Cleansing or appealing a very old criminal conviction

February 25, 2014 6:05 AM

I have a criminal conviction for a really minor (albeit drug related) offence from 25 years ago. Is there any way I can have this struck from my record?

I was in the Navy at the time (in Western Australia), and I was living in a Naval dwelling with my defacto wife at the time. The naval and local police came and searched my house and found a bong (referred to as a 'smoking implement' in my recorded conviction). I was arrested and charged. A Petty Officer, with no legal training, acted as my defence, and ordered me to plead guilty. The Judge fined me $120 and recorded a conviction. I have managed to have the conviction 'spent' which means that it's not visible to employers, however for Visa and immigration purposes it is definitely visible. The consequence of this recording means that I have been forced to lie on various Visa applications when travelling, and is likely to negate future migration for myself and family.

Does anyone know if such old cases can be appealed or is there some precedent that may be relevant?

posted by anonymous to Law & Government (3 answers total)

Speaking from a British perspective, it sounds like Australia's Spent Convictions Act may be similarish to our Rehabilitation of Offenders Act in defining what 'spent' means. And the irritating answer is ultimately it's down to who's asking and whether they care. For example, and ignoring any particulars of US-Australian immigration, you'd need to disclose arrests and convictions (even if 'spent') to US officials in applying for a US visa (and visa-waiver travel is not allowed merely by virtue of being arrested).

However, at least in the UK (and so potentially in Australia too), police forces are allowed to remove information from the records that essentially hold each individual's criminal record and could therefore be verified or polled by third parties you may not want to disclose to, although this does not apply to certain types of conviction or situations where custodial sentences were issues.

I think your next port of call is to find an institution or charity in Australia that can give very specific advice on this. One we have here in the UK is called Unlock and you essentially need the Australian version of that. I know the people who work there are very friendly and if you have no luck, they might be able to point you in the right direction if you tweet them @unlock2000.
posted by wackybrit at 6:16 AM on February 25, 2014 [1 favorite]

The consequence of this recording means that I have been forced to lie on various Visa applications when travelling, and is likely to negate future migration for myself and family.

I don't know about that. It'll cause people to ask questions, but your answers may well be satisfactory. You didn't kill or hurt anyone. You didn't steal anything. And you weren't convicted for manufacture or distribution, i.e., you don't look like a dealer.

What you're going to need to do is to contact a local criminal defense attorney. They'll know how to deal with old convictions like this. It's something that comes up fairly regularly in my own practice as a criminal defense attorney in the States.
posted by valkyryn at 7:24 AM on February 25, 2014 [2 favorites]

I know someone with a much more serious (as in prison time) conviction who requested and received a permanent visa exemption for travel to Australia. There were hoops, but they weren't that hard to jump through. Any bureaucrat with sense will see how minor that conviction is, so read up on the law for the country you're going to and find the hoops.

But don't lie any more, because that's a much more significant reason for them to deny you access.
posted by Sebmojo at 1:03 PM on February 25, 2014