Going to Court? Book Your Free First Appointment

Criminal Lawyers for Concealing Child Abuse Offence | Section 316A(1) Crimes Act 1900

Concealing a child abuse offence is a crime under section 316A(1) of the Crimes Act 1900 which carries a maximum penalty of:

  • 2 years in prison where the maximum penalty for the child abuse concealed was less than 5 years in prison, or
  • 5 years in prison where the maximum penalty for the child abuse offence concealed was 5 years or more prison.

The prosecution is required to prove a number of facts beyond a reasonable doubt in order to establish the offence, and a person is entitled to an acquittal if they are unable to do so.

There are also a number of legal defences available to those who are going to court for the offence.

If you have been charged with concealing a child abuse offence, call Sydney Criminal Lawyers anytime on 02 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer who will review the allegations and advise you of your options and the best way forward.

Read on for more information about the offence itself, the matters that the prosecution needs to prove, your options, the available defences and the applicable penalties.

The Law

What is Concealing a Child Abuse Offence?

Concealing a child abuse offence is a crime under section 316A(1) of the Crimes Act 1900 which carries a maximum penalty of:

  • 2 years in prison where the maximum penalty for the child abuse concealed was less than 5 years in prison, or
  • 5 years in prison where the maximum penalty for the child abuse offence concealed was 5 years or more prison.

The section states that a person is guilty of the offence if he or she:

  1. Was an adult,
  2. Knew, believed or ought reasonably to have known that a child abuse offence had been committed,
  3. Knew, believed or ought reasonably to have known that he or she had information which might be of material assistance to arrest, prosecute or convict the offender,
  4. Failed to bring the information to the attention of an NSW police officer as soon as practicable after it was obtained, and
  5. Had no reasonable excuse for the failure.

Section 316A makes clear that the reporting of information about a child abuse offence does not constitute unprofessional conduct or a breach of professional ethics, nor does it render you the subject of civil liability, such as liability for defamation, provided your reporting was in good faith.

It further states that a prosecution cannot be commenced without the DPP’s approval if the information was obtained through prescribed professions, callings and vocations, which include medical practitioners, lawyers and members of the clergy.

What is a Child Abuse Offence?

A child abuse offence is:
(a) The murder or manslaughter of a child (including infanticide under section 22A of the Act),
(b) Any of the following offences where the victim is a child:
    (i) Intent to murder under section 27 of the Act, being administering a poison or destructive thing or wounding or causing grievous bodily harm with intent to murder,
    (ii) Intent to murder under section 29 of the Act, being attempting to administer a poison or destructive      thing, or shooting at or discharging firearms, or drowning, suffocating or strangling, with intent to murder,
    (iii) Wounding or grievous bodily harm with intent under section 33,
    (iv) Reckless wounding or grievous bodily harm under section 35,
    (v) Choking, strangling or suffocation under section 37,
    (vi) Using an intoxicating substance to commit an indictable offence under section 38,
    (vii) Spiking drink or food under section 38A,
    (viii) Using poison to endanger life or inflict grievous bodily harm under section 39,
    (ix) Using poison to injure or cause distress or pain under section 41,
    (x) Poisoning water supply under section 41A,
    (xi) Failing to provide the necessities of life under section 44,
    (xii) Female genital mutilation under section 45,
    (xiii) Removing person from state for female genital mutilation under section 45A,
    (xiv) Causing bodily injury by gunpowder under section 46,
    (xv) Assault occasioning actual bodily harm under section 59,
    (xvi) Assaults at schools under section 60E,
    (xvii) Kidnapping under section 86,
    (xviii) Voyeurism under section 91J
    (xix) Sexual assault under section 61i,
    (xx) Aggravated sexual assault under section 61J,
    (xxi) Aggravated sexual assault in company under section 61JA,
    (xxii) Assault with intent to have sexual intercourse under section 61K,
    (xxiii) Sexual Touching under section 61KC, 66DA and 66DB,
    (xxiv) Aggravated sexual touching under section 61KD,
    (xxv) Sexual act under section 61KE, 66DC and 66DD,
    (xxvi) Aggravated sexual act under section 61KF and 66DE,
    (xxvii) Sexual intercourse with a child under sections 66A and 66C,
    (xxviii) Attempting to have sexual intercourse with a child under sections 66B and 66D,
    (xxix) Sexual act for production of child abuse material under section 66DF,
    (xxx) Persistent sexual abuse of a child under section 66EA,
    (xxxi) Procuring or grooming a child under 16 for unlawful sexual activity under section 66EB,
    (xxxii) Grooming a person for unlawful sexual activity with a child under the person’s authority under section 66EC,
    (xxxiii) Sexual intercourse with a young person under special case under section 73 and 73A,
    (xxxiv) Incest under section 78A
    (xxxv) Attempted incest under section 78B,
    (xxxvi) Sexual assault by forced self manipulation under section 80A,
    (xxxvii) Causing sexual servitude under section 80D,
    (xxxviii) Conduct of business involving sexual servitude under section 80E,
    (xxxix) Incitement to commit sexual servitude under section 80G,
    (xl) Promoting or engaging in acts of child prostitution under section 91D,
    (xli) Obtaining benefit from child prostitution under section 91E, and
    (xlii) Using premises for child prostitution under section 91F,
(c) Any of the following offences:
    (i) Injuring a child at the time of birth under section 42,
    (ii) Abandoning or exposing a child aged under 7 years, under section 43,
    (iii) Failing parental responsibility to care for a child under section 43A,
    (iv) Using a child to produce child abuse material under section 91G, and
    (v) Producing, disseminating or possessing child abuse material under section 91H,
(d) Former sexual offences which relate to a child,
(e) Any attempt to commit any of the above offences, and
(f) Any offence under previous law which is substantially similar to any of the offences above.

