Diversion is a process by which a person charged with a relatively low-level offence can avoid a criminal record by going through the Diversion Program. This program requires you to take responsibility for the offending but does not thereafter impose any criminal record. It is essentially a Court warning and a way to avoid remaining in the formal criminal stream of Court.
At present, a person seeking Diversion has to be recommended by Police with the filing of a Notice. There are those in the legal industry however who are seeking a review of this requirement, so that the Court can recommend a person for Diversion without a recommendation from the Police.
The following are the steps that you must follow to maximise your prospects of success:
- Get legal advice. Just because you are offered Diversion, it doesn’t mean that the Magistrate will grant the request.
- Obtain the Notice. This can obtained from the Informant / Police Prosecutor.
- Ensure that it is filed with the Court. It is amazing how many notices go missing or stay in a Prosecutor’s file without ever making it to the Court file.
- Complete your Diversion Questionnaire. Take your time to go through this with your lawyer. The Court requires this information before it proceeds with your Application. Also, if you are applying for Diversion “on the papers” (without a Hearing before a Magistrate), there are other forms that you will need to complete, as well as written submissions. You should talk to your lawyer about this to maximise your prospects of success.
- Victim consultation. If there is a victim who has been affected by the offending, they need to be contacted about the Diversion Application. They are entitled to be heard in relation to it. However, their views are not determinative. Also, if at least two messages have been left for a Victim and they have not responded to the Court, the Court will often proceed without obtaining their views. Your lawyer should be ensuring that the Court knows that there is a victim in the matter, because a lack of contact is often a reason for Diversion being adjourned. This costs you more time and money than if you had ensured that the victim was consulted in the first place.
- Get your subjective materials. The Court wants to know about who you are and how the offending occurred. Your lawyer should be obtaining character references and any psychological, medical treatment or other reports which might assist you in obtaining Diversion.
- Arrange the Diversion Interview. You must contact the Diversion Coordinator to arrange a time for a Diversion Interview. Before the Diversion Application can go before a Magistrate, you will be interviewed by a Registrar in the Diversion area of the Court. They want to consider the alleged offending, ensure that you take responsibility for the conduct and also consider any materials you have in support. This interview is an essential part of the process because this same Registrar will go and speak with the Magistrate who will decide your Diversion Application in chambers. They will talk about how you went and their impressions of you. So be nice! Ensure that you have a date for your interview before the matter proceeds in Court.
- Appear at your Diversion Hearing. Once you are armed with all of the above, you will appear before a Magistrate in the Diversion List. The Magistrate may have some questions of you or your lawyer. They will likely give you a little speech and warn you against repeat offending.
- Complete all conditions of your Diversion! It goes without saying that you need to complete all conditions of your Diversion. If you don’t, it goes without saying that you will be hauled back into Court. It is also unlikely that you will be granted Diversion again. If you think That you may not be able to comply with the conditions of Diversion (for whatever reason) call your lawyer and raise the matter with the Court. It is possible to get an extension, particularly if there are matters outside of your control.
For more information about Diversion, visit the Magistrates’ Court website or contact our office for a consultation. The best legal representation gives you the best chance of being granted Diversion.
