Is it ever against the Law not to Report an Alleged Crime?

The NSW police service encourages the reporting of crimes.

Police rely upon community tip-offs, particularly via Crime Stoppers which is the NSW Police Force community-based initiative for crime reporting.

According to the NSW Police website, Crime Stoppers has contributed to 4,571 arrests, 16,000 charges and millions of dollars of drug being seized.

Crime Stoppers allows people to report crimes anonymously.

But there are many reasons why you might not report a crime.

You may not want to be involved, or may be too afraid, or may feel you might be mistaken, or may want to protect a friend or family member.

While reporting a serious crime may often be the right this to do, is it your legal obligation as well?

According to the NSW Crimes Act, ‘concealing a serious indictable offence’ is a crime in certain circumstances.

Under section 316, anyone who knows or believes that a serious indictable offence has been committed and has material information that could assist with the apprehension or prosecution or conviction of the offender must bring that information to the attention of police or another appropriate body.

A serious indictable offence is one that comes with a maximum penalty of 5 years or more and includes a wide-range of offences, such as:

• Larceny (stealing) including stealing from an employer,
• Break & enter,
• Most assaults,
• Most drug charges (but not drug possession) and
• Fraud

The failure to any report such an offence, without a reasonable excuse, comes with a maximum penalty of 2 years’ imprisonment.

An exception to this rule is where the information was received while acting in a certain ‘prescribed profession’, which includes as a lawyer, doctor, nurse, psychologist, social worker, clergy, arbitrator, mediator etc.

Such people can only be prosecuted with the approval of the Attorney General.

There are some limited immunities when it comes to testifying, too.

For example, clergy who have learnt of a crime through confession are exempt from giving evidence in court.

Does my profession require me to report?

Some people are obligated to participate in mandatory reporting by virtue of their job description.

This is the case all around Australia, although reporting requirements differ from state to state.

This is a separate duty to the one laid out in section 316 of the Crimes Act.

In NSW, a teacher, doctor, nurse or police officer who comes across a child whom they suspect on reasonable grounds to be at risk of significant harm must report, although the reports can be made anonymously.

This duty does not currently carry a criminal penalty, unless it is believed that the child has already been subjected to abuse that constitutes a ‘serious indictable offence’.

However, an employer or professional body can carry out disciplinary action against a person in any of those categories who fails to report their suspicions.

It may also result in civil claims due to negligence if, for example, a child suffers harm due to the failure to report.

Are people actually prosecuted under section 316?

Section 316 was introduced to the Crimes Act in 1990, but attracted significant media attention in 2012 after a priest was charged with concealing the sexual abuse of another priest.

74-year-old Priest Tom Brennan was the first priest to be charged with covering up sexual abuse.

However, Brennan dies from cancer just weeks after the charges were laid.

While this was not the first person to be prosecuted under section 316, it certainly put the provision in the spotlight.

In the first five years since its introduction, there were 109 prosecutions under this section, and 91 suspects pleaded guilty.

14 of those people received prison sentences.

Should it remain an offence?

In 1999, the NSW Law Reform Commission recommended abolishing the offence of concealing a crime, unless a person concealed it in order to obtain an advantage (for example, a bribe in order to keep their mouth shut).

The legislation uses the word ‘concealing,’ which would seem to imply that the person who knows or suspects the crime has actively done something to hide it.

However, reading the statute, it is clear that the offence of ‘concealing an indictable offence’ may apply even if the person is an innocent bystander, and the crime is the mere fact of not reporting.

The courts have said that there are two important provisos:

1. The person must have had subjective knowledge of the commission of a offence, not mere suspicion, and
2. The ‘material facts’ must not already known by police.

Although there may be a moral duty to report some crimes, there is a strong argument that failing to do so should not expose a person to a criminal prosecution and the risk of a prison sentence.

As mentioned above, there are many good reasons why a person may not want to report a crime, yet those reasons may not be sufficient to escape liability.

Also, many people do not know which crimes are indictable (which means they can be decided in a higher court) let alone which ones are ‘serious indictable offences’ – and must therefore be reported.

What do you think, should it be a crime punishable by two years in prison if you fail to report a serious crime?