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Section 273B.5 Criminal Code Act 1995
Failing to Report Child Sexual Abuse Offence

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Failing to report a reasonable belief of a child sexual abuse offence, is a crime under section 273B.5(1) of the Criminal Code Act 1995 (Cth),  which carries a maximum penalty of 3 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were a Commonwealth officer
  2. A person under the age of 18 years was under your care, supervision or authority in your capacity as a Commonwealth officer
  3. You knew information that would lead a reasonable person to believe that another person, had engaged or would engage in conduct in relation to the child
  4. Such conduct would, if engaged in constitute a child sexual abuse offence, and
  5. You failed to disclose the information as soon as practicable to the Police Force or Police Service of a State or Territory, or the Australian Federal Police

The definition of ‘Commonwealth officer’ is broad and includes:

  1. Any Commonwealth public service employee
  2. Any Minister or Parliamentary Secretary
  3. Any member of the Australian Federal Police or Australian Defence Force, and
  4. Persons who hold or perform the duties of an office, established by or under a law of the Commonwealth

A ‘child sexual abuse offence’ encompasses:

  1. Any Commonwealth child sex offence within the meaning of the Crimes Act 1914, and
  2. Any State or Territory registrable child sex offence

You are not guilty if you establish ‘on the balance of probabilities’ that:

  1. You reasonably believed the information was already known, by police or a person or body to which disclosure was required by law
  2. You gave the information to a person or body to which disclosure was required
  3. You reasonably believed the disclosure would risk the safety of a person other than the potential offender, or
  4. The information was already in the public domain

You are not excused from disclosing the information simply because, it might tend to incriminate you or expose you to a penalty or other liability.

You may be found guilty of the offence whether or not:

  1. The child or potential offender could be identified as a specific person
  2. Any person actually believed or suspected the offence was or could be committed, or
  3. A child sexual abuse offence was actually committed in relation to the child

Proceedings for the offence can only be commenced with the Attorney-General’s consent. However, a person may nevertheless be arrested, charged with or remanded for the offence, until the Attorney General makes a decision in that regard.

Duress is a legal defence to the charge

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Failing to report a reasonable suspicion of a child sexual abuse offence, is a crime under section 273B.5(2) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were a Commonwealth officer
  2. A person under the age of 18 years was under your care, supervision or authority in your capacity as a Commonwealth officer
  3. You knew information that would lead a reasonable person to suspect that another person had engaged or would engage in conduct in relation to the child
  4. Such conduct would, if engaged in constitute a child sexual abuse offence, and you failed to disclose the information as soon as practicable to the Police Force or Police Service of a State or Territory or the Australian Federal Police

The definition of ‘Commonwealth officer’ is broad and includes:

  1. Any Commonwealth public service employee
  2. Any Minister or Parliamentary Secretary
  3. Any member of the Australian Federal Police or Australian Defence Force, and
  4. Persons who hold or perform the duties of an office established by or under a law of the Commonwealth

A ‘child sexual abuse offence’ encompasses:

  1. Any Commonwealth child sex offence within the meaning of the Crimes Act 1914, and
  2. Any State or Territory registrable child sex offence

You are not guilty if you establish ‘on the balance of probabilities’ that:

  1. You reasonably believed the information was already known by police or a person or body to which disclosure was required by law
  2. You gave the information to a person or body to which disclosure was required
  3. You reasonably believed the disclosure would risk the safety of a person other than the potential offender, or
  4. The information was already in the public domain

You are not excused from disclosing the information simply because it might tend to incriminate you or expose you to a penalty or other liability.

You may be found guilty of the offence whether or not:

  1. The child or potential offender could be identified as a specific person
  2. Any person actually believed or suspected the offence was or could be committed, or
  3. A child sexual abuse offence was actually committed in relation to the child

Proceedings for the offence can only be commenced with the Attorney-General’s consent. However, a person may nevertheless be arrested, charged with or remanded for the offence until the Attorney General makes a decision in that regard

Duress is a legal defence to the charge

If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Failing to Report Child Sexual Abuse Offence matter, call Sydney Criminal Lawyers® today on (02) 9261 8881.

