Casella v Commissioner of Police, NSW Police Force [2025] NSWCATAP 191 | Case summary

Casella v Commissioner of Police, NSW Police Force [2025] NSWCATAP 191 | Case summary | Zoe

[26]

(1) 22 September 2014 - the Appellant was arrested and charged with two criminal offences, namely; Cultivating a prohibited plant contrary to the Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a); and Participating in a criminal group/assisting criminal activity - T2, contrary to the Crimes Act, s 93T(1). Those charges were subsequently withdrawn, and the Applicant entered a plea of guilty to the office of "conceal serious indictable offence of another person - T1" contrary to the Crimes Act, s 316(1).

(2) 15 June 2015 - the Respondent made a Firearms Prohibition Order (FPO) pursuant to the Firearms Act, s 73(1).

(3) 26 August 2015 - an internal review of the FPO order was conducted and finalised.

(4) 25 September 2015 - the Appellant sought administrative review of the decision to impose the FPO, and later withdrew that application.

(5) 21 September 2018 - the Appellant was sentenced in the District Court of New South Wales to a term of imprisonment of eight months

(6) 29 August 2019 - the New South Wales Court of Criminal Appeal quashed the prison sentence and replaced it to a term of imprisonment for six months to be served by way of an Intensive Correction Order: Casella v R [2019] NSWCCA 201 (Casella v R).

(7) 17 October 2019 - the Appellant made an application for administrative review of the FPO but later withdrew that application.

(8) 28 November 2019 - the Appellant's solicitor wrote to the Respondent seeking a revocation of the FPO.

(9) 10 December 2019 - the Respondent replied to the effect that in the opinion of the Respondent, the Appellant is not fit to have access to firearms and that it supported the continuance of the FPO.

(10) 28 June 2024 - the Appellant received legal advice, that differed from previous legal advice he had received, concerning his prospects to seek review of the Respondent's refusal to revoke the FPO.

(11) 17 July 2024 - the Appellant filed an application for Administrative Review which culminated in the Decision.

(12) 5 September 2024 - the Respondent sought that the application for administrative review be dismissed on jurisdictional grounds.

[57]

5 Offences that disqualify applicants

(1) For the purposes of sections 11 (5)(b) and 29 (3)(b) of the Act, the following offences are prescribed -

(a) Offences relating to firearms or weapons

...

(b) Offences relating to prohibited drugs etc

An offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2008, being an offence in respect of which the penalty imposed included any term of imprisonment (whether or not suspended), a community service order, a good behaviour bond or a penalty of $2,200 or more, and committed under -

(i) the law of any Australian jurisdiction, or

(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction).

(c) Offences relating to public order or involving assaults against law enforcement officers

...

(d) Offences involving violence..

(e) Offences of a sexual nature

...

(f) Offences involving fraud, dishonesty or stealing

An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the penalty imposed included a term of imprisonment (whether or not suspended) for 3 months or more, a community service order for 100 hours or more of community service work, or a good behaviour bond.

...

(k) Offences involving organised criminal groups, consorting and recruitment

An offence -

(i) committed under section 93T, 93X or 351A of the Crimes Act 1900, or

(ii) committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence referred to in subparagraph (i).

(1A) In subclause (1) -

(a) a reference to a good behaviour bond includes a reference to a community correction order or a conditional release order, but only if it was imposed in NSW, and

(b) a reference to a term of imprisonment (whether or not suspended) includes a reference to an intensive correction order, but only if it was imposed in NSW.

...

