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Practice standards updates

This webpage provide information for panel members about the June 2019 updates made to the following panel Practice Standards:

The updated practice standards are available for download at the Practice standards in legally aided matters web page.

What's been updated

Appellate criminal law barrister practice standards (version 3.1)

Section / ClauseDetails
Section 4 [New]New section titled ‘Responsibility to Others’.
Clause 4.1 [New]Conduct all communication in a courteous, prompt and professional manner.
Clause 4.2 [New]Comply with time limitations, procedural steps, the practice directions of the Court or Tribunal and any undertakings given to the Court or Tribunal.
Clause 4.3 [New]

Avoid unnecessary expense or waste of time by ensuring that:

(i) documents are served or filed on time;

(ii) documents served, filed or given to the client are legible;

(iii) the client is aware of medical appointments, conferences and hearing dates and understands the importance of attending promptly and on time;

(iv) witnesses are aware of conferences and hearing dates and understand the importance of attending promptly and on time;

(v) court commitments are accurately diarised.

Clause 6.2 [Update]

Removed from the last part of the clause: "...that is, if the Court “considers that no substantial miscarriage of justice has actually occurred”, despite the grounds of appeal being established."

[It is intended that the change will make it clear that the panel barrister must consider both the conviction proviso and the sentence proviso in s. 6 of the Criminal Appeal Act 1912 (NSW).]

Clause 6.5 [New]

Merit Test A applies to applications for legal aid to respond to an interlocutory appeal under s.5F or to respond to a Crown sentence appeal under s.5D, s.5DA, s.5DB, and s.5DC of the Criminal Appeal Act 1912 (NSW) (Criminal Law Policies 4.13.1 and 4.13.2). Criminal Law Guideline 1.14.2 provides guidance on considering whether the applicant satisfies Merit Test A when responding to an appeal. Guideline 1.14.2 says there is a presumption of merit on the basis that there is a judgment or order that is favourable to the applicant and is the subject of the appeal brought by another party to the proceedings. In applying Merit Test A, lawyers should take into consideration the following:

(i) Would a grant benefit the applicant by assisting them to retain the favourable decision or at least minimising any harm that might arise from altering the favourable decision;

(ii) Would a grant avoid the harm and delays that might arise from the applicant being unrepresented on appeal;

(iii) That a favourable decision would indicate reasonable prospects of success; and

(iv) That the CCA has a strong preference for parties to be appropriately represented as:

a) the Court may want to raise its own arguments or ask the parties questions;

b) the respondent may be able to argue in some circumstances that even where the trial judge has made a mistake the Court should exercise its discretion and allow the decision to stand; and

c) it would avoid delays.

NOTE: these considerations can also be taken into account when applying the “appropriate expenditure of limited legal aid funds” test.

Clause 6.6 [New] Where a client is responding to a s. 5F appeal, and a barrister from the Indictable and Complex Criminal Law Barrister Panel has been retained in the substantive matter, that barrister may be briefed for the CCA matter even if they are not on the Appellate Criminal Law Barrister Panel. The instructing solicitor will consult with Grants to determine the most appropriate barrister in the circumstances, and may determine that a barrister from the Appellate Criminal Law Barrister Panel is required for the response to the s. 5F appeal (e.g. due to the complexity of the matter, a lack of relevant experience, issues of availability and timing of the hearing etc.).
Clause 6.7 [New] Where the client is seeking to commence a s. 5F appeal, a new grant of aid is required and only counsel on the Appellate Criminal Law Barrister Panel can be briefed to appear. Guideline 1.14.2 does not apply in these circumstances (i.e. there is no presumption of merit).

Indictable and complex criminal law barrister practice standards (version 1.2)

Section / ClauseDetails
Clause 5.7 Comply with the principles set out in the current version of the Best Practice Guide to Case Conferencing co-authored by Legal Aid NSW, the NSW Office of the Director of Public Prosecutions and the Commonwealth Director of Public Prosecutions.
Section 7 [New] New section titled 'Responding to a s. 5F Appeal Filed by the Crown'.
Clause 7.1 [New]

Merit Test A applies to applications for legal aid to respond to an interlocutory appeal under s.5F or to respond to a Crown sentence appeal under s.5D, s.5DA, s.5DB, and s.5DC of the Criminal Appeal Act 1912 (NSW) (Criminal Law Policies 4.13.1 and 4.13.2). Criminal Law Guideline 1.14.2 provides guidance on considering whether the applicant satisfies Merit Test A when responding to an appeal. Guideline 1.14.2 says there is a presumption of merit on the basis that there is a judgment or order that is favourable to the applicant and is the subject of the appeal brought by another party to the proceedings. In applying Merit Test A, lawyers should take into consideration the following:

