Concealing a Serious Indictable Offence | Section 316(2) Crimes Act 1900
Section 316(1) of the Crimes Act of 1900 makes it illegal to hide a serious indictable crime. The maximum penalty for this crime is:
- 2 years in prison if the maximum sentence for the crime they hid was less than 10 years
- 3 years in prison if the maximum sentence for the crime they hid was more than 10 years but less than 20 years, or
- 5 years in prison, even though the maximum sentence for the crime was more than 20 years.
To prove the crime, the prosecution has to prove a number of facts beyond a reasonable doubt, and if they can't do that, the person is entitled to be set free.
There are also a number of ways to defend yourself in court if you are charged with the crime.
The Law
What does it mean to hide a serious indictable crime?
Under section 316(1) of the Crimes Act of 1900, it is a crime to hide a serious indictable crime.
In this section, it says that a person has broken the law if he or she:
- Was an adult at the time
- Knew or thought that another person had committed a serious indictable crime
- Knew or thought that he or she had information that could help with the arrest prosecution, or conviction of the offender
- Didn't tell law enforcement about the information
- Had no good reason for not telling them.
A "serious indictable offence" is a crime that can get you at least 5 years in prison as a maximum sentence. The covers most assault crimes (except for common assault), as well as other crimes against people (like detaining someone for personal gain or robbing them), drug crimes (except for drug possession), destroying or damaging property, and most crimes of dishonesty (eg larceny, embezzlement, fraud, break and enter etc).
For the purposes of this section, child abuse crimes like having a sexual relationship with a child, having child abuse materials, touching a child in a sexual way, etc. are not serious indictable crimes.
Section 316A of the Act says that it is a separate crime to hide a crime of child abuse.
No charges can be brought against someone for hiding a serious indictable crime without the approval of the Director of Public Prosecutions (DPP), if the relevant information was learned while the person was working as a lawyer or in another prescribed calling, profession, or vocation, like being a priest.
What is the punishment?
If you try to hide a serious indictable crime, you could get:
2 years in prison if the maximum sentence for the crime they hid was less than 10 years
3 years in prison if the maximum sentence for the crime they hid was more than 10 years but less than 20 years
5 years in prison if the maximum sentence for the crime they hid was more than 20 years.
But it's important to remember that these are the most severe punishments that can be given. The court can also use any of the following:
-Section 10: Order of Dismissal with Conditions
-Fine Order for Community Service
-Order for Strict Punishment
-Less time in prison
What does the prosecution need to prove?
For a person to be found guilty of hiding a serious indictable crime, the prosecution must prove beyond a reasonable doubt that each of the following are part of the crime:
- The accused was an adult,
- The defendant knew or thought that another person had committed a serious indictable crime.
- The defendant knew or thought that he or she had information that could help with the arrest, prosecution, or conviction of the offender for that crime.
The defendant did not tell law enforcement about that information. The defendant had no good reason for not telling law enforcement about that information.
If the prosecution can't prove each of these things to the required level, the case will be dropped.
A "serious indictable offence" is a crime that can get you at least 5 years in prison as a maximum sentence.
The crime does not include hiding a crime of child abuse, such as sexual contact with a child, child abuse material, or sexual contact with a child. Section 316A makes it a separate crime to hide these kinds of crimes.
Without the DPP's permission, no charges can be brought against an Australian lawyer or a member of the clergy.
What are the defences?
Your Choices in Court
Not Guilty Plea
Before you can be found guilty of hiding a serious indictable crime, the prosecution must prove beyond a reasonable doubt that:
- You were an adult
- You knew or thought that another person had committed a serious indictable crime
- You knew or thought that he or she had information that could help with the arrest, prosecution, or conviction of the offender for that crime
- You didn't tell law enforcement about that information
- You didn't have a good reason for not telling them.
You can defend yourself against a charge of hiding a serious indictable crime in a number of ways. For example, you can say:
- The government can't show that you were an adult at the time,
- The prosecution can't prove that you knew or thought that another person had committed a serious crime.
- The prosecution can't show that you knew or thought that he or she had information that could have helped catch or convict the criminal.
- The prosecution can't prove you didn't tell law enforcement about that information.
- The prosecution can't prove that you didn't tell law enforcement about the information because you had a good reason not to.
- You were a lawyer, a member of the clergy, or someone else on the list, and you were charged without the DPP's permission. - - - You have a good legal defence that the prosecution can't prove beyond a reasonable doubt.
If any of these things happen, you should not be found guilty of the crime.
A good lawyer will be able to write to the prosecution to try to get the case against you dropped, or they will fight to get it thrown out of court if it goes to a hearing or trial.
Guilty Plea
You might decide to plead guilty to the crime if the evidence against you is very strong.
In that case, your lawyer might be able to talk with the police about the "facts" to make the crime less serious.
Your lawyer can also help you get materials that can be given to the court during your sentencing, such as a letter of apology, references from people who know you well, and any documents from therapists or doctors you have seen.
Together, these pieces of evidence and your lawyer's convincing arguments in court can help make sure you get the lightest sentence possible given the situation.
By pleading guilty early, you could get a "discount" of up to 25% on your sentence. This could mean that you get a less severe punishment, like a section 10 dismissal or a conditional release order, instead of a harsher one.
You will also save time, money, and stress by not having to go to a hearing or trial to defend yourself.
