ARGUMENTS FOR RETAINING SECTION 316
4.1 There are clear arguments for retaining s 316 in its current form. These arguments focus on the social utility of the section.
4.2 It is argued that the section serves a valid social purpose, which is to encourage members of the public to report information about serious crimes to the police and other appropriate authorities and to assist in the administration of justice.1
4.3 It has also been suggested that the offence serves a useful purpose by facilitating plea bargaining.2 However, the data on prosecutions under s 316 does not support this argument. Of 85 cases under s 316 in the Local Courts in the period June 1992 to May 1997, four defendants were charged with multiple counts. Of 34 cases under s 316 in the higher courts in the period January 1990 to December 1996, no defendants were charged with multiple counts.3 The section may also be used by the police as a plea bargaining tool in the sense that it is presented to suspects as a lesser offence than the alternative charges the police can choose from.
ARGUMENTS FOR REFORM OF SECTION 316
4.4 There are strong arguments for the reform of s 316. These arguments focus on the scope of offences covered by the section, civil libertarian concerns, the impact of the section on professional and personal confidential relationships and the relationship of s 316 and the law relating to the right to silence and privilege against self incrimination.
Scope of s 316
4.5 It is argued that the unreasonably wide scope of s 316 has the potential to bring the criminal law into disrepute. The section makes it an offence to fail to disclose a “serious offence”, which is defined as an offence punishable by at least five years’ imprisonment.4 However, many submissions suggested that the community would consider that it was absurd to require disclosure of many offences which technically fall within this definition. For example, a boy who gives his mate a “leg up” in an attempt to climb a brick wall into enclosed lands with intent to steal a horse commits a “serious offence”. 5
Civil libertarian concerns
4.6 One submission characterised the offence created by s 316 as nonfeasance, distinguishing it from misfeasance, such as the active suppression of information, or active assistance of an offender to escape detection.6 Civil libertarians argue that it is oppressive to make it a crime for a person to hold a particular state of mind, even where the person has not done any act to conceal an offence. It is argued that this extends criminal liability too far from the criminal act itself.7
4.7 A related civil libertarian argument is that the obligation to disclose information about the commission of serious offences to the police imposed by s 316 makes everyone in the community agents of “big brother” - an unreasonable interference by the state into the freedom of individuals to decide whether or not to participate in the legal framework of society.8 Levels of cooperation with the police cease to be a measure of whether particular laws really reflect what the community wants in the context of an obligation to report “serious offences” to the police.9
Effect on confidential relationships
4.8 Section 316 has been criticised because it imposes an obligation to report serious offences disclosed in the course of confidential relationships. This obligation is inconsistent with the widely accepted principle, which is based on the religious concept of confession, that offenders should be able to discuss their woes with another without fear of betrayal of confidence.10 Many submissions argued that the obligation imposed by s 316 undermines these relationships by destroying confidentiality between the parties.
Lawyer/client relationship
4.9 This argument has been raised in relation to the relationship between lawyers and their clients. It has been suggested that the doctrine of legal professional privilege may not be sufficient to protect a legal practitioner who is charged under s 316.11 Case law on the scope of the common law offence of misprision of felony suggests that legal professional privilege may be a reasonable excuse for the purpose of s 316.12 However there is no case law on the relationship of s 316 and the doctrine of legal professional privilege, although a similar attitude would be expected to be taken.
Law enforcement agencies/informers
4.10 A similar argument has been raised in by law enforcement agencies, which obtain information about the commission of offences from informers. It is argued that although a potential witness is unlikely to be prosecuted under s 316, the possibility alone is a disincentive to informers to cooperate with law enforcement agencies.13 The problem is exacerbated for investigators and interviewers who consider that they are compelled to caution potential witnesses about the section.14 This problem can only exist in relation to informers who are potential witnesses. It must be recognised that many informers merely acquire knowledge of offences through others and are not witnesses to offences.