(i) Would a grant benefit the applicant by assisting them to retain the favourable decision or at least minimising any harm that might arise from altering the favourable decision;

(ii) Would a grant avoid the harm and delays that might arise from the applicant being unrepresented on appeal;

(iii) That a favourable decision would indicate reasonable prospects of success; and

(iv) That the CCA has a strong preference for parties to be appropriately represented as:

a) the Court may want to raise its own arguments or ask the parties questions;

b) the respondent may be able to argue in some circumstances that even where the trial judge has made a mistake the Court should exercise its discretion and allow the decision to stand; and

c) it would avoid delays.

NOTE: these considerations can also be taken into account when applying the “appropriate expenditure of limited legal aid funds” test.

Clause 7.2 [New] Where a client is responding to a s. 5F appeal, and a barrister from the Indictable and Complex Criminal Law Barrister Panel has been retained in the substantive matter, that barrister may be briefed for the CCA matter even if they are not on the Appellate Criminal Law Barrister Panel. The instructing solicitor will consult with Grants to determine the most appropriate barrister in the circumstances, and may determine that a barrister from the Appellate Criminal Law Barrister Panel is required for the response to the s. 5F appeal (e.g. due to the complexity of the matter, a lack of relevant experience, issues of availability and timing of the hearing etc.).
Clause 7.3 [New] Where the client is seeking to commence a s. 5F appeal, a new grant of aid is required and only counsel on the Appellate Criminal Law Barrister Panel can be briefed to appear. Guideline 1.14.2 does not apply in these circumstances (i.e. there is no presumption of merit).
Clause 8.1 [Update] Updated definition of legally aided complex criminal law matters.

Complex criminal law solicitor practice standards (version 2.6)

Section / ClauseDetails
Section 3 [New] New section titled ‘Responsibility to Others’.
Clause 3.1 [New] Conduct all communication in a courteous, prompt and professional manner.
Clause 3.2 [New] Comply with time limitations, procedural steps, the practice directions of the Court or Tribunal and any undertakings given to the Court or Tribunal.
Clause 3.3 [New]

Avoid unnecessary expense or waste of time by ensuring that:

(i) documents are served or filed on time;

(ii) documents served, filed or given to the client are legible;

(iii) the client is aware of medical appointments, conferences and hearing dates and understands the importance of attending promptly and on time;

(iv) witnesses are aware of conferences and hearing dates and understand the importance of attending promptly and on time;

(v) court commitments are accurately diarised.

Clause 4.3.1 [New] Comply with the principles set out in the current version of the Best Practice Guide to Case Conferencing co-authored by Legal Aid NSW, the NSW Office of the Director of Public Prosecutions and the Commonwealth Director of Public Prosecutions.
Sub-section 7.2 [New] New sub-section titled 'Assessing Merit when Responding to a s. 5F Appeal or Crown Appeal'.
Clause 7.2.1 [New]

Merit Test A applies to applications for legal aid to respond to an interlocutory appeal under s.5F or to respond to a Crown sentence appeal under s.5D, s.5DA, s.5DB, and s.5DC of the Criminal Appeal Act 1912 (NSW) (Criminal Law Policies 4.13.1 and 4.13.2). Criminal Law Guideline 1.14.2 provides guidance on considering whether the applicant satisfies Merit Test A when responding to an appeal. Guideline 1.14.2 says there is a presumption of merit on the basis that there is a judgment or order that is favourable to the applicant and is the subject of the appeal brought by another party to the proceedings. In applying Merit Test A, lawyers should take into consideration the following:

(i) Would a grant benefit the applicant by assisting them to retain the favourable decision or at least minimising any harm that might arise from altering the favourable decision;

(ii) Would a grant avoid the harm and delays that might arise from the applicant being unrepresented on appeal;

(iii) That a favourable decision would indicate reasonable prospects of success; and

(iv) That the CCA has a strong preference for parties to be appropriately represented as:

a) the Court may want to raise its own arguments or ask the parties questions;

b) the respondent may be able to argue in some circumstances that even where the trial judge has made a mistake the Court should exercise its discretion and allow the decision to stand; and

c) it would avoid delays.

NOTE: these considerations can also be taken into account when applying the “appropriate expenditure of limited legal aid funds” test.