[61]

In the following paragraphs, we summarise the Tribunal's reasoning as recorded in the Decision.
The Tribunal noted that the Appellant had entered a plea of guilty to an offence under s 316(1) of the Crimes Act described briefly as "conceal serious indictable offence of another person".
At [13] of the Decision the Tribunal recorded the Respondent's submission that the circumstances of the Appellant's offence related to the Appellant knowing that five co-offenders had committed a serious indictable offence and knowing that he had information which might be of material assistance in securing the prosecution of those individuals, failed without reasonable excuse to bring that information to the attention of a member of the police force or other appropriate authority. The serious indictable offence, the subject of the charge, was, in the case of three co-offenders, the offence of cultivating a large commercial quantity of a prohibited plant, namely cannabis, and in the case of two of the co-offenders, the offence of cultivating a commercial quantity of a prohibited plant, namely cannabis.
We have set out the relevant parts of s 11(5) of the Firearms Act, above; however, it is relevant to point out that s 11(5)(b) states that a licence must not be issued to a person who has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations. Clause 5(1) of the Firearms Regulation sets out the prescribed offences referred to in s 11(5)(b) of the Firearms Act, including offences under cl 5(1)(f) "involving fraud, dishonesty or stealing".
The Decision recorded the submission of the Respondent that the Appellant's offence was an offence involving dishonesty and in support cited two decisions of this Tribunal, namely Nguyen v Commissioner of Police [2020] NSWCATOD 150 (Nguyen) and Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 (Farah).
The Decision also recorded the Respondent's submission that the Appellant's offence was an offence "relating to" prohibited drugs within the meaning of cl 5(1)(b) of the Firearms Regulation, because cl 5(1)(b) does not require that the relevant offence be an offence under the Drug Misuse and Trafficking Act , merely that it be "an offence in respect of a prohibited plant ... within the meaning of" that Act. In this case, the Appellant's offence involved his concealment of the cultivation of prohibited plants by others. The Respondent also submitted that the penalty imposed on the Appellant of six months imprisonment to be served by an ICO fell within the meaning of cl 5(1)(b), which required a term of imprisonment, whether or not suspended, and that the offence was committed under the law of NSW.
The Decision records the Appellant's submission that he was not a "disqualified person" within the meaning of the Firearms Act and cl 5(1)(b) of the Firearms Regulation because the offence under s 316(1) of the Crimes Act was not an offence "in respect of" a prohibited plant or drug. The Respondent also submitted that the offence under s 316(1) was not an offence involving fraud, dishonesty, or stealing within the meaning of the Firearms Act and cl 5(1)(f) of the Firearms Regulation. The Appellant submitted that Nguyen was wrongly decided.
In the Decision the Tribunal determined that an offence under s 316 of the Crimes Act involves dishonesty. The Tribunal found that the act of concealing a serious indictable offence "must involve dishonesty, within its ordinary meaning." The Tribunal concluded that the Applicant is a disqualified person within the meaning of s 11(5) of the Firearms Act and cl 5(1)(f) of the Firearms Regulation and therefore his FPO is not reviewable pursuant to s 75(1A) of the Firearms Act.
The Decision then considered whether the Tribunal should extend time, but on the contingent basis that the Tribunal was wrong in its decision that the decision under review was not reviewable. The Tribunal noted that the FPO was made on 15 June 2015 and that an internal review of that decision was made on 26 August 2015. At [22], the Tribunal found that the relevant time period for lodgment of the Application for Administrative Review was 28 days: Civil and Administrative Tribunal Rules 2014 (NCAT Rules), r 24(4)(a). That meant that the Appellant's time for lodgment of an Application for Administrative Review had expired "on or around 23 September 2015" but the Appellant's application for review was, in fact, lodged nearly nine years later on 17 July 2024.
The Tribunal considered its powers to extend time by reference to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the principles associated with granting an extension of time as articulated in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Tribunal referred to the Appellant's evidence that he was under a misunderstanding that he was a disqualified person under the Firearms Act and that he was unable to lodge a fresh application.
At [33] of the Decision, the Tribunal recorded its findings that:

[70]

(1) He is not a disqualified person within the meaning of the Firearms Act. A person is a disqualified person if they would be required under ss 11(5) or 29(3) of the Firearms Act to be refused a licence or permit and as such, precluded from applying for a review of the subject FPO. Sections 11(5)(b) and 29(3) prohibit the issue of the licence or permit to a person who has, within the period of 10 years before the application for a licence or permit was made, been convicted in NSW or elsewhere of an offence prescribed by the regulations. The only class of prescribed offence as found by the Tribunal was in cl 5(1)(f) of the Firearms Regulation, namely, the Tribunal had concluded that an offence under s 316(1) of the Crimes Act was an offence involving dishonesty.

