In most circumstances where a conviction is not recorded, the decision would not normally be available publicly online. Almost all convictions that are not recorded are convictions that take place in the Magistrates Court. The Magistrates Court does not publish its decisions, but decisions are available from transcripts on request in most instances.
When DHG pleaded guilty before the Industrial Magistrates Court in 2011, he was fined and ordered to pay costs. In its decision the Industrial Magistrate also ordered that no conviction be recorded. It was determined that recording a conviction would unfairly impact the employment prospects and economic wellbeing of DHG.
Subsequently the Department of Justice and Attorney-General (The Department) published via its website details of the case, including DHG and his sentence.
In 2013, a Google search of DHG’s name returned the publication. As a result DHG sought orders from the Supreme Court to remove the publication.
One of the primary reasons for the discretion afforded in recording a conviction is the potential for social prejudice against the defendant to be so grave that they will be continually punished well after their appropriate punishment has been served. This social prejudice severely impacts any potential of rehabilitation.
Where a conviction is not recorded, the conviction is not to be entered into any record, except the records of the court, and in the offender’s criminal history (for the purpose of appeals, proceedings against the offender for subsequent or same offences, and for proceedings in regards to contravention of the sentence).
A further (and more recent) exemption applies to departments, prosecuting authorities and legal representatives who may record the conviction if the recording is necessary for the legitimate performance of their respective functions. For example, a prosecutor may make a note on their file about the outcome.
DHG argued that the publication of the details of the case breached the provision against making a record of a case where a conviction is not recorded.
The Department argued that the publication was not a record for the purpose of the Act as it is informal and will be removed in 5 years time. In the alternative, the Department argued that the record was kept as a result of the legitimate performance of the department’s function.
The Court determined that the term record included the publication on the website. A record includes less formal documents, and a written record is permanent at the time of publication, despite plans later to have it destroyed.
Furthermore the Court determined that it was not necessary for the legitimate performance of the functions of the department to publish the record to the public.