Things you did not know about a section 10
Section 10’s are famous and popular. It is the outcome most of our client’s are seeking when they contact us for assistance. Most people have heard of a Section 10. And if they haven’t, they quickly learn about them when they are charged by the police.
Unfortunately, due to its popularity, and the rumours about the possible meaning of a Section 10, it is the most confused area of law in the community.
To help you understand the complexities of the potential ways a Section 10 can be interpreted, we have listed 5 interesting points about Section 10s that most people do not know.
1. A Section 10 is still a finding in guilt of a charge or crime. It may still appear on your Criminal Record if and when a search is conducted.
2. A Section 10 is a discretion to a Magistrate or a Judge. It is not an automatic right,
regardless of how worthy of a Section 10 your matter may be.
3. If the Court orders a Section 10 with a good behaviour bond, it will appear on your
criminal record for the duration of the bond. While Section 10 itself clearly states that it is not a “conviction”, under the Criminal Records Act 1991, a Section 10 is actually defined as a conviction that becomes spent (that is, extinguished) as soon as the bond finishes. This means that if you need to show a clean criminal record in the near future (for example if you are about to apply for a job or travel overseas) you really need to obtain an outright Section 10.
4. For certain traffic offences, you cannot get more than one Section 10’s within a
period of 5 years.
5. After a Court grants you a Section10, (subject to some exceptions), you do not
have to disclose the offence or charge or even the Section 10 to your employer or anyone else. This applies even if you are asked directly about a Section 10.
It is interesting how employers are getting around how they pose questions to potential employees about their criminal history in the job applications. Many will ask about convictions, Sections 10s and/or “findings of guilt.” Most people applying for a job will assume that they have to provide all the information to the employer, including previous Section 10 that they may have obtained from a Court. This may not necessarily be the right way of dealing with the response.
The reason is that Section 12 of the Criminal Records Act 1991 states that you do not need to disclose a “spent conviction” to any one for any purpose.
The Act also defines Section 10 as a “spent conviction.”
That means that, arguably, even if you are asked directly by an employer about any previous Section 10’s or ‘findings of guilt” that you have received in the past, you do not have to disclose these to your employer as long as any Section10 bond has expired.
This is certainly an interesting area of law and you can easily see how confusing it can become.
We should point out that there has not been any actual case law on these matters yet. Accordingly, this commentary on Section 10s should not be read or taken as legal advice. It simply raises a position or interpretation of the law that may or may not be adopted by a Court, should it be asked.