Your Rights

Diversion

If you’re between 14 and 17, if you’re a suspect for a crime, you’ll be considered under the Youth Justice system. If you commit a minor offence, the police will usually try to use ‘alternative action’ so that you can learn from your mistakes without having to go through formal court processes.

Diversion is for some people aged 17 and older, and works in a similar kind of way. It is a programme where minor charges can be withdrawn if you meet the conditions set and agreed. You aren’t required to use a diversion or accept it if the police offer it to you, nor are you guaranteed diversion, but if you can get it, diversion is usually the best option for you if you’ve broken the law and want to avoid having a conviction on your record.

This section informs you about diversion.

What is diversion?

Diversion is a scheme that allows people to avoid a criminal conviction on minor and first-time offences after being charged, and are dealt with in an “out of court” way. This doesn’t mean there won’t be any consequences, but if you are offered diversion, and you complete the conditions set down, your charges can be withdrawn.

When can I get diversion?

The police will normally be willing to consider diversion for first time, minor offences and for people who are happy to admit guilt.

The decision is always discretionary – aka you don’t have a right to diversion. You should speak to your lawyer or duty lawyer to find out more about diversion. Generally, it’s highly unlikely that you’ll be able to get diversion for drink driving, boy racer or reckless driving charges.

Usually, you can only get diversion once. So if you’ve had diversion before, and you commit another crime, you probably won’t be able to get diversion again. The police will know whether you have been given diversion before.

How do I find out if I can get diversion?

If you think you might be eligible for diversion, you can politely ask the police officer who is handling your case whether you’re considered for diversion. If you’re already at court, you can talk to your duty solicitor and ask them to check with the prosecution about diversion. You will only find out definitely if you will be offered diversion after you have an interview with the Diversion Officer, and they tell you they will offer it to you.

You will also need to complete all the conditions set and agreed with the Diversion officer before diversion is completed and the conviction removed from your record.

How does the diversion process work?

After you’ve met the criteria for diversion and have been offered a diversion interview, you’ll have a meeting with the diversion officer. Normally if you’ve been to court, your lawyer or duty lawyer will ask for your case to be temporarily put off so you can complete your diversion interview and conditions.

If at the interview, the diversion officer agrees to offer you diversion, they will normally give you a paper with your conditions and a date to complete conditions by. You can discuss the conditions with the Diversion Officer if there is a good reason that you cannot complete it. It doesn’t mean the conditions will be changed, but it is always good to be honest about your circumstances.

If you meet all the conditions and show proof to the police, they can withdraw the charge when you next go to court and you won’t get a conviction.

What can I expect in a diversion interview?

You’ll have a face-to-face meeting with the diversion officer soon after your first appearance in court. At the interview, the rules will be explained by the diversion officer, and generally, you will need to accept responsibility for the crime and admit to committing the offence. You’ll generally need to show remorse (show that you’re sorry about what you’ve done) and be willing to take responsibility for your wrong actions.

Possible conditions will then be discussed and, if you and the diversions officer can come to an agreement, then a diversion agreement will be written and signed with your conditions.

If you can’t come to an agreement, or the diversion officer thinks diversion isn’t appropriate for you, you will be sent back to court for a judge to decide on whether you’re guilty or not and, if you are guilty, the consequences you will face.

What kinds of conditions will I have for diversion?

It depends on what you did. This is not an exclusive list, but you might need to:

• pay money to the victim;
• write an apology to the victim;
• pay for any damages you caused;
• donate money to charity;
• do community work;
• attend counselling or programmes;
• participate in a restorative justice process.

When you meet all the conditions, you need to show police proof of this so that they can withdraw the charges against you and you end up with no criminal record.
If you don’t complete the conditions, you won’t get diversion and you will have to go back to court. You could end up with a conviction.

What happens if I’m turned down for diversion?

You don’t have a right to diversion, so the prosecution doesn’t have to give it to you. You can’t appeal it, but you can write to them for a reconsideration.
If you still don’t get diversion and have to go to court, you should speak to the duty lawyer or your own lawyer and find out if you might be able to get a discharge without conviction (this can be hard to get).

If you do end up with a conviction, this can have consequences for you later in life.

See our convictions page for information about convictions and the Clean Slate Act.

To find out more about diversion, see the community law manual.