(2) The Tribunal erred in law by misconstruing s 316(1) of the Crimes Act and finding that, on its face and according to the elements of the offence, it involved a crime of dishonesty. The Tribunal did not accept that the decision of Nguyen was wrongly decided. The Appellant submitted that this conclusion was wrong for seven reasons:

(a) First that the offence under s 316(1) does not require the offender to act dishonestly or fraudulently or with any specific intention. It is not a stated element in the offence, noting that the concept of "dishonesty" is defined within s 4B of the Crimes Act and is not referred to within s 316(1) or at all. Rather, what is required is knowledge or a belief that a serious indictable offence has been committed by another, that the person knows or believes that they have information that might be of material assistance in securing the offender and that the person fails, without reasonable excuse, to bring that information to the attention of a member of the NSW Police Force. A fair reading of these elements does not disclose that the offence "necessarily" involves dishonesty to adopt the language of the Appeal Panel decision in Farah at [19].

(b) Second, the offence under s 316(1) does not require that the offender seek to procure a desired outcome in exchange for the withholding of information from the police, typically associated with an element of dishonesty - see White v Police Commissioner of Police, NSW Police Force [2024] NSWCATOD 146 at [52].

(c) The third reason was that s 316 contains a clear distinction between offences that have the quality of dishonesty. The Appellant referred to s 316(2) which concerns an agreement to commit an offence under s 316(1) in consideration for a benefit and contrasted that offence with an offence under s 316(1) which may be committed in the absence of any dishonest conduct or where there is no defence of a reasonable excuse.

[72]

In respect of Ground 2, the Appellant repeated the submissions as they applied to Ground 1 on the question of disqualification as constituting the relevant error.
In addition, he contended that this error further affected the Tribunal's reasoning at [38] of the Decision, where the Tribunal found that the Appellant had no prospects of success because he remained a disqualified person. If the Appellant was entitled to have the FPO reviewed, so the Appellant submitted, it stands to reason that he was therefore not a disqualified person. Accepting that proposition, it could not be said that his application had no prospects of success as his evidence as to fitness and propriety were clearly relevant to the question required in relation to the review under s 75(1)(f) of the Firearms Act: Behjan v Commissioner of Police, NSW Police Force [2024] NSWCATAD 297 at [53]- [54].
A second error occurred with respect to the issue of whether the Appellant should have an extended time to make application for review. At Decision [30], the Tribunal stated that the "onus is on the Applicant to establish that the Tribunal should exercise its discretion to extend the timeframe within which to seek review", relying upon Choy v Rugsat [2020] NSWCATAP 88 at [27]. The Appellant contended that this was incorrect. The applicant does not bear an onus under s 41: see CGP v Children's Guardian [2017] NSWCATAD 12 (CGP) at [20]-[29]. The notion of onus of proof, which plays so important a part in fact finding in adversarial proceedings before judicial tribunals has no part to play in administrative proceedings: see Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-425 (cited in Hawkins v Council of NSW Bar Association [2019] NSWCATOD 148 at [23]).
The Appellant submitted that an applicant may bear the initial "practical or forensic" onus of putting before the Tribunal the material necessary for it to be reasonably satisfied to (in this case) extend time (see CGP at [27]), but the Tribunal must still act fairly and on the basis of relevant evidence.
The Appellant submitted that he had discharged the practical onus by putting evidence before the Tribunal. The evidence was accepted: see the Decision at [34]. The basis upon which it was rejected by the Tribunal (set out at [33] of the Decision) was not the subject of any evidence from the Respondent and was never the subject of cross-examination. The Appellant submitted that the Tribunal's approach in making findings that were not fair or founded on the evidence arose from the incorrect premise that the Applicant bore an onus.
The third submission made by the Appellant concerned what the Appellant described as "representative error". The Appellant's submissions refer to principles that relate to whether representative error constitutes an acceptable reason for a delay (in this case, the delay in filing the application for review). The Appellant relied upon the decision in Clark v Ringwood Private Hospital (1997) 74 IR 413. The Appellant contended that delays occasioned by a solicitor should not be visited upon a client: see, for example, Stollznow v Calvert (1980) 2 NSWLR 749 at 753. A client is entitled to rely upon the advice received from their legal representative: Morton v Jools (1992) Aust Tort Reports 81-164 at 61302.
It follows that a client should not be blamed for the failure to get advice on a particular issue unbeknownst to them. Representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged: Sophron v Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469 at 474.
The Appellant's submissions state that the conduct of the applicant is a central consideration in deciding whether representative error involves an acceptable explanation for the delay in filing the application.
The Appellant's submissions state that the Tribunal erred in not accepting that the reason for the delay in bringing the proceedings below was due to the Appellant's "original misunderstanding" (Decision at [33]). The evidence disclosed that the Appellant was advised firstly that he was a disqualified person and could not apply for a review and that he was, secondly, unable to commence fresh proceedings due to previous proceedings having been withdrawn, again on advice. The Appellant held that those views were correct until he received advice to the contrary on 28 June 2024.
The submissions state that the Tribunal placed unwarranted blame on the Appellant for not seeking senior counsel's advice on these issues of jurisdiction, contrary to the authorities above and in the absence of being cross-examined. The facts demonstrate the Appellant acting on advice that was previously given to him, which alone provides a sufficient basis for the delay, having been disabused of that view with different advice, he thereafter promptly acted in commencing the application for review. By apportioning blame on the Appellant, the Tribunal erred in determining the question of delay in regards to the application for extension of time.