Health care professionals, counsellors/patients
4.11 Relationships between health care professionals, including medical practitioners, nurses, counsellors and educators and their patients are also based on confidentiality. It is argued that the existence of s 316 will deter patients from approaching such professionals for medical advice or counselling when doing so will necessitate revealing the commission of a serious offence by or against the patient.15 Similar considerations may apply to some youth workers and social workers.
4.12 This problem can arise in many situations. For example, a person may approach a medical practitioner seeking advice on safe sexual practices, revealing that the client or the client’s sexual partner is under the age of consent. A person may approach a drugs counsellor seeking information on safer injecting drug use or information about drug addiction and reveal that he or she or another person possesses a quantity of a prohibited drug. A person may approach a medical practitioner for treatment of injuries and reveal that they have been a victim of an assault. The same person may reveal the commission of the assault against them to a school counsellor. As with law enforcement agencies, the problem is exacerbated for health care professionals and counsellors who consider that they are compelled to caution clients in advance that if they disclose information about serious offences, it will be reported.16
4.13 A related issue is the potential application of s 316 to people in “quasi-counselling” positions such as sports coaches and teachers.17
Researchers/subjects
4.14 This issue has also been raised by researchers who argue that compliance with the obligation to report serious offences imposed by s 316 would inhibit legal, medical and social research.18 Again, this can arise in many contexts.
4.15 Legal research into criminal activity may involve interviewing offenders, witnesses and victims of crime as well as observing people involved in criminal activity. Illegal behaviour which may include serious offences may also come to light indirectly in medical and social studies where it is not the primary focus.19 There are clear problems with the potential legal liability of researchers in relation to information about serious offences acquired during the course of research. University and other institutional ethics committees who approve research projects generally require consent from research subjects after proper explanation. Informing research subjects that the information which they provide may be reported to authorities is likely to be a significant impediment to participation in research and is also likely to undermine trust between the researcher and the research subject.20
4.16 Although the exercise of prosecutorial discretion may ensure that researchers are not charged under s 316, the potential legal liability of the researcher, the university and its officers, and the fact that this will undermine the institution’s insurance coverage means that approval may be withheld.21 Medical and social research and research into criminal behaviour and its control, which is of considerable social utility in developing public strategies to reduce the harms associated with crime, is threatened by the existence of s 316.22
Family and friends
4.17 Section 316 imposes an obligation to report serious offences on the offender’s family. Such an obligation is in conflict with their role within the family and may harm the relationship of family members.23 For example, parents who know or believe that their child has committed a serious offence are required by s 316 to inform the police of any information which might assist in securing the apprehension or conviction of their child. This would also apply to spouses. Complying with the disclosure obligation imposed by s 316 would severely strain, and may well destroy, these relationships. One submission queried whether, if there are multiple witnesses in one family to a “serious offence”, the obligation to report continues once one family member reports the offence to the police.24 In this context, family can have many different meanings. Similar objections to the scope of s 316 apply in relation to close friends of the offender.25
4.18 However, it is also arguable that in the case of serious offences such as domestic violence and sexual assault occurring within the family, it is appropriate that the obligation to report offences should outweigh protection of the family relationship.
