Concealing A Serious Offence: When Not reporting a Crime Could Land you in Gaol
You have witnessed a serious offence like a robbery or a sexual assault. Should you report it to police or can you remain an innocent bystander? When is it against the law not to report a crime to the police?
It is easy to report certain criminal transgressions to the police like child abuse or sexual assault. However, others may be much more difficult to report. This is especially true when reporting a crime could compromise a person’s safety and security.
Sometimes reporting an offence poses ethical concerns as well, like giving evidence against a loved one; or having to choose between reporting a crime and keeping your job.
Being a part of society comes with it the moral responsibility to help your fellow community members be safe and free from harm, which could mean bringing offenders to the attention of law enforcement. However, the law is so complex that often people do not realize that if they know or even just believe someone has committed a serious indictable offence that it is a crime not to tell law enforcement.
There are a lot of incidents that go unreported for one reason or another. The sexual abuse scandal of clergy like the upcoming trial of Cardinal George Pell from within the Catholic Church is a good example of this. There is a lot of institutional abuse that goes on. Whose responsibility is it to report these offences to police?
Other examples of possible charges under concealing a serious offence include: knowing your co-worker is embezzling the company or that your long-time friend is selling meth and not reporting these crimes to the police.
What happens if you are one of many witnesses to a crime? Do you still need to report it if there are other people who have the potential for reporting it as well?
When can you be charged for concealing a serious offence?
In NSW concealing a serious indictable offence falls under SECT 316 of the CRIMES ACT 1900. According to (1) of this Act, if a person knows or believes another person has committed a serious indictable offence and 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 report it to the police or other appropriate authority, that other person is liable to imprisonment for 2 years.
Under this SECT 316 (2) of this Act, 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.
When it comes to concealing an indictable offence, a person does not need to actually witness the commission of the offence for someone to qualify to be charged. However, they must have knowledge rather than just a suspicion of it.
In a charge of concealing a serious offence, the crown only has to prove three things:
- that a felony was committed,
- the accused had knowledge or belief of the felony and
- concealed his or her knowledge of it from the police.
Keep in mind though that conceal does not always assume conscious intent. For example, seeing a serious car accident and leaving without giving evidence to police because you will be late for work does not necessarily mean you had a conscious intent not to report the crime. You might have believed you did not have a duty to report because there were other witnesses at the scene.
Also a person is not absolved from his or her duty to report if his or her knowledge of the crime is not complete. For example, if the person knows a crime has been committed but does not know who committed the crime or does not know all the details of the crime than that person still has a duty to report.
However, the person is not obliged to tell the police what law enforcement already knows, or what he or she believes they already know.
A person also cannot be charged under this offence even if he or she deliberately refrained from inquiring so as not to have knowledge of the offence. For example, if someone had a sense that an offence occurred but did not ask if a crime had been committed or details of that crime, then he or she cannot be charged because they do not have actual knowledge of the offence. In this case the crown must prove actual knowledge.
Defences for a charge of concealing an indictable offence
There are certain defences available for concealing a crime. They include:
- the privilege against self-incrimination
- a genuine belief that disclosure would endanger a third party
- information obtained in the course of practising or following a profession (i.e. lawyer, clergy, social worker, psychologist, academic researcher, medical practitioner, etc.).
You could also defend this charge by arguing:
- the information you withheld would not have been of material assistance;
- you had a reasonable excuse for not bringing the information to the attention of the police; or
- you did not actually know or believe that someone had committed a serious indictable offence.
Family ties are not viewed as a reasonable defence. But a defense of duress or necessity can be used if the accused or his or her family received a death threat or were threatened with serious harm.
Finally, the obligation to report a serious indictable offence sits in a precarious position between the right to silence and privilege against self-incrimination. Sometimes an offender may actually be in a better position than that of an observer of a crime. For example, in Petty and Maiden v. The Queen the right to silence constituted a reasonable excuse for committing the common law offence misprision of felony.
However, authorities in this case suggested that the defence could not be used if the crime that the person would be incriminating him or herself against is completely unrelated to the concealed offence or if there is a large discrepancy between the magnitude of the concealed offence and the apprehended prosecution.
Have you been witness to a serious criminal offence and are not sure what your legal obligations are? Call one of our legal experts at LY Lawyers today for a free consultation.