[73]

In the following paragraphs, we summarise the submissions of the Respondent.
With respect to the fact that the Appellant lodged the Notice of Appeal out of time, the Respondent submits that, given the short delay and the explanation provided by the Appellant, the Respondent no longer opposes the Appellant having an extension of time to lodge the application for leave to appeal and to rely upon the Amended Notice of Appeal.
The Respondent's submissions firstly deal with the requirement for the Appellant to be granted leave in respect of the appeal from the decision of the Tribunal not to extend time. That view is based upon the fact that the decision not to extend time is an "interlocutory decision" within the meaning of s 4(d) of the NCAT Act and the requirement in s 80 of the NCAT Act for leave to be granted in respect of appeals from an interlocutory decision. The Respondent submitted that the Appeal Panel should refuse leave largely because the Appellant cannot establish appealable error.
So far as Ground 1 of the appeal is concerned, the Respondent noted that the Appellant does not challenge the correctness of the Appeal Panel's decision in Farah which the Tribunal at first instance applied. The Appeal Panel in Farah stated at [42] that it is not permissible to look behind the conviction for the relevant offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied upon to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J, referring to her Honour's judgment in Barber v the Law Society of New South Wales (No 2) [2001] NSWSC 861 (Barber) at [32], the offence must be one which involves dishonesty "without further enquiry". The Respondent's submissions state that the Tribunal in Nguyen at [31]-[35] followed the same approach. After setting out the authorities, the respondent submits they support an "elements only" approach. The Tribunal at Decision [36] correctly summarised the elements of s 316(1) of the Crimes Act and stated that the elements are as follows:

[75]

