An interesting article appeared in the Newcastle Herald (Wednesday, 25 August 2010) “Bail for woman guilty of drunken vexatious call.”
The article is significant, not for the nature of the offences for which the Defendant was convicted, but notably in reporting the sentence, the author disclosed that the defendant had committed a number of offences, including “a charge of serious affront (unseemly words) in 1979”.
That report raises the issue of when is a criminal conviction no longer required to be disclosed — or, when is a conviction “spent”?
The Criminal Records Act, 1991 (NSW) (“the Act”) provides that all convictions are capable of becoming spent, except:
“(a) convictions for which a prison sentence of more than 6 months has been imposed,
“(b) convictions for sexual offences,
“(c) convictions imposed against bodies corporate,
“(d) convictions prescribed by the regulations.”
(section 7(1) of the Act.)
A conviction is spent in circumstances including:
(a) on completion of the relevant “crime-free period”.
(b) immediately upon a finding of guilt or that an offence has been proved but, without proceeding to conviction (see section 10 of the Crimes (Sentencing Procedure) Act, 1999 (NSW));
(c) immediately after a caution is administered following an order of the Children’s Court dismissing a charge and administering a caution; and
(d) upon satisfactory completion of a period of good behaviour or satisfactory compliance of an intervention program ordered or determined by the Court.
(section 8.)
If a conviction is spent
(a) a person is not required to disclose it; and
(b) a question concerning the person’s criminal history is taken to refer to only convictions that are not spent (section 12).
A “crime-free period” is prescribed by section 9 of the Act, being a period of 10 consecutive years during which the person:
(a) has not been convicted of any offence punishable by imprisonment; and
(b) has not been in prison or unlawfully at large;
A person who unlawfully discloses to any other person information concerning a spent conviction is guilty of an offence which attracts a maximum penalty of 50 penalty units (currently $110.00 per unit) or imprisonment for six months, or both (section 13).
A conviction that is spent, however, is still required to be disclosed in circumstances where:
(a) an application by a person for appointment or employment as a judge, magistrate, Justice of the Peace, police officer, member of staff of Corrective Services (NSW), teacher, teacher’s aide or a provider of child care services;
(b) for any person who applies for child-related employment;
(c) to a person convicted of arson or attempted arson if that person seeks to be appointed or employed in firefighting or fire prevention; and
(d) The Criminal Records Regulation 2004 (NSW) provides further exclusions to the disclosure of a spent conviction including applications for employment with the Department of Public Prosecutions, ICAC and the Police Integrity Commission and application for admission as a legal practitioner.
In addition, the prohibition on disclosure of spent convictions does not apply to proceedings before a Court or the making of a decision by a Court (section 16(1)).
Despite the above, the Act requires a Court “in appropriate circumstances” (which significantly, are not defined) to “take such steps as are reasonably available to it to prevent or minimise publication of that evidence” section 16(2)).
Relating back to article published by the Newcastle Herald, two questions arise:
1. In disclosing an offence for which the defendant was presumably convicted in 1979 and upon the assumption that the defendant completed the relevant “crime-free period”, did the author disclose the existence of a spent conviction in breach of section 13 of the Act?
2. What steps “reasonably available to it to prevent or minimise publication” of that spent conviction, did the Court take?
If you require any further information please contact our Commercial Lawyer Nicholas Pidcock at the Newcastle Office of Burke Elphick & Mead Lawyers.
