Spent Convictions – the next level

So, you were successful in having the court record no conviction in your case. That means your ‘conviction’ becomes automatically spent, and cannot be disclosed by anyone, right? Not necessarily. Unfortunately, as employment clearances such as national police certificates become more and more specific, employers and other organisations have greater access to citizens’ spent convictions and criminal records.

Not too long ago most people weren’t required to submit to a national criminal history check prior to being employed. Requirements have become more and more stringent and now huge numbers of workers have to agree to their prospective employer seeking a national police certificate for them. Where this is a standard police certificate sought by an employer, spent convictions will not ordinarily appear. However, there are different classes of certificates employers can seek such as for the purpose of working with vulnerable people. In these cases the issuing body (say the company engaged by the employer to provide the certificate) will be entitled to disclose convictions which have been spent. This means your ‘without conviction’ offence will show up.

There is something you can do, however. It’s possible to make an application to a Magistrate to have your offence exempted from disclosure in certain circumstances. Where the criminal history check is for the purposes of working with vulnerable people or where the check is for the purpose of a character test, you may be able to have the offence(s) exempted from disclosure.

An illustration of that is the recent case of a client of mine who had pleaded guilty to an offence which had nothing to do with her ability to perform her job, or her suitability for her profession. She was successful in having no conviction recorded at the sentencing. Her conviction was therefore automatically ‘spent’. Nevertheless had it not been for our subsequent successful application to a Magistrate, this offence would have been disclosed on a police check for the purpose of working with vulnerable people.

If you have a spent conviction but are worried it may still show up on a police check, please do not hesitate to contact Mac and Co for free preliminary advice.



Mac and Co Lawyers act for teachers charged with criminal offences in South Australia. We understand that not only is it important to be cleared of any criminal allegations, it is also vitally important you suffer no adverse effects on your teacher registration or employment.

If you are required to appear before the teacher’s registration board or other disciplinary forum, you should arrange legal representation at an early stage. The Teachers Registration and Standards Act 2004 is the law governing the disciplinary process for South Australian teachers.

Student teachers should not underestimate the effect any court matter or police investigation can have on their career aspirations and it is most important they engage a lawyer experienced in disciplinary matters at the very first opportunity.

Firm principal, Jessie MacGillivray has acted for teachers charged with criminal offences or investigated by police. She understands that these matters are incredibly sensitive and need to be handled with the utmost care and confidentiality. Contact us to speak directly to a lawyer who can advise and represent you during this most critical time.


There are several types of trespass offences police use to charge people when they have entered onto property they are not authorised to.

Serious Criminal Trespass

The most common is serious criminal trespass – in other words: burglary or where a person enters a place with the intention of committing a crime such as theft.
Sometimes people, particularly young people trespass in buildings and on land just because they are curious or because they are following a group. Nevertheless they may be charged with serious criminal trespass and police may allege they were there to commit an offence such as theft or property damage. A lawyer will explain your rights to you and speak to the police on your behalf to try to get the charge withdrawn or down-graded. It is extremely important for people to have legal representation when charged with serious criminal trespass because a criminal record for any kind of trespass can impact on your future.

Home invasion

In South Australia home invasion is known as aggravated serious criminal trespass. This is when there is someone home at the time of the serious criminal trespass and the defendant knew that or was reckless about whether anyone was inside. This is an offence that has a maximum penalty of life in prison. A lawyer reads through all the evidence the police have against the defendant and identifies where there are weaknesses and any possible defences.

Evidence in these kind of cases usually consists of finger prints and DNA, witness statements, CCTV footage, clothing and sometimes admissions made by the defendant to the police. All of this evidence may be challenged by a lawyer.

Other kinds of trespass

When police do not think that someone was trespassing in order to commit a crime, and there was someone inside the property, they may charge the person with criminal trespass under section 170 of the Criminal Law Consolidation Act.

The least serious trespassing offences are under the Summary Offences Act but they are still serious and if you were found guilty or pleaded guilty to any of them they could severely harm your future prospects.

All of these trespass options mean there are lots of ways to negotiate with prosecutors in these kind of cases. For example, by pointing out the weaknesses in their case, a lawyer might be able to convince a prosecutor that they should accept a guilty plea to a less serious charge so their client has a better chance of avoiding a gaol term.

