Go to content

Appellate criminal law barrister panel practice standards update

This webpage provides information for current panel members of the Appellate Criminal Law Barrister Panel about the revision made to panel practice standards. The revised practice standards take effect from 2 July 2018.

The Appellate Criminal Law Barrister Panel Practice Standards now replace the Specialist Barrister Panel Practice Standards (Criminal Appellate Matters).

Indictable appeals

Legal Aid NSW will be monitoring legally aided Indictable Appeal matters to ensure that relevant practice standards, policies and guidelines are being appropriately applied to appellate matters. This will include consideration of the outcomes of all legally aided higher court appellate matters and the advices provided by panel barristers in respective matters.

Barristers

Appellate Criminal Law Barrister Panel barristers are required to comply with new Grants procedures for Indictable Appeal matters as set out in the Appellate Criminal Law Barrister Panel Practice Standards. The new procedures are summarised below:

  • Providing advices (if there is no merit) or grounds and settled submissions and the short note confirming merit (if there is merit).
  • Reviewing the brief to ensure that it includes all necessary documentation and transcript to prepare an advice (if there is no merit) or grounds of appeal and submissions and appear (if there is merit).
  • Where if they form the view that Legal Aid NSW Merit Test A is satisfied, barristers will:
    • Discuss the relative merit of the available grounds of appeal with the instructing solicitor.
    • Proceed to write the grounds and submissions of the appeal by reference to Conviction Appeals, Sentence Appeals and High Court Appeals.
    • Attach to those grounds and submissions a short note that they have found the appeal has merit.
  • In considering whether an applicant for legal aid has reasonable prospects of success in an appeal before the Court of Criminal Appeal, barristers should take into consideration that the Court may dismiss the appeal on the basis of the proviso in section 6 of the Criminal Appeal Act 1912; that is, if the Court “considers that no substantial miscarriage of justice has actually occurred”, despite the grounds of appeal being established.
  • Where if the panel barrister forms the view that Legal Aid NSW Merit Test A is not satisfied, they will provide a comprehensive advice to the instructing solicitor for it to be provided to Legal Aid NSW.
  • In an all grounds appeal if the merit test is satisfied for only one limb, i.e. conviction or sentence then a merit advice is required for the other limb which does not satisfy the merit test

Solicitors

There are important changes to the Complex Criminal Law Solicitor Practice Standards clarifying the requirements for briefing counsel to provide merit advices for appeals.

Panel barristers must be aware of these changes and more information is available at the Complex Criminal Law Solicitor Panel Practice Standards update web page.

Audit

Panel service agreements require barristers to comply with the Practice Standards as amended from time to time. Legal Aid NSW may audit panel barristers for compliance with practice standards. It is therefore important that panel barristers are familiar with the Practice Standards.

What's been updated

Section / ClauseDetails
Clause 2.1Provide advices (if there is no merit) or grounds and settled submissions and the short note confirming merit (if there is merit) promptly and within court timetables.
Clause 2.4Review the brief to ensure it includes all necessary documentation and transcript to prepare an advice (if there is no merit) or grounds of appeal and submissions and appear (if there is merit). 
Clause 2.5 Advise the solicitor promptly if an application to the Registrar for an extension of time is required for the Notice of Intention to Appeal.
Clause 5.1

If the barrister forms the view that the Legal Aid NSW Merit Test A is satisfied, i.e. “reasonable in all the circumstances”. The barrister will:

(i) Discuss the relative merit of the available grounds of appeal with the instructing solicitor.

(ii) Proceed to write the grounds and submissions of the appeal by reference to:

a. Conviction Appeals

Whether the proceedings have involved:

* an unreasonable verdict

* a wrong decision on a question of law, or

* a miscarriage of justice.

b. Sentence Appeals

* Identification of error(s) made in the exercise of the sentencing court’s discretion.

c. High Court Appeals

* Section 35A of the Judiciary Act 1903 (Cth) (iii) Attach to those grounds and submissions a short note that the barrister has found the appeal has merit.

Clause 5.2 When considering whether an applicant for legal aid has reasonable prospects of success in an appeal before the Court of Criminal Appeal, the barrister should take into consideration that the Court may dismiss the appeal on the basis of the proviso in section 6 of the Criminal Appeal Act 1912; that is, if the Court “considers that no substantial miscarriage of justice has actually occurred”, despite the grounds of appeal being established.
Clause 5.3If the barrister forms the view that the Merit Test A is not satisfied, the barrister will provide a comprehensive advice to the instructing solicitor for it to be provided to Legal Aid NSW.
Clause 5.4In an all grounds appeal if the merit test is satisfied for only one limb, i.e. conviction or sentence then a merit advice is required for the other limb which does not satisfy the merit test.

Contact for further information

If you have any enquiries about the panel practice standards, please contact the Professional Practices by e-mail at panels@legalaid.nsw.gov.au or on 02 9219 5662.

If you have any enquiries about grants processes in relation to appellate criminal law matters, please contact the Grants Crime Team by e-mail at grants.crime@legalaid.nsw.gov.au.