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.

Teachers

strategy

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.

Trespass

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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