Residential care facilities
4.19 One submission also noted the possibility that people with intellectual disability living in residential facilities could be charged for not reporting an offence they witnessed against another resident.26
Victims
4.20 Finally, s 316 may be wide enough to impose an obligation to report serious offences on victims of crime. It is argued that this is unacceptable because victims should be entitled to exercise their own judgment in deciding not to report offences committed against them and may have many valid reasons for choosing not to inform the authorities.27 One submission also argued that the section deprives victims of offences such as domestic violence of the capacity to use the threat of reporting the offender as a way of negotiating escape from a violent relationship.28
Silence
4.21 The relationship between s 316, the pre trial right of silence and the privilege against self incrimination is not clear. In disclosing information about an offence committed by a third person, a person may incriminate themselves about an offence they have committed. For example, a person may acquire information about illegal drug trafficking in the course of purchasing and using illegal drugs. Is the person entitled to rely on the privilege against self incrimination in this situation to avoid the obligation to report information in relation to the offence committed by the third person? There is authority that at common law the pre trial right of silence prevailed over the offence of misprision of felony.29 This position has been criticised on the basis that it may lead to injustice where there is a gross discrepancy between the magnitude of the concealed offence and the insignificance of the apprehended prosecution. For example, where disclosing information about a murder would incriminate the informant as having been driving without a licence, it is argued that giving ascendancy to the right to silence produces injustice.30
4.22 However, there is no case law on the relationship between s 316 and the right to silence. One submission suggested that an accomplice or accessory would be guilty of an offence under s 316 when exercising the right not to answer police questions which may lead to his or her own conviction.31
4.23 A technical problem related to the operation of the privilege against self incrimination is that where an accused has had knowledge or a belief about the commission of a serious offence for some time, the disclosure of that information will incriminate the accused in respect of the concealment itself.
OPTIONS FOR REFORM
Abolition
4.24 A number of submissions argued that the solution to the problems with s 316 discussed at paras 4.4 to 4.23 was abolition of the section.32 This position is justified on the basis that the offence is rarely used33 and that courts have rarely imposed significant penalties on offenders.34 Related to this argument is the suggestion that s 316 is, or could be, used oppressively where prosecuting authorities know that a person was involved in an offence but are unable to prove the nature of the person’s involvement, and to “target” families of offenders known to the police.35
4.25 It is also argued that the section has minimal deterrent value,36 and that there are other offences which adequately cover blameworthy activity of this type.37
Define “reasonable excuse”
4.26 One submission observed that uncertainty as to the meaning of “reasonable excuse” in s 316 is a major fault with the current provision.38 Arguably, the exception where the accused had a “reasonable excuse” for not disclosing information about a serious offence to the police protects the groups of people referred to at paras 4.8 to 4.20. 39 However, there is no case law on this point. In relation to research work, concern has been expressed that the criteria used to determine what is reasonable from a research ethics perspective may be different from the criteria used in the exercise of a discretion to prosecute or in determining the outcome of a prosecution under s 316.40 This concern could also apply to relatives of offenders and victims of offences.
4.27 To remove doubt, it has been suggested that the term “reasonable excuse” be defined to provide that people in particular professional relationships have a “reasonable excuse” for concealing information about serious offences acquired in the course of those relationships.41 Alternatively, one submission suggested that the section should be amended to clearly separate “reasonable excuse” as a statutory defence, to be made out on the balance of probabilities.42
4.28 This approach does not protect family and friends of offenders or victims of offences from committing an offence under s 316 if they fail to disclose their knowledge of serious offences.
4.29 Another disadvantage of this approach is that the process of prescribing particular professions is complex and inflexible mechanism for protecting confidential relationships from the operation of s 316. It is not possible to predict the range of institutions, students, agencies, commercial organisations, community based groups and independent consultants likely to acquire information about serious offences in the course of confidential relationships.43
Requiring the consent of the Director of Public Prosecutions or Attorney General
4.30 In England no proceedings can be instituted under s 5 of the Criminal Law Act 1967 (Eng) without the consent of the Director of Public Prosecutions.44
