Crime guidelines

2.1.1 - Assessing merit in appeals to the Court of Criminal Appeal

When considering whether an applicant for legal aid satisfies the Merit Test in an appeal before the NSW Court of Criminal Appeal, the determining officer should take into consideration that the Court may dismiss the appeal on the basis of the proviso in the Criminal Appeal Act 1912 (NSW), s 6.

2.1.2 - Assessing merit when responding to s 5F appeals under the Criminal Appeal Act 1912 (NSW) and crown sentence appeals

When considering whether an applicant for legal aid satisfies the Merit Test to respond to an appeal under the Criminal Appeal Act 1912 (NSW), s 5F or to respond to a crown sentence appeal in the NSW Court of Criminal Appeal, the determining officer should take into consideration that 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.

Legal aid is available to an applicant who has been charged with breaches of both Commonwealth and state criminal laws.

Legal Aid NSW will administer the grant of aid as follows:

• Commonwealth legal aid funds will be used if, in the nature of the charges and the course of the hearing, the matter is essentially a Commonwealth criminal law matter,
• state legal aid funds will be used if, in the nature of the charges and the course of the hearing, the matter is essentially a state criminal law matter, and
• if there is a substantial mix of Commonwealth and state criminal law charges, Commonwealth and state funds will be used proportionately, as determined by Legal Aid NSW.

Note:  When assessing the status of a matter, a matter that is prosecuted by the Commonwealth Director of Public Prosecutions is taken to be essentially a Commonwealth matter.

Exceptional circumstances under Crime policy 2.1 Local Court may include (but is not limited to) the following:

2.3.1 - Where the applicant is 'at special disadvantage'

An applicant is 'at special disadvantage' if:

An applicant for aid is at special disadvantage if they are:

• a child or acting on behalf of a child, or
• a person who has substantial difficulty in dealing with the legal system by reason of a substantial:
  • mental health impairment 
  • cognitive impairment, or
  • physical disability.

Applying the 'at special disadvantage' test

The determination about whether the applicant satisfies the 'at special disadvantage' test must be made in the context of legally aided clients generally. In other words, a practitioner certifying that an applicant is 'at special disadvantage' must be satisfied that the applicant's circumstances are exceptional when considered against other legally aided clients. For applicants to be deemed 'at special disadvantage', they must satisfy the two limbs of the test: that is, they must have substantial difficulty dealing with the legal system because of a substantial disability.

2.3.2 - Where the matter raises an issue of civil liberties

An example of where a matter may raise an issue of civil liberties is in circumstances where the applicant for aid has made a complaint or an allegation of an abuse of power by a person in a special position of authority (eg. a police officer) and Legal Aid NSW is satisfied that the offence with which the applicant is charged has arisen as a direct result of that alleged abuse of power and that the complaint or allegation is indicative of a systemic abuse of power.

2.3.3 - Where the matter involves the death of a person

This will generally only arise in traffic matters.

2.3.4 - Where the applicant is an Aboriginal woman

Legal Aid NSW will be satisfied there are exceptional circumstances where the applicant for legal aid is an Aboriginal woman.

2.3.5 - Where the applicant for aid is under 18 years of age

This will generally only arise in traffic matters.

2.3.6 -Where the applicant for aid is a victim of domestic violence

Legal Aid NSW will be satisfied there are exceptional circumstances where the applicant for legal aid is a defendant charged with a domestic violence offence and Legal Aid NSW is satisfied that the applicant is a victim of domestic violence.

2.3.7 - Other circumstances

The above list is not intended to be exhaustive: there may be other types of circumstances that Legal Aid NSW may take into consideration in deciding whether there are exceptional circumstances. This may include, for example, where the applicant for aid:

• is a defendant in proceedings under the Education Act 1990 (NSW).

2.4.1 - Late applications in Local Court defended matters

Where an application for legal aid is received within 14 days of the date set down for the hearing of the matter, legal aid is only available in exceptional circumstances.

In deciding whether there are exceptional circumstances in cases where there has been a late application for a Local Court defended matter, Legal Aid NSW will consider the following as being exceptional circumstances:

• if the delay in applying for legal aid was not caused by the applicant, or
• if the applicant for legal aid has genuinely exhausted all other available funds which has caused the delay in applying for aid.