The Respondent's submissions continued, relying upon the statement made in Nguyen at [37] to the effect that the relevant issue boils down to the question of whether the third element (see above) being the failure to notify the police of the other person's criminal activity is an act or omission involving dishonesty.
The Respondent's submissions state that the Appellant's submissions identifying seven reasons for the decision Nguyen being wrong, do not address the central reasoning contained at [37] of Nguyen, the effect of which is stated in the above paragraph.
The Respondent's submissions state that the reasoning in Nguyen is supported by the observations of Bathurst CJ in Casella v R at [96] where his Honour, the Chief Justice, stated that the "concealed offences were serious and it is necessary to make it clear that persons who deliberately conceal serious offences can expect appropriate punishment". The Respondent submitted that the observations of the Chief Justice answer the Appellant's seven reasons and highlight the Appellant's argument about the "without reasonable excuse" aspect of the offence is not to the point. In this case, the facts determined by the Appellant's plea of guilty established that he "deliberately concealed serious offences".
The Appeal Panel in Farah at [31] stated that to be an offence involving dishonesty, the relevant statutory provision does not have to contain the word "dishonest" or "dishonesty". In Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 (White) at [65], the Appeal Panel recently affirmed this principle.
The Respondent submitted that the Tribunal's reasons do not display error and Ground 1 should be rejected.
The Respondent submitted, in addition to the above submissions, that by operation of cl 5(1)(b) of the Firearms Regulation, the Appellant would also be a "disqualified person". That provision concerns offences related to prohibited drugs.
The Tribunal at first instance acknowledged submissions by the parties on this issue but did not determine it once it had found that the Appellant was a disqualified person within the meaning of s 11(5) of the Firearms Act and cl 5(1)(f) of the Firearms Regulation. The Respondent submitted that in the present case, the operation of cl 5(1)(b) of the Firearms Regulation provides a separate and independent basis for finding that the Appellant is a "disqualified person" and therefore that the decision to make the FPO against him is not reviewable pursuant to s 75(1A) of the Firearms Act.
The Respondent submitted that the heading of cl 5(1)(b) refers to offences "relating to prohibited drugs etc" and relevantly prescribes, for the purposes of s 11(5)(b) of the Firearms Act, an offence "in respect of a prohibited plant or prohibited drug within the meaning of" the Drug Misuse and Trafficking Act. The use of the phrase "in respect of" in cl 5(1)(b) is different from the phrase "involving". Statutory phrases such as "in respect of" or "in relation to" have been held to have a meaning that is "extremely wide" depending on the context: Australian Securities and Investments Commission v Narain [2008] FCAFC 120; (2008) 169 FCR 211 at [68].
The relevant context encompasses the principles and objects of the Firearms Act, which include that "firearms possession and use [is] a privilege that is conditional on the overriding need to ensure public safety" (s 3(1)(a)), "to improve public safety... by imposing strict controls on the possession and use of firearms" (s 3(1)(b)(i)) and "to provide strict requirements that must be satisfied in relation to licensing firearms and the acquisition and supply of firearms (s 3(2)(d)). These features of the statutory regime further support a broader construction of the phrase "in respect of" in the context of cl 5(1)(b) of the Firearms Regulation especially as it better advances the protective purposes of licensing provisions such as s 11(5) of the Firearms Act.
The Respondent submitted that applying such construction of cl 5(1)(b) within the broader statutory framework here supports a finding that the Appellant's offence against s 316(1) of the Crimes Act is "in respect of a prohibited plant". Moreover, at a factual level, there is no dispute that the "serious indictable offence" for the purposes of the Appellant's conviction under s 316(1) concerned the cultivation of thousands of prohibited cannabis plants by five co-accused.
The Respondent's submissions included submissions to the effect that we should not give leave for the Appellant to challenge the Tribunal's decision to decline to grant the Appellant an extension of time. It is not necessary to repeat the substance of those submissions.

[76]

