A common area of inquiry in regards to the area of criminal law is the concept of conviction because a person who has been convicted of a criminal offence can face a number of restrictions that may affect the type of work the person is able to undertake, along with being prevented from travelling to certain countries in certain instances. Due to the fact that a conviction can have a significant impact, it’s perhaps useful to find out the basic elements associated with convictions.
The definition of conviction
The natural starting off point is defining what exactly a conviction is, and if we turn to the judgment of Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR; 135 ALR 1; 87 A Crim R 180 the Justices said:
“The review of the authorities which we have made satisfies us that a plea of guilty does not if its own force constitute a conviction. In our opinion it amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a “conviction”, for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given but conviction by judgment… there must at least be a determination of guilt before there can be a conviction. There can accordingly be no conviction on a count to which an accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilty. And if there can be no conviction til then, neither can there be a successful plea of autrefois convict (editor’s note: previous conviction; double jeopardy).”
Can a judge choose to not record a conviction in the event that a jury has found a person guilty?
In R v Celep  4 VR 811; (1998) 100 A Crim R 310 (CA), after the jury returned a verdict of guilty, the presiding judge exercised his discretion under s 75 of the Sentencing Act 1991 (Vic) not to record a conviction.
Section 75 states the following in regards to release on adjournment without conviction:
“(1) A court, on being satisfied that a person is guilty of an offence, may(without recording a conviction) adjourn the proceeding for a period of up to 60 months and release the offender on the offender giving an undertaking with conditions attached.
(2) An undertaking under subsection (1) must have as conditions-
(a) that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and
(b) that the offender is of good behaviour during the period of the adjournment; and
(c) that the offender observes any special conditions imposed by the court.
(3) Subject to Division 3 of Part 3B, a court may attach a justice plan condition that the offender participate in the services specified in a justice plan for a period of up to 2 years specified by the court or the period of the adjournment, whichever is the shorter.
(4) An offender who has given an undertaking under subsection (1) may be called on to attend before the court-
(a) by order of the court; or
(b) by notice issued by the proper officer of the court.
(5) An order or notice under subsection (4) must be served on the offender not less than 4 days before the time specified in it for the attendance.
(6) If at the time to which the further hearing of a proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking, it must dismiss the charge without any further hearing of the proceeding.”
Ultimately in Celep, the Court of Appeal allowed for an appeal against conviction on the unsafe and unsatisfactory ground a verdict of acquittal was entered.
We should note that statutory provisions exist in all jurisdictions that are similar to s 75 of Victoria’s Act allowing for a judge to use his or her discretion of not recording a conviction if an offence is proved.
Does a previous conviction have an effect?
Some jurisdictions makes an allowance for previous convictions for minor offences to not form part of the person’s criminal history after a period of good behaviour, and is referred to as a ‘spent conviction’. However, we should add that there are exceptions in jurisdictions that take into account spent convictions, and furthermore, not every State allows for spent convictions to be taken into account.
This article is only a brief overview of the concept of conviction and if you have any questions or concerns in regards to a criminal law matter, please use the FindLaw Directory to contact a lawyer who will be able to help.