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Where am I now? Lawlink > Law Reform Commission > Publications > 2. The Offence of Concealment of a Serious Offence
Report 93 (1999) - Review of Section 316 of the Crimes Act 1900 (NSW)
2. The Offence of Concealment of a Serious Offence
BACKGROUND TO SECTION 316
2.1 Section 316 is part of a package of public justice offences which was inserted into the Crimes Act 1900 (NSW) in 1990.1 The purpose of the package 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
2.2 Section 316 replaced the common law misdemeanours of misprision of felony and compounding a felony.3 Misprision of felony 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 to do so. Compounding a felony was constituted by agreement for consideration not to prosecute or to impede prosecution for a felony.4
THE PROVISION
2.3 Section 316 provides:
(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.
(4) A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.
(5) The Governor may make regulations, not inconsistent with this Act, prescribing a profession, calling or vocation as referred to in subsection (4).
2.4 “Serious offence” means any offence that is punishable by penal servitude or imprisonment for five years or more.5 The prosecution does not have to prove that the defendant knew that the offence was a serious offence.6
2.5 Defendants charged with indictable offences are normally tried by a jury in the higher courts.7 However, certain indictable offences are triable summarily by a magistrate in the Local Courts.8 The maximum penalty which magistrates are empowered to impose is imprisonment for two years.9 Where a defendant charged with an indictable offence punishable by imprisonment for five years or more is tried summarily, the offence is still considered a “serious offence” for the purpose of s 316, although the lower maximum penalty applies.10
2.6 Sections 316(4) and (5) are recent amendments which came into force on 30 March 1998.11 These subsections were introduced following a review of s 316 by a Working Party of the Criminal Law Review Division of the Attorney General’s Department in 1996. The Working Party recommended that the Director of Public Prosecutions be required to consent to s 316 prosecutions of prescribed categories of people.12 However, s 316(4) provides that the Attorney General must approve prosecutions of people in the prescribed categories.
2.7 The following professions and vocations have been prescribed under s 316(5):13
- legal practitioners;
- medical practitioners;
- psychologists;
- nurses;
- social workers, including victim support workers and counsellors;
- clergy; and
- academic and professional researchers.
2.8 It is also an offence for a person to fail or refuse to comply with a request by a police officer to state his or her name and address, if the police officer has reasonable grounds for believing that the person may be able to assist in the investigation of an alleged indictable offence because the person was in the vicinity when the alleged offence occurred.14 This offence was introduced following the publication of the Commission’s Discussion Paper on s 316. Consideration of this offence falls outside the scope of this reference.
PROSECUTIONS UNDER SECTION 31615
2.9 There were 112 prosecutions under s 316 in the Local Courts in the five year period from September 1994 to August 1999. In a longer reporting period from November 1990 (when s 316 came into force) to December 1998, there were 50 prosecutions in the higher courts.
Local Courts
2.10 There were 109 prosecutions under s 316(1) in the Local Courts between September 1994 and August 1999. The defendant pleaded guilty in 91 cases. Sixty-eight offenders had at least one prior conviction of some type, although the available statistical information does not indicate the type of prior offences. Only seven offenders were charged with multiple counts. The penalty imposed in most cases in the Local Courts was either a bond or a fine, most commonly $500.00. Fourteen prison sentences were imposed on offenders. The minimum prison sentences imposed ranged from two months to 12 months, although most minimum sentences were for six months or less. A more detailed breakdown of the penalties imposed is set out in Table 1.
Table 1: Penalties for conviction under s 316(1) in the Local Courts from September 1994 to August 199916
| Outcome | Number of cases |
| Bond under s 556A or 558 | 35 |
| Fine ($100.00 - $2,000.00) | 25 |
| Community service order (100 - 300 hours) | 15 |
| Prison sentence | 14 |
| Bond under s 558 and fine | 8 |
| Periodic detention | 6 |
| Dismissal under s 556A | 4 |
| Home detention | 1 |
| Rise of court | 1 |
2.11 There were three prosecutions under s 316(2) in the Local Courts from September 1994 to August 1999. The accused pleaded guilty in two cases. Two offenders had at least one prior conviction of some type, although again, the available statistical information does not indicate the type of prior offences. No offenders were charged with multiple counts. A fine of $300.00 was imposed in one case. One offender received a bond under s 558 of the Crimes Act 1900 (NSW) and in the other case a compound penalty of a bond and a fine was imposed.
Higher courts
2.12 There were 50 cases under s 316(1) in the higher courts between November 1990 and December 1998. The accused pleaded guilty in all but one case. Eighteen offenders had at least one prior conviction, although none was for the same offence. Six offenders were charged with multiple counts. The most common penalty imposed on offenders in the higher courts was a bond. Six prison sentences were imposed, with minimum terms ranging from six to 18 months. A more detailed breakdown of penalties imposed is set out in Table 2.
Table 2: Penalties for conviction under s 316(1) in the higher courts from November 1990 to December 199817
| Outcome | Number of cases |
| Bond under s 556A or s 558 | 29 |
| Community service order (50 - 500 hours) | 10 |
| Prison | 6 |
| Bond under s 558 and fine | 3 |
| Periodic detention | 1 |
| Dismissal under s 556A | 1 |
2.13 There have been no prosecutions under s 316(2) in the higher courts since November 1990 when the section came into force.
FOOTNOTES
1. Crimes Act 1900 (NSW) Part 7, inserted by the Crimes (Public Justice) Amendment Act 1990 (NSW) s 3, Sch 1.
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. J Smith and S Hogan, Criminal Law (7th ed, Butterworths, London, 1992) at 165.
5. Crimes Act 1900 (NSW) s 311(1).
6. Crimes Act 1900 (NSW) s 313.
7. Criminal Procedure Act 1986 (NSW) s 4.
8. Criminal Procedure Act 1986 (NSW) s 33C.
9. Criminal Procedure Act 1986 (NSW) s 33J.
10. DPP v Sinclair (New South Wales, Supreme Court, No BC9701549, Sperling J, 1 April 1997, unreported) at 2.
11. New South Wales, Government Gazette No 62 of 27 March 1998 at 1823.
12. Working Party of the Criminal Law Review Division on Section 316 of the Crimes Act, Minutes of Meeting, 14 March 1996 at 2.
13. Crimes (General) Amendment (Concealment of Offences) Regulation 1998 (NSW) cl 2, Sch 1.
14. Crimes Act 1900 (NSW) s 563, inserted by the Crimes Legislation Amendment (Police and Public Safety) Act 1998 s 4, Sch 2. This provision commenced on 1 July 1998: New South Wales, Government Gazette No 97 of 26 June 1998 at 4422.
15. Data referred to in para 2.9 to 2.13 obtained from the Judicial Commission of NSW Judicial Information Research System Sentencing Statistics Database.
16. Section numbers refer to the Crimes Act 1900 (NSW).
17. Section numbers refer to the Crimes Act 1900 (NSW).
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