Dealing with police and other prosecutors

Remember, prosecutors must always prove their case beyond reasonable doubt.  Every element of the offence must be proved.  This means that for example, where a person had consent to enter a property there is no trespass. Where there is no evidence the person meant to commit an offence when inside the property the serious criminal trespass offence cannot be proved (but there still might have been a simple trespass). Your lawyer will discuss with the police the problems with their case and try to get the charge withdrawn. If that is not possible, your lawyer will represent you in court at a trial, unless you want to plead guilty. At Mac and Co Lawyers you are in charge of your case.

When multiple people are charged

When a group of people are charged with a trespass of any sort, the laws around joint enterprise may apply. A good criminal lawyer will have knowledge of the law of joint enterprise and be able to advise their client well. Jessie MacGillivray has experience in many kinds of trespass cases and will fight to protect your rights and your freedom.

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Legal Jargon

A lot of people hear the following words and are familiar with them but don’t always know exactly what they mean. These are all important words when dealing with a criminal or traffic law matter:


Apprehension Report

You will likely already have been given the Apprehension Report or ‘AP’ from the police by the time you come to see us. If not, we can obtain a copy from them easily.

The Apprehension Report is useful to read alongside the complaint or information and summons. It tells us the basic story of what the police say you did. One of the first things we look for in an apprehension report is the identity of the accused to make sure you are the person they say you are. We then look at whether the charges contained in the complaint or information could possibly be ‘made out’ in the Apprehension Report. After that we have a detailed discussion about the allegations contained in the Apprehension Report, look at any defences that may be available to you and find out what your views are on the matter.

At all stages of our representation we will consult you. You will be in charge of the direction your matter goes in. This is important because the decisions you make about your case will affect you for the rest of your life.


When a person is charged with an offence they will be summonsed to appear in court, arrested and released on bail to appear at court or arrested and not released on bail to appear at court.

Bail takes place either at the police station or at a court. You should arrange legal representation hastily if you are going to court to ask for bail from a magistrate. Sometimes the decision by a magistrate to grant bail is a very close call. An experienced criminal lawyer will put forward a convincing case for release on bail.

If you are interviewed by police it is important to speak to a lawyer prior to answering any police questions.


Lawyers are either barristers or solicitors in South Australia. As solicitors we engage a barrister on behalf of our clients when we have a matter going to trial that calls for someone more senior or where we are unavailable. We generally advise clients that we should engage a barrister after a major indictable matter (e.g traffic in commercial quantity of controlled drug) is committed to trial in the District Court. Our practice is to engage a barrister early in the piece so as to ensure that they have plenty of time to think about our client’s case and to ensure that they are available for any future trial date.

Although we are technically barristers and solicitors, we do not practise as barristers. Lawyers who work as barristers are independent and always operate as sole practitioners, not in a firm or a partnership. Barristers do, however often work in chambers with other barristers. This allows them the convenience of shared administrative support, accommodation, and other overheads.

We do appear for our clients in court most of the time and when it is appropriate. For example, we appear as counsel for clients in the Magistrates Court and District Court on pleas of guilty, bail applications, trials, committals, arraignments, directions hearings, sentencing and pre-trial conferences.


This is the work that a defendant does to improve themselves or treat the issues that have led to them offending. It’s generally our advice to seek help as soon as possible for things that are troubling you and leading to offending. Tackling the root cause of someone’s offending not only makes them see their life more clearly and helps them to get to where they want to be, but it also shows the court that they are serious about never committing crime again.

Rehabilitation can be in the form of attending a special court such as a gambling court, or family violence court or it might be done one-on-one with a mental health care practitioner or in a group setting such as in a drug treatment facility.

Summary offence

Summary offences are a category of offences that are less serious such as theft where the value is less than $2500, most driving offences, and offences where the maximum term of imprisonment allowed is 2 years.

Minor Indictable offence

Minor indictable offences are serious offences which can be heard in the Magistrates Court. An example of a minor indictable offence is a serious criminal trespass (burglary) where the value of goods taken was less than $30000.

Major Indictable offence

Major indictable offences are the most serious offences, such as trafficking a commercial quantity of controlled drug, possess child exploitation material, murder, unlawful sexual intercourse, rape etc. This category of offences must be dealt with in the District Court and in some cases the Supreme Court. In certain circumstances they may be finalised in the Magistrates Court. All offences will begin in the Magistrates Court.


A person is reckless when they consider something risky but they do it anyway. An example would be running through a crowded room in a hurry and without much care holding a hot cup of tea. You know that it’s risky and that it might spill onto someone and scald them but you do it anyway. You didn’t mean to scald anyone – it wasn’t intentional.