4.31 The Crimes Legislation Amendment Act 1997 (NSW) adopts a narrower version of this requirement. It requires the Attorney General’s consent to prosecutions under s 316 of persons who acquire knowledge of a serious offence in the course of practising or following a profession, calling or vocation to be prescribed by regulation.45 Although this approach would reduce the number of prosecutions under s 316 which require the Attorney General’s consent, there are difficulties with relying on a prescribed list of exempted relationships.46 Submissions by academics argued that incorporating a high level discretion is not adequate to protect their interests because the problem faced by researchers is the theoretical possibility of prosecution which is taken into consideration by ethics committees.47
Restricting offence to benefit situations
4.32 Restricting the operation of s 316 to situations where the accused accepts or agrees to accept a benefit in return for not disclosing information to the police or other authorities would exempt the groups of people identified at 4.8 to 4.20 above from the operation of the section. This approach was suggested by a number of submissions.48
4.33 A number of submissions also argued that while there are strong arguments for the abolition of s 316(1), the behaviour criminalised by s 316(2) is much more serious, which warrants retaining this arm of the offence.49
4.34 Comparable offences in England, Victoria, Queensland, Western Australia and the Northern Territory restrict the offence of concealing an offence to situations where the accused obtains a benefit in return for not disclosing the offence.50 This was the offence initially recommended for New South Wales.51 However, following lobbying from the Police Service and Police Association, s 316 was enacted in its current form.52
4.35 Care needs to be taken in relation to the form of words used to describe an offence which is restricted in this way. Concern has been expressed that the expression currently used in s 316(2), “(a) person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person in consideration” for committing an offence under s 316(1), is too broad. It has been suggested that the social utility of research referred to in para 4.16 may fall within the scope of s316(2).53 Similarly, it has been suggested that it is necessary to make clear that earning an academic or other professional salary does not constitute a relevant benefit.54 One submission suggested that “benefit” to a person for the purposes of s 316 should include avoiding an investigation into an incident involving that person.55
Amend definition of “serious offence”
4.36 One submission suggested that s 316 should only apply to the concealment of serious offences which can only be dealt with on indictment.56 Another alternative would be to redefine “serious offence” so that only offences carrying a penalty of, say, seven years or more constituted “serious offences” for the purposes of s 316.
Require intent
4.37 One submission argued that s 316 should only criminalise wilful or intentional concealment of information when called upon to reveal it by the police.57 However, the offence of wilfully obstructing a police officer executing his or her duties already exists in this situation.58
Penalty
4.38 There are considerable discrepancies between the penalty for breach of s 316(1), which is imprisonment for two years, and the penalties under the equivalent provisions in other jurisdictions, which vary from imprisonment for one year to imprisonment for 10 years.59
4.39 In fact, the imposition of prison sentences on offenders under s 316 is rare.60 It has been suggested the reluctance of magistrates and judges to impose prison sentences on offenders relates to the selective use of s 316 by prosecuting authorities.61 It has also been suggested that the imposition of a custodial sentence for the commission of an offence under s316(1) is inappropriate.62
CONCLUSION
4.40 Section 316 has a valid social purpose of encouraging members of the public who have information about serious crimes to report that information to the police and other appropriate authorities. However, the technical application of s 316(1) to information acquired in the course of confidential relationships, including relationships between law enforcement agencies and informants, health care professionals and patients and researchers and research subjects inhibits participation in these relationships. This problem outweighs the social utility of s 316(1).
PROPOSALS
4.41 The Commission is satisfied that s 316 in its present form is unsatisfactory. If its retention at all can be justified in the face of the arguments stated above, some amendments are required at least to clarify problems arising from the present wording and to preserve the interests of lawyers, medical practitioners and others whose services are considered socially valuable. The Commission therefore makes alternative proposals and seeks comment upon them:
OPTION 3 - SPECIFIC EXEMPTIONS
Section 316 should be amended to provide that legal practitioners, medical practitioners / counsellors / psychologists / social workers and priests who acquire information about “serious offences” in the course of their profession or vocation are not guilty of an offence for failing to disclose it, in accordance with the doctrine of privilege. The section should also be amended to provide that engaging in genuine research constitutes a reasonable excuse for concealment of information about serious offences from the police.
FOOTNOTES
1. Criminal Law Revision Committee (Eng) Felonies and Misdemeanours (Report 7, 1965) at 97-99; New South Wales Anti-Discrimination Board Discrimination - The Other Epidemic Report of the Inquiry into HIV and AIDS related Discrimination (April 1992) at 47-48; Kingsford Legal Centre, Submission; Director of Public Prosecutions, Submission; Justice Blanch, Chief Judge of the District Court of New South Wales, Submission.
