Concealment of Birth (NSW)

In New South Wales, concealing the birth of a child carries a maximum penalty of two years imprisonment. This offence occurs when a child dies during of after its birth and a person conceals the fact that the child was born. All births must be reported even if the baby dies of natural causes.

Legislation

The offence of Concealment of Birth is contained in section 85 of the Crimes Act 1900 which states:

• (1) Whosoever by any disposition of the dead body of a child, whether the child died before or after or during its birth, wilfully conceals or attempts to conceal the birth of the child, shall be liable to imprisonment for two years.
• (2) It shall be a sufficient defence to any charge under this section if the accused person shall satisfy the court or jury that the dead body in respect of which the disposition took place had issued from the body of its mother before the expiration of the twenty-eighth week of pregnancy.

What acts may constitute concealment of birth?

A person may be charged with this offence where:

• A baby was stillborn and the mother, in an attempt to conceal what has happened, buries the body in the backyard, or hides the body somewhere it is unlikely to be found;
• A baby dies of natural causes shortly after a homebirth and the father disposes of the body of the child without reporting its birth.

This offence can also be used as an alternative verdict to murder or manslaughter of a child, that being if a jury is not satisfied that a person is guilty of murder or manslaughter they may find that person guilty of concealment of birth if all of the relevant elements are satisfied.

What must be proven

To find a person guilty of concealing the birth of a child, the prosecution must prove each of the following matters beyond a reasonable doubt:

• That they disposed of a dead body; and
• In doing so, they wilfully concealed or attempted to conceal the dead body, and
• The dead body was that of a child; and
• The child died during, before or after birth.

Jurisdiction

Concealment of Birth is a Table 1 offence and is to be dealt with by the Local Court, unless the defence or the prosecution elects for the matter to be heard in the District Court on indictment.

When this offence is dealt with summarily a maximum penalty of two years imprisonment applies.

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