Crime fee guidelines

1.1 Lump Sum Fee

The lump sum fee includes all

• preparation time
• court time (including mentions), and
• conferences with the client and witnesses.

1.2 Payment of fees above the lump sum amount

Additional court time

• Additional court time will be paid for time spent on the actual hearing or sentence, after the first 5 hours. Additional court time will be allowed at 5 hours per day.
• No extra time will be allowed for mentions.
• Waiting time will not be paid and must not be counted as time spent on the matter.

Additional preparation

• Additional preparation (3 hours) will be allowed where the matter is prosecuted by the NSW DPP.
• Additional preparation (3 hours) will be allowed where the legally aided client is charged with breaching an Extended Supervision Order.

2.1 The Fee Scale applies to:

• complex and non-complex strictly indictable matters
• complex and non-complex Children’s Serious Indictable offences
• indictable offences listed in Table 1 to Schedule 1 of the Criminal Procedure Act 1986 where an election has been made by the prosecution to proceed on indictment
• indictable offences listed in Table 1 to Schedule 1 of the Criminal Procedure Act 1986 where an election has been made by the defence to proceed on indictment where Legal Aid NSW is satisfied that election is appropriate in the circumstances of the case, and
• indictable offences listed in Table 2 to Schedule 1 of the Criminal Procedure Act 1986 where an election has been made by the prosecution to proceed on indictment.

2.2 What is a complex matter?

A complex criminal matter includes:

• All Supreme Court trials and pleas
• Manslaughter trials and pleas
• Matters where the trial is complex because of the nature of the charge or the defence. For example: sex slavery, fraud or money laundering charges where there are more than 30 counts and/or the total value is more than $500,000
• Matters where the maximum penalty is life imprisonment
• Trials identified by the trial judge as requiring significant case management pursuant to s141 Criminal Procedure Act 1986
• Where the trial length is estimated at 20 days or more
• Where the brief of evidence is more than 5,000 pages
• All terrorism matters, and
• Sexual assault trials where there are multiple complainants and/or multiple defendants.

2.3 Pre-charge Certification

2.3.1 Lump sum fee

The lump sum fee covers all necessary work involved at the pre-charge certification stage of proceedings which may include (but is not limited to):

• Perusal of the brief
• All conferences with client including gaol visits
• Taking instructions
• Negotiations with the prosecution, and
• All court appearances including mentions, summary hearing and summary sentence.

Note: the lump sum fees for pre-charge certification includes a component for preparation and reading the brief.

2.4 Post-charge Certification

2.4.1 Lump sum fee

The lump sum fee covers all other necessary work involved in the committal matter post charge certification which may include (but is not limited to):

• All conferences with client including goal visits
• Perusal of any additional brief material
• Briefing counsel (when approved)
• Negotiations with the prosecution
• Any application for an order for a witness to attend court to give evidence
• All court appearances including mentions, summary sentence, summary hearing and arraignment, and
• All preparation.

Note: the lump sum fees for post-charge certification include a component for preparation and reading the brief.

2.5 Approval to Brief Counsel

Approval to brief counsel at committal for case conferencing will only be granted if:

• The primary offence carries a maximum penalty of 21 years imprisonment or more
• The matter will be dealt with in the Supreme Court of NSW
• The matter involves an issue of fitness, or the client has raised a mental health defence (not criminally responsible)
• The matter involves the death of a person
• A public defender has the capacity to accept the brief and is of the opinion that the client is highly vulnerable
• The client is a child with a serious children’s indictable offence
• It is a matter involving sexual offences with multiple complainants and/or multiple defendants
• It is a matter in the Child Sexual Offence Evidence Program.

All other applications to brief counsel at committal will be considered on a case-by-case basis considering factors which include whether:

• The brief involves issues of legal or evidentiary complexity
• The defence is complex
• The solicitor, particularly in remote locations, lacks the requisite skill or experience to conduct the matter without Counsel.

Note: Briefing of Counsel prior to charge certification will not be approved.

2.6 Rules for Briefing Counsel

A practitioner authorised by Legal Aid NSW to brief a barrister will brief:

• A Public Defender, or
• If a Public Defender is not available, a barrister with appropriate experience.

Note: Legal Aid NSW may determine from time to time the circumstances in which it is not appropriate to brief a Public Defender: for example, at District Court Circuit Sittings not serviced by a Public Defender.

For a complex criminal matter, a barrister with appropriate experience is a barrister who has been appointed to the Complex Crime Barrister Panel (complex criminal matter), unless there are exceptional circumstances as determined by the Executive Director Criminal Law or their delegate.

2.7 Compliance with Indictable Panel Quality Standards

Where counsel is briefed at the EAGP (committal) stage for case conferencing, it is expected that they will be retained in the matter if it proceeds to trial or sentence.

