEENSLAND, WESTERN AUSTRALIA AND NORTHERN TERRITORY
3.24 Queensland, Western Australia and the Northern Territory have all adopted a similar formulation for the offence of compounding or concealing crimes. The offence is contained in the Criminal Code Act 1899 (Qld) s 133; the Criminal Code Compilation Act 1913 (WA) s 136 and the Criminal Code Act 1983 (NT) s 104.
3.25 The offence in these jurisdictions provides:
Any person who asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself, herself or any other person, upon any agreement or understanding that the person will compound or conceal a crime, or will abstain from, discontinue, or delay, a prosecution for a crime, or will withhold any evidence thereof, is guilty of an indictable offence.
3.26 This section applies to the concealment of all types of crimes, compared to s 316 which is restricted to the concealment of serious offences.
3.27 In Queensland, Western Australia and the Northern Territory the offence of concealing an offence is only committed when the defendant asks for, receives, or agrees or attempts to receive property or a benefit for not concealing the crime. Section 316 contains a similar offence, but also creates an offence when a crime is concealed without any benefit accruing.19
3.28 The definition of benefit in these jurisdictions includes property and states that the property or benefit can accrue to the defendant or to any other person. Section 316 also states that “benefit” for the purpose of s316(2) can accrue to the defendant or to any other person.20
3.29 Unlike s 316, the offence in these jurisdictions does not contain an exception where the defendant has a reasonable excuse for concealing information about an offence from the police.
3.30 The penalties for committing an offence in these jurisdictions are staggered between three years’ and seven years’ imprisonment, depending on the sentence for the concealed offence.21 This is also the approach taken in the South Australian provision.22 The penalties under s 316 are not linked to the concealed offence in this way.
3.31 In Queensland, the offender can not be arrested without a warrant.23
3.32 There have been no prosecutions under the Queensland provision in the last ten years and there is no record of any prosecution under the Northern Territory provision. There have been two convictions under the Western Australian provision. In both cases, the offender pleaded guilty and was fined $2000.00.24
TASMANIA
3.33 Section 58 of the Criminal Code Act 1924 (Tas) contains a concealment offence which is limited to the concealment of treason.
FOOTNOTES
1. Crimes Act 1900 (ACT) ss 345 and 346.
2. Criminal Law Act 1967 (Eng) s 41A.
3. Crimes Act 1900 (NSW) s 316(2).
4. Crimes Act 1900 (NSW) s 316(1).
5. Crimes Act 1900 (NSW) s 316(3).
6. See also Criminal Law Consolidation Act 1935 (SA) s 267.
7. Criminal Law Consolidation Act 1935 (SA) s 241(5).
8. Criminal Law Consolidation Act 1935 (SA) s 241(6).
9. Criminal Law Consolidation Act 1935 (SA) s 241(3) and (4).
10. Letter dated 28 October 1997 to the Commission from the Director of Public Prosecutions, South Australia.
11. The level of imprisonment prescribed for an offence against s 326 was amended by the Sentencing and Other Acts (Amendment) Act 1997 (Vic) s 60. “Level 8 imprisonment” is imprisonment for one year: Sentencing Act 1991 (Vic) s 109.
12. Crimes Act 1958 (Vic) s 326(6).
13. See para 3.5.
14. Crimes Act 1958 (Vic) s 326(2).
15. Crimes Act 1900 (NSW) s 316(3).
16. Crimes Act 1958 (Vic) s 326(3).
17. Crimes Act 1958 (Vic) s 326(3).
18. Crimes Act 1900 (NSW) s 316(2).
19. See para 3.5.
20. See para 3.21.
21. Criminal Code Act 1899 (Qld) s 133(2) and (3); Criminal Code Compilation Act 1913 (WA) s 136; Criminal Code Act 1983 (NT) s 104.
22. See para 3.14.
23. Criminal Code Act 1899 (Qld) s133(4).
24. Letter dated 2 October 1997 to the Commission from the Acting Director of Public Prosecutions, Queensland; letter dated 20 October 1997 to the Commission from the Director of Public Prosecutions, Northern Territory; letter dated 5 November 1997 to the Commission from the Director of Public Prosecutions, Western Australia.