The Legislation

273B.5  Failing to report child sexual abuse offence

Offence based on reasonable belief

(1) A person (the defendant) commits an offence if:

(a) the defendant is a Commonwealth officer; and

(b) there is another person aged under 18 (the child) under the care or supervision of the defendant, in the defendant’s capacity as a Commonwealth officer; and

(c) the defendant knows of information that would lead a reasonable person to believe that a person (the potential offender):

(i) has engaged in conduct in relation to the child; or

(ii) will engage in conduct in relation to the child; and

(d) such conduct, if engaged in, would constitute a child sexual abuse offence; and

(e) the defendant fails to disclose the information, as soon as practicable after coming to know it, to:

(i) the police force or police service of a State or Territory; or

(ii) the Australian Federal Police.

Penalty: Imprisonment for 3 years.

Offence based on reasonable suspicion

(2) A person (the defendant) commits an offence if:

(a) the defendant is a Commonwealth officer; and

(b) there is another person aged under 18 (the child) under the care or supervision of the defendant, in the defendant’s capacity as a Commonwealth officer; and

(c) the defendant knows of information that would lead a reasonable person to suspect that a person (the potential offender):

(i) has engaged in conduct in relation to the child; or

(ii) will engage in conduct in relation to the child; and

(d) such conduct, if engaged in, would constitute a child sexual abuse offence; and

(e) the defendant fails to disclose the information, as soon as practicable after coming to know it, to:

(i) the police force or police service of a State or Territory; or

(ii) the Australian Federal Police.

Penalty: Imprisonment for 2 years.

Absolute liability

(3) Absolute liability applies to paragraphs (1)(d) and (2)(d).

Note: For absolute liability, see section 6.2.

Defences

(4) Subsection (1) or (2) does not apply if:

(a) the defendant reasonably believes that the information is already known:

(i) to the police force or police service of a State or Territory; or

(ii) to the Australian Federal Police; or

(iii) to a person or body to which disclosure of such information is required by a scheme established under, or for the purposes of, a law of a State or Territory, or of a foreign country (or part of a foreign country); or

(b) the defendant has disclosed the information to a person or body for the purposes of a scheme mentioned in subparagraph (a)(iii); or

(c) the defendant reasonably believes that the disclosure of the information would put at risk the safety of any person, other than the potential offender; or

(d) the information is in the public domain.

Note: A defendant bears an evidential burden in relation to a matter in this subsection: see subsection 13.3(3).

(5) An individual is not excused from failing to disclose information as mentioned in paragraph (1)(e) or (2)(e) on the ground that disclosing the information might tend to incriminate the individual or otherwise expose the individual to a penalty or other liability.

Note: For the admissibility in evidence of such information if disclosed in the course of protected conduct, and any information obtained as an indirect consequence, see subsections 273B.9(10) and (11).

Certain matters not required to be proved

(6) Subsection (1) or (2) applies:

(a) whether or not the child can be identified as a specific person; and

(b) whether or not any person actually believes or suspects the matter mentioned in paragraph (1)(c) or (2)(c); and

(c) whether or not the potential offender can be identified as a specific person; and

(d) whether or not a child sexual abuse offence is or was actually committed in relation to the child.

Alternative verdict

(7) If, on a trial of a person for an offence against subsection (1), the trier of fact:

(a) is not satisfied that the person is guilty of the offence against that subsection; and

(b) is satisfied beyond reasonable doubt that the person is guilty of an offence against subsection (2);
it may find the person not guilty of the offence against subsection (1) but guilty of the offence against subsection (2).

(8) Subsection (7) only applies if the person has been accorded procedural fairness in relation to the finding of guilt for the offence against subsection (2).

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

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    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

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  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

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    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

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  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

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  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

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    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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