2. Attorney General’s Department Briefing Note (13 June 1997) para 46.
3. See paras 2.6-2.11.
4. See para 2.2.
5. Public Defenders, Submission; Hon A M Gleeson AC, Chief Justice of the Supreme Court of New South Wales, Submission; Criminal Law Review Division Reform of Offences Involving Public Justice, (Discussion Paper, February 1990) at 16; Criminal Law Revision Committee (Eng), Felonies and Misdemeanours, (Report 7, 1965) at 97; Law Society of New South Wales Criminal Law Committee, Submission.
6. T Nyman, Submission.
7. Hon A M Gleeson AM, Chief Justice of the Supreme Court of New South Wales, Submission; New South Wales Council for Civil Liberties Inc, Submission; T Nyman, Submission; D Dixon, Submission; Public Defenders, Submission; New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 17 May 1990 the Hon J Dowd, Attorney General, at 3694, Second Reading Speech of the Crimes (Public Justice) Amendment Bill 1990 (NSW).
8. New South Wales Council for Civil Liberties Inc, Submission; Public Defenders, Submission.
9. National Children’s and Youth Law Centre, Submission.
10. T Nyman, Submission.
11. Letter dated 21 September 1993 to the Attorney General from the Law Society of New South Wales; Kingsford Legal Centre, Submission; Trevor Nyman, Submission.
12. Sykes v Director of Public Prosecutions [1962] AC 528 at 564; 45 Cr App R 230.
13. Independent Commission Against Corruption, Submission. However, this argument was opposed in two submissions, which argued that s 316 actually operated as an incentive to potential witnesses to provide information relating to offences and corrupt activities to law enforcement agencies: New South Wales Police Service, Submission; M Tedeschi QC, Submission.
14. Independent Commission Against Corruption, Submission.
15. T Nyman, Submission; Kingsford Legal Centre, Submission; National Children’s and Youth Law Centre, Submission; New South Wales Council for Civil Liberties Inc, Submission; New South Wales Anti-Discrimination Board, Discrimination - The Other Epidemic. Report of the Inquiry into HIV and AIDS Related Discrimination (April 1992) at 47-48.
16. New South Wales Anti-Discrimination Board, Discrimination - The Other Epidemic. Report of the Inquiry into HIV and AIDS Related Discrimination (April 1992) at 47-48.
17. Public Defenders, Submission; J Stubbs, Submission.
1 8. D Dixon, Submission; J Stubbs, Submission; L Maher, Submission; Australian Institute of Criminology, Submission; NSW Bureau of Crime Statistics and Research, Submission; R MacDonald, Deputy Vice-Chancellor (Research) University of Newcastle, Submission; G Zdenkowski, Submission; C Fell, Deputy Vice Chancellor, Research and International, University of New South Wales, Submission.
19. L Maher, Submission; J Stubbs, Submission.
20. J Stubbs, Submission; Australian Institute of Criminology, Submission; NSW Bureau of Crime Statistics and Research, Submission.
21. D Dixon, Submission; J Stubbs, Submission; L Maher, Submission; NSW Bureau of Crime Statistics and Research, Submission; R MacDonald, Deputy Vice-Chancellor (Research) University of Newcastle, Submission; G Zdenkowski, Submission; C Fell, Deputy Vice Chancellor, Research and International, University of New South Wales, Submission.
22. D Dixon, Submission; J Stubbs, Submission; L Maher, Submission; NSW Bureau of Crime Statistics and Research, Submission; NSW Council for Civil Liberties Inc, Submission; R MacDonald, Deputy Vice-Chancellor (Research) University of Newcastle, Submission; G Zdenkowski, Submission.
23. Public Defenders, Submission.
24. National Children’s and Youth Law Centre, Submission.
25. Public Defenders, Submission.
26. Intellectual Disability Rights Service, Submission.
27. Hon A M Gleeson AC, Chief Justice of the Supreme Court of New South Wales, Submission; J Stubbs, Submission; Intellectual Disability Rights Service, Submission.
