Media Release - Review of Section 316 of the Crimes Act 1900 (NSW) ( Friday January 14, 2000)

Commission recommends abolition of public justice offence


The NSW Law Reform Commission has recommended, in a report released today, that the offence of 'concealing a serious offence' should be abolished. The Commission found that the offence can operate unfairly in several situations. The offence, contained in section 316(1) of the NSW Crimes Act, occurs where a person knows or believes that a serious crime has been committed, and fails, without a reasonable excuse, to inform the police.
Under the present law, a domestic violence victim would commit the offence if she did not notify the police when she was threatened or assaulted by her husband. Where a person confided in family members about sex offences committed against them as a child, and they did not report the information, the family would also commit the offence.

The Commission found that the offence may also interfere with or inhibit important research. Potential research subjects for a study about the impact of policing on drug offences, when told of the obligation on research staff to report information about serious offences, may decide not to participate. University researchers have also found that the fact that their research may involve concealing offences prevented them from gaining approval for research projects from university ethics committees.

The offences applies to failure to report a 'serious offence', which is defined as any offence with a maximum penalty of 5 or more years imprisonment. A person who did not report the theft of a chocolate bar would be guilty of concealing a serious offence. The Commission found that most people in the community would not expect there to be a legal obligation to report such trivial offences.

While the NSW Police Service and the Office of the Director of Public Prosecutions favour retaining the offence, arguing that the offence encourages people to assist with the apprehension and prosecution of criminals, several submissions to the Commission expressed concern that it is open to misuse by police, who may use the offence as a threat or holding charge, to coerce witnesses and suspects into cooperating with investigations.

The Commission's report points out that there are numerous other offences which apply where people actually assist a person to commit a crime, hinder police investigations or interfere with the criminal justice system.

The Commission recommended that the more serious offence of concealing a serious offence in return for a benefit, contained in section 316(2), should be retained.

Copies of the report can be purchased from the Commission or accessed on the Commission's web site: www.lawlink.nsw.gov.au/lrc

Media comment:
BH: Peter Hennessy (Executive Director) or Ailsa Goodwin (Senior Legal Officer) on (02) 9228 8230