Being involved in the Australian criminal justice system can be incredibly stressful, with terminology specific to its different stages often adding to the confusion. This makes it important to understand such terminology, namely the difference between being arrested, charged, and convicted to better comprehend the process.

Essentially, arrest may occur at the start of the process where police apprehend a suspect. They may then be charged with an offence and will be considered convicted if they plead or are found guilty. Our criminal lawyers Sydney team explain this in more depth below.

What is an Arrest?

An arrest involves a person being apprehended and taken into custody and can occur before you are charged with an offence.

You may be arrested where there is an outstanding warrant for your arrest, or without a warrant where you are committing or have committed an offence, and the police officer is satisfied that the arrest is reasonably necessary.

Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) governs arrest without a warrant.

In order for the arrest to be ‘reasonably necessary’, it may be for any one or more of the following reasons:

  • to stop you from committing or repeating an offence,
  • to stop you from fleeing from a police officer or from the location of the offence,
  • to enable enquiries regarding identification details if it cannot be readily established or if the police officer suspects on reasonable grounds that the identity information provided is false,
  • to ensure you are brought before a court regarding the alleged offence,
  • to obtain property in your possession that is connected with the offence,
  • the preserve evidence or prevent fabrication of it,
  • to prevent any interference by you to any person who may be a witness,
  • to protect the safety and welfare of any person (including yourself),
  • the seriousness and nature of the offence.

The requirement of arrest being ‘reasonably necessary’ is imposed due how police officers can choose to charge someone with an offence without arresting them.

In New South Wales, this can be done via ‘field court attendance notice’ which is essentially a yellow slip of paper issued on the spot which contains your details, the court date, court location, what you have been charged with, and the police officer’s details. This is issued on the spot.

It may also be done by ‘future court attendance notice’ which is a notice given after the incident, which you should receive via mail.

Subsequent to arresting someone, police officers are required to, as soon as reasonably practicable, take the person before an authorised officer, such as a Magistrate, to be dealt with according to law.

However, a police officer may discontinue the arrest at any time, without taking the arrested person before an authorised officer.

During an arrest, police should inform you that you are under arrest and why you are being arrested.

They should also explain your rights to you, including the right to silence, as well as provide you with an opportunity to speak to a lawyer.

Police officers who exercise the power to arrest another may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.

Criminal Charge Book: Charged vs Convicted

A charge is essentially where you are formally accused of an offence by the police, which commences the court process. At the charge stage, you are presumed innocent until proven guilty. You may then be convicted only after being found guilty.

You may receive your charge when you are arrested and taken back to the police station, or where police issue you with a ‘field court attendance notice’ or send you a ‘future court attendance notice’.

You will be required to attend court on the date specified in this notice.

The paperwork will specify what offence/s you have been charged with. You will also be provided with a copy of the police ‘facts sheet’ which details the incident which the police alleged occurred, prior to or at the first court date.

Police are required to have reasonable grounds to suspect that an offence has been committed, and sufficient evidence to substantiate the criminal charge.

When you are charged with an offence police may let you go without bail conditions, impose bail conditions, or refuse bail. If you are refused bail by police, you can apply for bail at court, with the court then in charge of making the determination.

What is a Conviction?

If you are convicted of an offence, this means that you have been found guilty by the Court, which can occur when you plead guilty or the case against you was proven beyond a reasonable doubt after a defended hearing or trial.

After you have been convicted of the offence, the matter will proceed to sentence. However, at sentence, there are options which allow the Court not to record a conviction against an offender.

Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) outlines the three ‘orders’ which may be made when a court decides not to convict an offender.

This includes the most lenient penalty being a section 10(1)(a) order which is an order directing that the relevant charge be dismissed with no conviction recorded.

It also includes a section 10(1)(b) order which is known as a ‘conditional release order without conviction’. This is essentially a good behaviour bond, which may be ordered for up to two years.

The standard orders associated with a conditional release order include that you are to be of good behaviour, not commit any further offences, and attend court if required to do so.

The other non-conviction option is a section 10(1)(c) which is known as an ‘intervention plan without conviction’. This is an option exercised less often than those aforementioned and involves the offender being required to participate in an intervention program and to comply with any plan arising out of the program.

Receiving a non-conviction outcome can be incredibly important in that it avoids the legal and social consequences of a recorded conviction.

If you pled not guilty, and were found guilty after a defended hearing, even where you receive a non-conviction sentence order, if you choose to appeal the finding of guilt it will be classified as a ‘conviction appeal’ as you have nonetheless been found guilty.

Click here to find out how long a criminal record lasts?

What are Criminal Offences?

Criminal offences are crimes that each State and Territory prohibit by imposing strict penalties, including terms of imprisonment. The greater the seriousness of the crime, the greater the penalty will be to meet the purposes of punishment, including general and specific deterrence, retribution and rehabilitation.

Criminal offences vary from drink driving offences to murder, and everything in between such as domestic violence, white collar crimes, sexual assaults, and drug offences.

By Poppy Morandin and Jimmy Singh.

Published on 10/01/2024

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Criminal Defence Lawyers Australia are Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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