28 National Children’s and Youth Law Centre, Submission.
29. King v R [1965] 1 WLR 706, 49 Cr App R 140 at 145-146.
30. R v Lovegrove & Kennedy (1983) 33 SASR 332 at 334.
31. National Children’s and Youth Law Centre, Submission.
32. D Dixon, Submission; J Stubbs, Submission; Hon A M Gleeson AC, Chief Justice of the Supreme Court of New South Wales, Submission; T Nyman, Submission; New South Wales Council for Civil Liberties Inc, Submission; Law Society of New South Wales Criminal Law Committee, Submission; J Coombs, Submission; C Fell, Deputy Vice Chancellor, Research and International, University of New South Wales, Submission.
33. D Dixon, Submission. See further paras 2.6 to 2.11 for statistics on prosecutions under s 316.
34. P Berman, Submission; T Nyman, Submission. See paras 2.6 to 2.11 for statistics on penalties.
35. Hon A M Gleeson AC, Chief Justice of the Supreme Court of New South Wales, Submission; Law Society of New South Wales Criminal Law Committee, Submission; T Nyman, Submission; North & North West Community Legal Service, Submission; National Children’s and Youth Law Centre, Submission; J Coombs, Submission. One submission also suggested that there was a potential that s 316 could be selectively used by police as retribution against researchers whose work was critical of the police: D Dixon, Submission.
36. D Dixon, Submission.
37. D Dixon, Submission; P Berman, Submission; J Stubbs, Submission. See further paras 2.13-2.15 for a discussion of other relevant offences.
38. Kingsford Legal Centre, Submission. See also Public Defenders, Submission; A Gleeson, Chief Justice of the Supreme Court of New South Wales, Submission; J Stubbs, Submission.
39. M Tedeschi QC, Submission. Current Law Statutes Annotations 1967 argues that the English version of the offence, which does not contain a “reasonable excuse” exemption, nevertheless extends only to concealment that is essentially unfair and improper whether or not a confidential relationship of this type exists.
40. J Stubbs, Submission.
41. Kingsford Legal Centre, Submission; M Tedeschi QC, Submission.
42. Legal Aid New South Wales, Submission.
43. J Stubbs, Submission.
44. Criminal Law Act 1967 (Eng) s 5(3).
45. Crimes Legislation Amendment Act 1997 (NSW) s 3.
46. See para 4.29.
47. D Dixon, Submission; C Fell, Deputy Vice Chancellor, Research and International, University of New South Wales, Submission.
48. D Dixon, Submission; Criminal Law Review Division “Reform of Offences Involving Public Justice” (Discussion Paper, February 1989) at 14-17; Criminal Law Revision Committee (Eng) Report 7 Felonies and Misdemeanours (Report 7, 1965) at paras 37-43; Independent Commission Against Corruption, Submission; Legal Aid New South Wales, Submission.
49. P Berman, Submission; Public Defenders, Submission; Criminal Law Revision Committee (Eng) Felonies and Misdemeanours (Report 7, 1965) at para 37-43; Criminal Law Revision Division “Reform of Offences Involving Public Justice” (Discussion Paper, February 1989) at 14-17.
50. See paras 3.3 (England), 3.15 (Victoria) and 3.23 and 3.24 (Queensland, Western Australia and the Northern Territory).
51. Criminal Law Review Division Reform of Offences Involving Public Justice (Discussion Paper, February 1989) at 17.
52. Director of Public Prosecutions, Submission.
53. NSW Bureau of Crime Statistics and Research, Oral Submission.
54. D Dixon, Submission.
55. Intellectual Disability Rights Service, Submission.
56. Law Society of New South Wales Criminal Law Committee, Submission.
57. North & North West Community Legal Service, Submission.
58. See para 2.15.
59. See Chapter 3.
60. See paras 2.6 to 2.11.
61. T Nyman, Submission.
62. Public Defenders, Submission; North & North West Community Legal Service, Submission.
