Concealment of Birth


In NSW, Concealing the birth of a child carries a maximum penalty of 2 years imprisonment.

This offence does not place blame for the death of the child (which would be murder or manslaughter) and is more concerned with the hiding or attempts to hide the birth of the child in the first place. All births must be reported even if the baby dies of natural causes.

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

The Offence of Concealment of Birth:

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 Actions Might Constitute “Concealment of Birth”?

A common circumstance would arise where a child dies during or soon after being born and the mother or another person disposes of the body of the child in an attempt to hide the pregnancy/child, for example;

  • A baby is stillborn and the mother, in a attempt hide the child or pregnancy, buries the child in the backyard, or hides the body somewhere it is unlikely to be found (such as in a forest).
  • A baby dies shortly after a homebirth of natural causes and the father of the child attempts to hide the body of the child.

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 the Police Must Prove:

To convict you of concealing the birth of a child, the prosecution must prove each of the following matters beyond a reasonable doubt:

  • That you disposed of a dead body; and
  • In doing so, 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.

Possible Defences for Concealment of Birth:

Possible defences to a Concealing the birth of a child charge include but are not limited to:

  • The child was born prior to the 28th week of pregnancy (for example, an early miscarriage).
  • That you did not in fact conceal the birth
  • Duress
  • Necessity

Which Court Will Hear Your Matter?

Concealment of Birth is a Table 1 offence and is to be dealt with by the Local Court, unless you or the prosecution elect for the matter to be heard in the District Court on indictment. The summary disposal of these offences in the Local Court carries a maximum penalty of two years imprisonment.

Types of Penalties:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

Fines: When deciding the amount of a fine the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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