Clause 7.2.2 [New] Where the client is responding to a s. 5F appeal, the trial barrister may be retained to appear in the CCA, even if they are not on the Appellate Criminal Law Barrister Panel. The instructing lawyer must consult with Grants to determine the most appropriate barrister in the circumstances, and it may be determined that a barrister from the Appellate Criminal Law Barrister Panel is required (e.g. due to the complexity of the matter, a lack of relevant experience by the trial barrister, issues of availability and timing of the hearing etc.). 
Clause 7.2.3 [New]  Where the client is seeking to commence a s. 5F appeal, a new grant of aid is required and only counsel on the Appellate Criminal Law Barrister Panel can be briefed to appear. Guideline 1.14.2 does not apply in these circumstances (i.e. there is no presumption of merit).  
Section 10 [New] New section titled ‘Training’.
Clause 10.1 [New] Undertake training as required by Legal Aid NSW.
Clause 10.2 [Previously 2.14] Complete at least five CPD units each year specifically relevant to the practice of Criminal law.
Clause 11.1 [Update] Updated definition of legally aided complex criminal law matters.

Indictable criminal law solicitor practice standards (version 1.2)

Section / ClauseDetails
Clause 4.3.1 [New] Comply with the principles set out in the current version of the Best Practice Guide to Case Conferencing co-authored by Legal Aid NSW, the NSW Office of the Director of Public Prosecutions and the Commonwealth Director of Public Prosecutions.
Sub-section 4.10 [New] New sub-section titled 'Responding to a s. 5F Appeal Filed by the Crown'.
Clause 4.10.1 [New]

Merit Test A applies to applications for legal aid to respond to an interlocutory appeal under s.5F or to respond to a Crown sentence appeal under s.5D, s.5DA, s.5DB, and s.5DC of the Criminal Appeal Act 1912 (NSW) (Criminal Law Policies 4.13.1 and 4.13.2). Criminal Law Guideline 1.14.2 provides guidance on considering whether the applicant satisfies Merit Test A when responding to an appeal. Guideline 1.14.2 says there is a presumption of merit on the basis that there is a judgment or order that is favourable to the applicant and is the subject of the appeal brought by another party to the proceedings. In applying Merit Test A, lawyers should take into consideration the following:

(i) Would a grant benefit the applicant by assisting them to retain the favourable decision or at least minimising any harm that might arise from altering the favourable decision;

(ii) Would a grant avoid the harm and delays that might arise from the applicant being unrepresented on appeal;

(iii) That a favourable decision would indicate reasonable prospects of success; and

(iv) That the CCA has a strong preference for parties to be appropriately represented as:

a) the Court may want to raise its own arguments or ask the parties questions;

b) the respondent may be able to argue in some circumstances that even where the trial judge has made a mistake the Court should exercise its discretion and allow the decision to stand; and

c) it would avoid delays.

NOTE: these considerations can also be taken into account when applying the “appropriate expenditure of limited legal aid funds” test.

Clause 4.10.2 [New] Where the client is responding to a s. 5F appeal, the trial barrister may be retained to appear in the CCA, even if they are not on the Appellate Criminal Law Barrister Panel. The instructing lawyer must consult with Grants to determine the most appropriate barrister in the circumstances, and it may be determined that a barrister from the Appellate Criminal Law Barrister Panel is required (e.g. due to the complexity of the matter, a lack of relevant experience by the trial barrister, issues of availability and timing of the hearing etc.).
Clause 4.10.3 [New] Where the client is seeking to commence a s. 5F appeal, a new grant is required and only counsel on the Appellate Criminal Law Barrister Panel can be briefed to appear. Guideline 1.14.2 does not apply in these circumstances (i.e. there is no presumption of merit).
Section 6 [New] New section titled ‘Training’.
Clause 6.1 [New] Undertake training as required by Legal Aid NSW.
Clause 6.2 [Previously 2.14] Complete at least five CPD units each year specifically relevant to the practice of Criminal law.
Clause 7.1 [Update] Updated definition of legally aided complex criminal law matters.

Children's criminal law practice standards (version 2.2)

Section 9 [New] New section titled ‘Training’.
Clause 9.1 [New] Undertake training as required by Legal Aid NSW.
Clause 9.2 [Previously 3.15] Complete at least five CPD units each year specifically relevant to the practice of representing children and/or advocacy.
[Previously Section 10] Removed Children's Legal Service Bulletin section

Audit

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

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.