2.8 Additional Preparation (Solicitors and Counsel)

Additional preparation in an EAGP (committal) matter will only be approved where Legal Aid NSW is satisfied that the volume of the brief warrants additional preparation.

Additional preparation will only be granted in extremely exceptional matters. The amount of extra preparation payable will be determined by the Executive Director Criminal Law or their delegate. 

Note: Any additional preparation approved will be deducted from any trial preparation fee should the matter proceed to trial.

3.1 Hearing

The appearance fee for the plea (making submissions on sentence) will be paid at the half day rate.

3.2 Arraignment, Mentions, Taking Sentence

The fee for attending at arraignment is part of the EAGP lump sum fee.  A fee will be paid for every further necessary mention. 

 This fee applies where the matter is listed for sentence but does not proceed. This fee also applies where sentence is adjourned for judgment and the practitioner attends to take sentence.

3.3 Briefing Counsel

Under the terms of the grant of legal aid, a practitioner can only brief counsel where Legal Aid NSW has given approval.

If a solicitor resolves the matter at case conference, for sentence they can decide either to:

• appear without counsel, or
• apply to brief counsel.

Approval for counsel to appear on sentence is at the discretion of the Executive Director Criminal Law or their delegate.

3.4 Direct Access Brief to Counsel

Legal Aid NSW may approve assigning a grant of aid for a District Court Sentence directly to counsel in accordance with the Quality Standards. In such circumstances counsel will be paid in accordance with the solicitor fee rate for District Court Sentence matters.  

3.5 Counsel Fees

The Fee Scale for the Complex Criminal Law Barrister Panel (the Panel) only applies where:

• The matter is complex, and
• The barrister is a member of the Panel.

4.1 Solicitor

Following EAGP (committal), a legal practitioner may seek additional preparation in relation to material not served prior to EAGP (committal).

Approval is subject to the Additional Preparation Guidelines [See Crime Fee Guideline 1.4.4].

4.2 Counsel

A fee for reading the brief will be paid to counsel once only. Counsel engaged at EAGP (committal) either on a direct access basis, or instructed by a solicitor will not be paid a further fee for reading the brief.

Preparation in addition to the initial trial grant will not be considered before arraignment unless there are exceptional circumstances. Approval is subject to the Additional Preparation Guidelines: See Crime Fee Guideline 1.4.4.

4.3 Senior Counsel

Under the terms of the grant of legal aid, a practitioner must can only brief senior counsel where approval has been given by Legal Aid NSW.  

Senior Counsel will only be approved where there are exceptional circumstances.

4.4  Client Conferences during trial

Both solicitor and counsel will be funded for two client conferences each week of the trial.

4.5 Guidelines for Additional Preparation

An application for payment of fees for additional preparation (including reading, conferences, listening to tape recordings, inspection of exhibits, views) are subject to the following guideline:

4.5.1  Before additional fees for preparation will be considered, Legal Aid NSW will require:

• an estimate of the amount of time it will take to read and prepare the case
• details of the nature and extent of preparation, including the nature of documents to be perused
• where counsel is briefed, details about which preparation is to be undertaken by counsel and which preparation will be undertaken by the solicitor, and
•  an estimate of the court time if the matter goes to hearing/trial.

4.5.2

If necessary, Legal Aid NSW will independently examine the documents and may require further and better particulars about the amount of preparation necessary.

4.5.3

Requests for additional preparation must be made within sufficient time for the request to be considered by Legal Aid NSW.

4.5.4

A practitioner must comply with the file management procedures outlined in the Quality Standards.

4.5.6

A practitioner is presumed to know the law. A fee will not be paid for researching the law.

4.5.7 

Additional fees for preparation will only be allowed where the preparation is necessary and in exceptional circumstances.

Solicitors and Counsel in criminal matters will be paid at a rate of 175% of the legal aid fee rates when:

• An order for costs is made in favour of the legally aided accused person under the Crimes (Appeal and Review) Act 2001 and the Criminal Procedure Act 1986, or
• An order for costs is made in favour of the legally aided accused person by the Supreme Court in prerogative writ matters or similar proceedings, or
• The legally aided accused person is granted a certificate under Section 2 of the Costs in Criminal Cases Act 1967, or
• An order for costs is made in favour of the legally aided person in proceedings under:
  • the Crimes (High Risk Offenders) Act 2006 or Terrorism (High Risk Offenders) Act 2017
  • the Child Protection (Offenders Registration) Act 2000, and the Child Protection (Offenders Prohibition Orders) Act 2004
  • the Criminal Code 1995 (Cth)
  • the Crimes (Serious Crime Prevention Orders) Act 2016, and
  • the Crimes (Criminal Organisations Control) Act 2012.

A legal practitioner may only claim the fee for a gaol visit if they attend the Correctional Facility (excluding court cells run by Corrective Services NSW) in person.

Note: Audio-visual appearances or conferences with clients are not “in person” gaol visits.