Hindering Investigation (NSW)

In New South Wales, it is an offence to hinder an investigation. It can be committed by way of hindering the investigation itself, discovery of evidence or the apprehension of a person. This particular offence relating to hindering investigations relates to investigations, evidence and apprehension of offenders for serious indictable offences only. 

The offence carries a maximum penalty of 7 years imprisonment.

What is the Offence of Hindering an Investigation?

The offence of Hindering an Investigation is contained in section 315 of the Crimes Act 1900 (NSW)  which states:

(1) A person who does anything intending in any way to hinder-

(a) the investigation of a serious indictable offence committed by another person, or

(b) the discovery of evidence concerning a serious indictable offence committed by another person, or

(c) the apprehension of another person who has committed a serious indictable offence,

The offence does not capture or cover conduct whereby a person simply refuses to or fails to provide information or evidence to law enforcement (although such may amount to a charge of Conceal Serious Indictable Offence.

The following acts may constitute an offence of Hindering an Investigation:

• Hiding someone at your beach house who the police were searching for in order to arrest them for a Supply Prohibited Drug offence;

• Taking the gun used in an attempted murder and burying it deep in the bush so it is not found by police; or

• Telling the police who are investigating the kidnapping of a person a fake story about that person telling you they were actually planning on going overseas and that you don’t think they were kidnapped at all.

What Must be Proven?

For a person to be found guilty of Hindering an Investigation the Prosecution must prove each of the following matters beyond a reasonable doubt:

• The person did something; and
• They did so intending (in any way) to hinder:
  • The investigation of a serious indictable offence committed by another person;
  • The discovery of evidence concerning a serious indictable offence committed by another person; or
  • The apprehension of another person who has committed a serious indictable offence.

A serious indictable offence is an offence that is punishable by a term of five years imprisonment or more. Where the underlying offence does not carry a maximum penalty of five years imprisonment or more, or if police are otherwise hindered in the execution of their duty, other ‘hinder’ offences such as the offence of Hindering Police in Execution of Duty or Hindering and obstruction of persons aiding law enforcement may apply.

When prosecuting this offence, it does not need to be proven that the person being investigated actually committed the offence they were being investigated or apprehended for. The legislation specifically provides that “a person is taken to have committed a serious indictable offence if a public officer (such as a police officer) is engaged in the detection or investigation of the person and suspects on reasonable grounds that the person has committed the offence.”

Which Court Will Hear the Matter?

This offence is a Table 1 offence, which means the matter will be finalised in the Local Court unless either the Prosecution or the Accused can elect to have it dealt with in the District Court. 

Possible Defences

The following defences may be available for a charge of Hindering an Investigation:

• You didn’t do a positive act or thing;
• You didn’t intend to hinder;
• What you intended to hinder was not either:
  • An investigation;
  • The discovery of evidence;
  • The apprehension of another person;
• The crime for which you intended to hinder police in investigating, discovering evidence or apprehending a person was not a serious indictable offence; or
• You merely refused or failed to divulge information or produce evidence to police (as opposed to actively hindering them). 

Common Questions about the Offence of Hindering an Investigation:

Will I receive a criminal conviction?

Probably. Where a person pleads guilty or is found guilty, a conviction and criminal record for this offence is very likely. However, it remains possible to avoid a conviction. If a person was to plead not guilty and was acquitted, they would not receive a conviction. 

In NSW, a Court can impose any of the following penalties for this charge.

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what a person does for a living. Some jobs require no criminal convictions, and a conviction might jeopardise a person’s employment or make it difficult to obtain visas for overseas travel. 

Will I go to Gaol?

Possibly. While most offenders are sentenced to a Community Corrections Order, a number of people get sentenced to gaol, or are made the subject of an Intensive Corrections Order (which is a sentence of imprisonment served in the community). Whether a person will receive a Gaol sentence depends on many factors including whether they plead or are found guilty, the circumstances of the offence itself, any prior criminal history and the person’s own circumstances. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.