The Difference Between an Arrest, Charge and Conviction

Progressing through the various stages of Australia’s criminal justice system can be confusing and overwhelming. While it is rarely an easy process, having a strong understanding of the differences between arrests, charges and convictions can make your experience more tolerable and comprehensible.

Read on to understand more about arrests, charges and convictions in New South Wales, and what distinguishes these stages of the criminal justice system from each other.

What is an arrest?

An arrest is the apprehending and taking into custody of an individual prior to charges being laid. Most commonly, arrests are performed by police officers. A police officer may arrest you if they have a reasonable suspicion that you have committed or are about to commit a summary or indictable offence, or if there is an outstanding warrant for your arrest.

An arrest takes place when:

• police take hold of you; or
• police tell you that you are under arrest; or
• you are arrested by written warrant.

Once you have been placed under arrest, it is an offence to physically resist police. After you have been arrested, you may be asked to participate in a police interview.

Normally, the maximum amount of time for which you can be detained without charge is six hours. At the end of this period, you must either be charged or released without charge.

If you are suspected of having committed an indictable offence, the police may wish to obtain forensic samples from your body for DNA analysis. Police must first ask for your consent for forensic samples to be taken.

However, in many cases, police have the power to perform compulsory procedures for procuring DNA evidence. If you have been arrested, it is likely that the police have the power to perform these procedures, whether or not you wish for them to do so.

What to do when you are arrested

During the process of being arrested, you should comply with police instructions. Generally, you are not required to answer any questions asked by a police officer. You should tell the police that you need independent legal advice before answering any questions. Remember that anything you say to a police officer can be used against you in court.

If a police officer asks for your name and address, it is usually best to provide these details. Other than that, you should remain silent unless otherwise advised by your lawyer. You can read more about the right to silence in NSW here. You should also request an interpreter if you need one.

In the case of certain serious criminal offences, a refusal to provide information regarding your alleged involvement (or lack of involvement) can be used as an unfavourable interference against you in future legal proceedings regarding the same case.

Additionally, if you choose to introduce new information later in the proceedings, the court may question why you did not provide this information during your initial period of questioning.

What is a charge?

During your period of detention, the police may choose to charge you with an offence. This means that the police believe the evidence that you committed an offence is such that the matter should be heard in court.

When you are charged, you will have your formal charge read out to you at the police station. Anything you say at this time can be recorded and used against you in court.

Upon being charged, you have the right to apply for bail. The police may grant bail while you are at the police station. If not, you or your legal representative should request a bail hearing. According to the Bail Act 2013, bail applications should be dealt with “as soon as reasonably possible”.

In the majority of cases, bail may only be refused if the court concludes that there is an ‘unacceptable risk’ that the accused person if released from custody, will:

• fail to appear at future court proceedings,
• commit a serious offence if released,
• endanger the safety of victims or the community, or
• interfere with witnesses or evidence.

What to do when you are charged

The best thing to do when the police read your formal charge is to give no response at all. Simply follow the instructions of your legal representative and begin the process of applying for bail.

If you are granted bail, it is critically important that you adhere to your bail conditions. Breaching bail conditions is an offence and can be extremely damaging to your existing legal proceedings.

Common bail conditions include:

• Lodgement of cash bail
• Forfeiture of a sum of money to the court if you fail to appear
• That you stay away from a person or an area
• That your surrender your passport
• That your report to a police station on a basis the court sees fit
• Curfew conditions

After being charged with a criminal offence, you will receive a Court Attendance Notice (CAN), telling you when and where you must attend court. Ensure you follow the instructions of your CAN closely, as failure to appear in court can have harsh consequences.

What is a conviction?

A conviction means that you have been found guilty of an offence by the court. This may be because you plead guilty, or because you were proven guilty beyond a reasonable doubt despite not pleading guilty.

Following a conviction, you will be sentenced. This may occur on the day of the verdict, or within around 6-8 weeks. As part of your sentencing, you may be subject to criminal penalties such as fines, probation or jail time.

Not all convictions are recorded. Section 10 of the Crimes (Sentencing Procedure) Act 1999 allows for the court to discharge defendants found guilty without recording a conviction. For the most part, there will be no record that your conviction occurred. This is often an excellent outcome due to the effects that criminal records can have throughout your life.

For example, in many instances, you are required to disclose your conviction records throughout the hiring process for a new job. Prospective employers may go beyond questioning and look into your employee criminal record themselves. A recorded criminal conviction may also result in you losing your current job, while a successful Section 10 gives you a better chance of keeping it.

What to do when you are convicted

Before you are sentenced, your legal representation may ask the magistrate or judge to order a pre-sentence report. Once it has been prepared, it should be given to you and your lawyer to comment on before sentencing.

You and your legal representation may make submissions before sentencing occurs, based on the objective seriousness of the offence and your involvement, and on subjective factors relating to you as an individual.

The standards for evidence in sentencing are lower than the standards for evidence in a criminal trial. This allows you to include evidence such as character references without meeting the requirements of admissibility involved in a trial.

At your sentencing, you will find out what punishment the court intends to hand down. If your sentence involves imprisonment, you will generally be taken into custody immediately.

The next stage of the criminal process is appealing. You should appeal any decision you don’t accept as soon as possible. Most of the time, appeals must be lodged within 28 days of the original sentence being handed down.

Generally, the appeals process involves appealing in a higher court. If you were convicted in a Local Court, your appeal will be heard in a District Court (although in some instances you may appeal Local Court convictions in the Supreme Court). If you were convicted in a District Court, your appeal will be heard in the Supreme Court or the Court of Criminal Appeal.

Frequently asked questions

What is a conviction vs arrest?

A conviction means that a defendant has been found guilty of an offence by the court, while an arrest is the apprehending of an individual suspected of having committed, or of being about to commit, a summary or indictable offence. They are on two separate ends of the criminal justice process.

What is a citizen’s arrest?

Section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002 states that a person other than a police officer may arrest a person if:

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

(c) the person has committed a serious indictable offence for which the person has not been tried.

A person who arrests another person under this section must, as soon as is reasonably practicable, take the person to an authorised officer to be dealt with.

Do arrest records show up on a background check?

Your arrest record will not show up on most background checks. However, your disclosable charges and convictions will show up on the majority of background checks.

Arrested, charged or convicted? LY Lawyers can help

LY Lawyers is here to assist you at all stages of your criminal justice proceedings. Our team has extensive experience achieving excellent outcomes for clients throughout the judicial process.

If you have been placed under arrest or have been charged with a crime, seek legal assistance immediately. Contact Sydney’s most trusted criminal lawyers today at 1300 595 299 or visit one of our locations. We’re here for you 24/7.