What are the Penalties?

The maximum penalty for concealing a child abuse offence is:

  • 2 years in prison where the maximum penalty for the child abuse concealed was less than 5 years in prison, or
  • 5 years in prison where the maximum penalty for the child abuse offence concealed was 5 years or more prison.

However, is important to bear in mind that this is the maximum sentence that can be imposed, and that the court can apply any of the following penalties for the offence:

What Does the Prosecution Have to Prove?

For a person to be found guilty of concealing a child abuse offence, the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond reasonable doubt that the defendant:

  1. Was an adult,
  2. Knew, believed or ought reasonably to have known that a child abuse offence had been committed,
  3. Knew, believed or ought reasonably to have known that he or she had information which might be of material assistance to arrest, prosecute or convict the offender,
  4. Failed to bring the information to the attention of an NSW police officer as soon as practicable after it was obtained, and
  5. Had no reasonable excuse for the failure.

The prosecution will fail if it cannot prove each of these elements to the required standard.

What are the Defences?

In addition to the requirement to prove each element of the offence, the prosecution must also disprove any of the following defences if properly raised:

  • Duress, which is where you were threatened or coerced,
  • Necessity, where the act was necessary to avert danger, and
  • Self-defence, where you engaged in the act to defend yourself or another

It must disprove any such defences beyond all reasonable doubt.

A further available defence is to prove you had a ‘reasonable excuse’ for your conduct, which includes where:

  1. You believed on reasonable grounds that police already had the information,
  2. You reported the information through other over legislative mechanisms, such as those in the Children and Young Persons (Care and Protection) Act 1998, or the Children’s Guardian Act 2019, or Part 3A of the Ombudsman Act 1974 before it was repealed, or you believed on reasonable grounds that another had reported it in that way,
  1. You had reasonable grounds to fear for the safety of any person if you were to report the information,
  2. You were under the age of 18 when you obtained the information,
  3. The alleged victim was an adult at the time you obtained the information, and you believed on reasonable grounds that he or she did not want it reported, or
  4. The information related to an assault at a school, and:
  • It resulted in no more than a minor injury
  • The parties were both school students under the age of 18 years
  • You were a member of staff at the school, and
  • You took reasonable steps to report the information to the incident reporting unit in the case of a government school, or the principal or governing body in the case of a non-government school.