The Appellant submitted that although the Respondent agreed that the correct approach is the "elements only approach", consistently with what is said by the Appeal Panel in Farah at [42], the Respondent conflated the distinction between the "elements only" approach and the facts underpinning the relevant conviction. The terms of s 316 of the Crimes Act, do not include the words "deliberately" or "concealed" and the remarks made by Bathurst CJ in Casella v R can only be read in the context of the Appellant's resentencing as underpinned by a Statement of Agreed Facts.
The Appellant submitted that the critical point, which the Respondent has failed to grapple with, is whether the third element of s 316(1) necessarily involves dishonesty. The Respondent has failed to address the impact of the words "without reasonable excuse" have in relation to the elements of the offence and particularly to the question of dishonesty. The extent to which infringement of the section may occur where a person has, for example, an honestly held belief that the information would not be of assistance, but which does not contain a reasonable excuse within the terms of the Crimes Act underscores the conclusion that the offence does not necessarily involve dishonesty when fairly considered: see, by example, White at [80] and [85].
The Appellant further submitted that the Respondent's alternative argument concerning an offence related to prohibited drugs is similarly unsound. Although phrases "in respect of" and "involving" are different, and the former is broader, the relevant enquiry remains the same such that both words apply equally to looking at the core elements of the offence, rather than the broader circumstances that give rise to the conviction. The Respondent would still not be a disqualified person by reason of the offence under s 316. This is because the offence under that section is not an offence "in respect of" a prohibited plant or drug and is therefore not captured as a prescribed offence under the Firearms Regulation.
Contrary to the Respondent's submissions, the Appellant's submission is that it is not available to the Respondent to seek to introduce the factual circumstances surrounding the conviction under s 316.
The Appellant's submissions in reply also include submissions concerning Ground 2. It is not necessary for us to repeat those submissions in this decision.

[85]

