OVERVIEW

1.1 This Report reviews s 316 of the Crimes Act 1900 (NSW). Section 316 contains two offences. Where a person has committed a “serious offence”, it is an offence under s 316(1) for another person who knows or believes that the offence has been committed, and that he or she has information material to the possible apprehension of the offender, to fail to report the information to the police or other appropriate authority, unless the person has a reasonable excuse. “Serious offence” is defined in s 311(1) of the Crimes Act as any offence punishable by penal servitude or imprisonment for five years or more. The maximum penalty for the offence of concealing a serious offence is imprisonment for two years.

1.2 It is also an offence under s 316(2) to solicit, accept or agree to accept a “benefit” in return for committing an offence under s 316(1). The expression “benefit” is clarified in s 316(3). This offence attracts a maximum penalty of imprisonment for five years.

1.3 This Report considers the arguments for retaining or repealing s 316. The Commission recommends that s 316(1)
be repealed and that s 316(2) be amended.

THE CONDUCT OF THE REFERENCE TO DATE

1.4 On 1 August 1997 the Commission received a reference from the Attorney General, the Hon Jeff Shaw QC MLC, to inquire into and report on whether the offences in s 316 should be abolished or amended.

1.5 During September and October 1997, the Commission circulated the terms of reference and invited initial submissions. The Commission published a Discussion Paper on s 316 in December 1997.¹ The Discussion Paper set out a number of options for reform, and invited further submissions.

1.6 In May 1998, the Commission consulted legal practitioners and judges with practical experience of s 316 on their views on the operation of the section and the need for reform. This Report sets out arguments put forward in the submissions and during the consultation process for consideration, but the Commission does not necessarily accept all of these arguments. A list of submissions appears as Appendix “A” to this Report. A list of consultations appears as Appendix “B”.

Legislative action since the Discussion Paper was published

1.7 When the Discussion Paper was published in December 1997, the Crimes Legislation Amendment Act 1997 (NSW), which amended s 316, had received the royal assent and was awaiting proclamation. This Act was proclaimed on 30 March 1998.²
It amended s 316 to provide that the approval of the Attorney General is required for the prosecution of people who acquire information or beliefs about the commission of serious offences in the course of a prescribed profession or vocation.³ Regulations passed when this Act was proclaimed prescribe legal and medical practitioners, nurses, psychologists, social workers and counsellors, clergy and professional or academic researchers for the purpose of this amendment.⁴

STRUCTURE OF THIS REPORT

1.8 This Report adopts the following structure:

• Chapter 1 gives an overview of s 316 and the course of the reference.
• Chapter 2 sets out s 316, including the amendments to the section which came into force after the Discussion Paper was published in December 1997, and summarises the available statistical information on prosecutions under s 316.
• Chapter 3 considers the arguments for and against further reform and contains the Commission’s recommendations.