Your Options in Court

Pleading Not Guilty

Before you can be found guilty of concealing a child abuse offence, the prosecution must prove beyond reasonable doubt that:

  1. You were an adult,
  2. You knew, believed or ought reasonably to have known that a child abuse offence had been committed,
  3. You knew, believed or ought reasonably to have known that you had information which might be of material assistance to arrest, prosecute or convict the offender,
  4. You failed to bring the information to the attention of an NSW police officer as soon as practicable after you obtained it, and
  5. You had no reasonable excuse for your failure.

There are a number of ways to defend charges of concealing a child abuse offence, including raising the fact that:

  1. The prosecution cannot prove you received information that could be of material assistance in arresting, prosecuting or convicting another person for a child abuse offence,
  2. The prosecution cannot prove you were an adult when you received any such information,
  3. The prosecution cannot prove you believed or ought reasonably to have believed that the information you obtained could be of material assistance in arresting, prosecuting or convicting another for a child abuse offence,
  4. The prosecution cannot prove you failed to bring the information you obtained to the attention of a New South Wales police officer,
  5. Where it is alleged you brought the information to the attention of a New South Wales police officer but did not do this as soon as practicable, that the prosecution cannot prove the information was not brought as soon as practicable,
  6. That the prosecution cannot prove you did not have a reasonable excuse for your conduct. In relation to the last point, the legislation makes clear that any of the following constitute a reasonable excuse:
  7. You believed on reasonable grounds that police already had the information,
  8. You reported the information through other over legislative mechanisms, Such as those in the Children and Young Persons (Care and Protection) Act 1998, or the Children’s Guardian Act 2019, or Part 3A of the Ombudsman Act 1974 before it was repealed, or you believed on reasonable grounds that another had reported it in that way,
  9. You had reasonable grounds to fear for the safety of any person if you were to report the information,
  10. You were under the age of 18 when you obtained the information,
  11. The alleged victim was an adult at the time you obtained the information, and you believed on reasonable grounds that he or she did not want it reported, or
  12. The information related to an assault at a school, and:
  • It resulted in no more than a minor injury
  • The parties were both school students under the age of 18 years
  • You were a member of staff at the school, and
  • You took reasonable steps to report the information to the incident reporting unit in the case of a government school, or the principal or governing body in the case of a non-government school.

If any of the above facts prevail, you must be found not guilty of the offence.

A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn, or fight to have it thrown out of court if it proceeds to a defended hearing or trial.

Pleading Guilty

Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.

In that case, your lawyer may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.

Your lawyer can also guide you on obtaining materials that can be handed up to the court during your sentencing – including a letter of apologycharacter references and any documents from counsellors or health care professionals you have consulted.

These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.

By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.

You will also be spared the time, expense and stress of a defended hearing or trial.

Frequently Asked Questions

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.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    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.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  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.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    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.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  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.

    Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

    No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

    The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

    Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.

    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

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

    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
    • Liverpool, directly opposite Liverpool Local Court, and
    • Parramatta, near the justice precinct.

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

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    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.

What is a ‘reasonable excuse’ for not reporting information?

The legislation makes clear that a ‘reasonable excuse’ for failing to report a child abuse offence includes where