In Farah, the Appeal Panel concluded at [42] that "the offence itself must involve dishonesty". It is not permissible to look behind the conviction for that offence to consider the particular facts of the case. The agreed facts in which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant." However, to be an offence involving dishonesty, the relevant statutory provision does not have to contain the word "dishonest" or "dishonesty": Farah at [31].
For the purposes of the issues arising in this appeal, we accept the reasoning of the Appeal Panel in Farah and adopt the same approach.
The Appellant submitted that the decision at first instance in Nguyen was wrong and that we should not follow it. Nguyen concerned a licence under the Security Industry Act 1997 (NSW) in circumstances where Mr Nguyen had been convicted of "conceal serious indictable offence of another person" under s 316 of the Crimes Act (Nguyen at [29]). The wording of s 316 considered in this decision is not identical to the wording of s 316 applicable to this appeal. However, both versions are in substance the same in containing the same elements. The Tribunal described the elements of s 316(1) by reference to each of the elements in paragraphs 316(1)(a), (b) and (c). Essentially the elements, including the elements of the version of s 316(1) applicable to this appeal, involve knowledge or belief that a serious indictable offence has been committed, knowledge or belief that the relevant accused has information that might be of material assistance in securing apprehension of the offender or the prosecution or conviction of the offender, and also the failure (without reasonable excuse) to bring that information to the attention of a member of the Police Force or other appropriate authority.
In Nguyen at [37], the Tribunal stated that the "issue boils down to the question of whether the third element, the failure to notify the police of the other person's criminal activity, is an act or omission involving dishonesty". The Tribunal found that "dishonesty" is not limited to positive facts and that a failure to act, or an omission, can also amount to dishonesty. In coming to that conclusion, the Tribunal relied upon the decision in Joyce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 17 at [18], in which the Tribunal stated that the ordinary meaning of dishonesty does not require that the person engaged in some positive act. It can include a situation where a person fails to act.
The Tribunal in Nguyen stated at [41] that the "critical element of the offence" of which Mr Nguyen was convicted, the element of failing to notify the police of the serious indictable offence being committed by another person, involved dishonesty on Mr Nguyen's part. The Tribunal held that it follows that he has been convicted of an offence involving dishonesty.
We agree with the reasoning contained in the Nguyen decision, and accordingly we reject the Appellant's submission that that decision was wrongly decided.
In our view, the third element of s 316(1), namely the failure, without reasonable excuse, to bring the information to the attention of a member of the Police Force or other appropriate authority, having regard to the other two elements and the likely defences of having a reasonable excuse or receiving information in a particular role, profession or calling, involves concealment and dishonesty. In short, we disagree with the Appellant's submission that the elements of the offence described by s 316(1) of the Crimes Act do not necessarily involve dishonesty.
The Appellant's submission that the offence under s 316(1) does not require that the offender seek to procure a desired outcome in exchange for the withholding of information from the police, being a characteristic typically associated with an element of dishonesty, suggests that the offence under s 316(1) does not involve dishonesty is rejected for the reason that, in our view, a failure to act may be dishonest even if it cannot be established that the failure was motivated by a desire to procure a particular outcome. Section 316 involves a deliberate failure to disclose, but it is not necessary to establish that that failure was intended to obtain an advantage.
We accept that, while the heading to s 316 of the Crimes Act contains the word "Concealing" that word does not form part of the section: Interpretation Act, s 35. However, the word "Concealing" in the heading does assist in the manner permitted by the Interpretation Act, s 34; that is to say, the inclusion of the word "Concealing" in the heading assists in confirming that the failure to inform police or other authorities, as described in s 316(1), involves dishonesty.
The Appellant drew our attention to the decision of the House of Lords in Sykes v Director of Public Prosecutions [1962] AC 528. That case concerned the offence of misprision of felony and stated that a person is guilty of that crime if, knowing that a felony has been committed, and fails to disclose his knowledge to those responsible for the preservation of the peace. At 569, Goddard LJ stated that the gist of the offence of misprision of a felony is concealment "which may be passive". His Lordship added that it does not matter what induces the concealment. Lord Morris at 571 stated that it is not necessary to prove active concealment and that it is also not necessary that the concealment be of advantage or a source of profit. Our view of s 316(1) is to the same effect, namely that the failure to disclose may be passive and, as we have stated above, it is not necessary that motive or benefit be established.
As stated earlier, the Appellant relied upon the decision of the Appeal Panel in White for the proposition that s 316(1) of the Crimes Act does not necessarily involve dishonesty because a person may, for example, have an honestly held belief that the information would not be of assistance, but which does not contain a reasonable excuse_._ That case concerned an application for a security licence where the applicant had been found guilty of perjury contrary to s 703(1) of the Criminal Code 2002 (ACT). The Appeal Panel dealt with the question of whether the offence involved dishonesty and found against the applicant, affirming the decision of the respondent to refuse the licence. Section 703(1) provided that perjury includes a statement said to be true, but which is false and the person is aware that there is a substantial risk that the statement is false and further that in the circumstances it is unjustifiable to take the risk (White at [75]). The Appeal Panel stated at [70] that it was concerned with the "very specific definition of when a person is taken to be reckless under the Code." At [80] the Appeal Panel held that making a sworn statement on an honestly held belief (even if carelessly or unjustifiably held) that the statement was true, when it was not true, is not dishonest. That statement was stated to be a summary of judgments concerning false representations. At [81] the Appeal Panel held that to be convicted of perjury involving recklessness, the false statement must be made in the knowledge of the requirement to tell the truth and knowing that there is a substantial risk the statement is not true. At [82], the Appeal Panel held that it is not possible to hold an honest belief that a statement is true, while simultaneously knowing that there is a substantial risk that the statement is untrue.
The decision of the Appeal Panel in White must be treated with care because it was concerned with the definition of perjury under the Criminal Code of the ACT. We do not agree with the Appellant that the decision supports the proposition for which it contended.
Applying the above remarks to our consideration of s 316, it is our view that an honestly held belief that information need not be brought to the attention of the authorities where that belief is not held recklessly (in the sense of knowing that there is a substantial risk that the belief is untrue) could be a belief that constitutes a reasonable excuse for not bringing the information to the attention of the authorities.
In short, we are of the view that the Appeal Panel's remarks in White do not support the Appellant's submission that s 316 does not necessarily involve dishonesty because, for example, a person may have an honestly held belief that information may not be of assistance, but that belief does not contain a reasonable excuse. If anything, that example demonstrates the opposite, namely that an offence under s 316 involves dishonesty because a belief (that it is not necessary to disclose information to the authorities) either is honestly held, and the excuse for non-disclosure is reasonable, or the excuse is not reasonable because the belief is held recklessly. A recklessly held belief is inconsistent with holding the belief honestly.
Given our construction of the elements of s 316(1), it is not necessary to directly respond to each of the seven arguments put forward by the Appellant to demonstrate error by the Tribunal at first instance.
Accordingly, our conclusion is that Ground 1 of the appeal should be rejected.

Casella v Commissioner of Police, NSW Police Force

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