  1. You believed on reasonable grounds that police already had the information,
  2. You reported the information through other over legislative mechanisms, such as those in the Children and Young Persons (Care and Protection) Act 1998, or the Children’s Guardian Act 2019, or Part 3A of the Ombudsman Act 1974 before it was repealed, or you believed on reasonable grounds that another had reported it in that way,
  3. You had reasonable grounds to fear for the safety of any person if you were to report the information,
  4. You were under the age of 18 when you obtained the information,
  5. The alleged victim was an adult at the time you obtained the information, and you believed on reasonable grounds that he or she did not want it reported, or
  6. The information related to an assault at a school, and:
  • It resulted in no more than a minor injury
  • The parties were both school students under the age of 18 years
  • You were a member of staff at the school, and
  • You took reasonable steps to report the information to the incident reporting unit in the case of a government school, or the principal or governing body in the case of a non-government school.
What is a ‘child abuse offence’? 
A ‘child abuse offence’ is any of the following:
(g) The murder or manslaughter of a child (including infanticide under section 22A of the Act),
(h) Any of the following offences where the victim is a child:
    (xliii) Intent to murder under section 27 of the Act, being administering a poison or destructive thing or wounding or causing grievous bodily harm with intent to murder,
    (xliv) Intent to murder under section 29 of the Act, being attempting to administer a poison or destructive thing, or shooting at or discharging firearms, or drowning, suffocating or strangling, with intent to murder,
    (xlv) Wounding or grievous bodily harm with intent under section 33,
    (xlvi) Reckless wounding or grievous bodily harm under section 35,
    (xlvii) Choking, strangling or suffocation under section 37,
    (xlviii) Using an intoxicating substance to commit an indictable offence under section 38,
    (xlix) Spiking drink or food under section 38A,
    (l) Using poison to endanger life or inflict grievous bodily harm under section 39,
    (li) Using poison to injure or cause distress or pain under section 41,
    (lii) Poisoning water supply under section 41A,
    (liii) Failing to provide the necessities of life under section 44,
    (liv) Female genital mutilation under section 45,
    (lv) Removing person from state for female genital mutilation under section 45A,
    (lvi) Causing bodily injury by gunpowder under section 46,
    (lvii) Assault occasioning actual bodily harm under section 59,
    (lviii) Assaults at schools under section 60E,
    (lix) Kidnapping under section 86,
    (lx) Voyeurism under section 91J
    (lxi) Sexual assault under section 61i,
    (lxii) Aggravated sexual assault under section 61J,
    (lxiii) Aggravated sexual assault in company under section 61JA,
    (lxiv) Assault with intent to have sexual intercourse under section 61K,
    (lxv) Sexual Touching under section 61KC, 66DA and 66DB,
    (lxvi) Aggravated sexual touching under section 61KD,
    (lxvii) Sexual act under section 61KE, 66DC and 66DD,
    (lxviii) Aggravated sexual act under section 61KF and 66DE,
    (lxix) Sexual intercourse with a child under sections 66A and 66C,
    (lxx) Attempting to have sexual intercourse with a child under sections 66B and 66D,
    (lxxi) Sexual act for production of child abuse material under section 66DF,
    (lxxii) Persistent sexual abuse of a child under section 66EA,
    (lxxiii) Procuring or grooming a child under 16 for unlawful sexual activity under section 66EB,
    (lxxiv) Grooming a person for unlawful sexual activity with a child under the person’s authority under section 66EC,
    (lxxv) Sexual intercourse with a young person under special case under section 73 and 73A,
    (lxxvi) Incest under section 78A
    (lxxvii) Attempted incest under section 78B,
    (lxxviii) Sexual assault by forced self-manipulation under section 80A,
    (lxxix) Causing sexual servitude under section 80D,
    (lxxx) Conduct of business involving sexual servitude under section 80E,
    (lxxxi) Incitement to commit sexual servitude under section 80G,
    (lxxxii) Promoting or engaging in acts of child prostitution under section 91D,
    (lxxxiii) Obtaining benefit from child prostitution under section 91E, and
    (lxxxiv) Using premises for child prostitution under section 91F,
(i) Any of the following offences:
    (vi) Injuring a child at the time of birth under section 42,
    (vii) Abandoning or exposing a child aged under 7 years, under section 43,
    (viii) Failing parental responsibility to care for a child under section 43A,
    (ix) Using a child to produce child abuse material under section 91G, and
    (x) Producing, disseminating or possessing child abuse material under section 91H,
(j) Former sexual offences which relate to a child,
(k) Any attempt to commit any of the above offences, and
(l) Any offence under previous law which is substantially similar to any of the offences above.

Related Videos

Going to Court? Call For Your Free First Appointment