Legal Aid NSW would then only grant aid if the legal practitioner applying on behalf of the applicant provides Legal Aid NSW with all the relevant documentation necessary to make a determination to grant aid.

2.4.2 - Applications received within 30 days before a trial

If an application for legal aid for a criminal trial is received within 30 days before the trial is due to commence the legal practitioner for the legal aid applicant must:

• serve written notice on the Registrar of the relevant court that an application for legal has been made, and
• provide reasons to the Registrar for the delay in applying for legal aid. A copy of the notice must be sent to Legal Aid NSW.

See Rule 45 of the New South Wales Professional Conduct and Practice Rules 2013 (NSW) (Solicitors' Rules).

2.4.3 - Late applications in District Court appeals

Where an application for legal aid is received within 14 days of the date set down for the hearing of the matter, legal aid is only available in exceptional circumstances.

In deciding whether there are exceptional circumstances in cases where there has been a late application for legal aid in a District Court appeal, Legal Aid NSW will consider the following as being exceptional circumstances:

• if the delay was not caused by the applicant, or
• if the applicant for legal aid has genuinely exhausted all other available funds and that has caused the delay in applying for legal aid.

Legal Aid NSW would then only grant aid if the legal practitioner applying on behalf of the applicant provides Legal Aid NSW with all the relevant documentation necessary to make a determination to grant aid.

2.4.4 - Late applications in Local Court committal matters under s 91 of the Criminal Procedure Act 1986 (NSW)

Where an application for legal aid is received within 14 days of the date set down for the hearing of the matter, legal aid is only available in exceptional circumstances.

In deciding whether there are exceptional circumstances in cases where there has been a late application under s 91 of the Criminal Procedure Act 1986 (NSW), Legal Aid NSW will consider the following as being exceptional circumstances:

• if the delay was not caused by the applicant, or
• if the applicant for legal aid has genuinely exhausted all other available funds and that has caused the delay in applying for legal aid.

Legal Aid NSW would then only grant aid if the practitioner applying on behalf of the applicant provides Legal Aid NSW with all the relevant documentation necessary to make a determination to grant aid.

The following guidelines apply to grants of legal aid in committal matters.

2.5.1 - Proceeds of crime matters – Commonwealth only

Where the legal aid applicant is seeking a grant of legal aid to:

• defend a criminal charge, and
• the applicant has property that is covered by a restraining order under the Proceeds of Crime Act 2002 (Cth), or is likely to be covered by such an order,

the costs of providing legal aid will be reimbursed to Legal Aid NSW in accordance with Proceeds of Crime Act 2002 (Cth), s293.

Assessing means test eligibility

When assessing an applicant's eligibility under the Means Test, any of the applicant's assets that are covered by a restraining order or confiscation order under the Proceeds of Crime Act 2002 (Cth) are to be disregarded (see Means Test policy 1.4.5.5 Excluded assets).

Notifying the Grants Division

If an application is received for legal aid where the applicant's assets are restrained under the Proceeds of Crimes Act 2002 (Cth), the legal practitioner should inform the Grants Division of Legal Aid NSW as soon as possible.

Note: If the matter is a civil matter under the Proceeds of Crime Act 2002 (Cth) see Civil guideline 4.10.

2.5.2 - Proceeds of crime matters – NSW only

Where the legal aid applicant is seeking a grant of legal aid to:

• defend a criminal charge, and
• the applicant has property that is restrained under the Confiscation of Proceeds of Crime Act 1989 (NSW) and other legislation related to tainted monies/property,

then Legal Aid NSW requires the applicant request the NSW Crime Commission release restrained funds to pay their legal costs. If no request for release of funds has been made, then the application for legal aid will be refused.

If the request to the NSW Crime Commission for release of funds has been unsuccessful, Legal Aid NSW requires the applicant make an application to the Supreme Court pursuant to s 10B(3)(b) of the Criminal Assets Recovery Act 1990 (NSW) for the release of restrained funds for legal costs. If there has been no application to the Supreme Court, then the application for legal aid will be refused.

The applicant may apply for legal aid if the Supreme Court refuses to release restrained funds for legal costs. When assessing an applicant’s eligibility under the Means Test restrained assets are to be disregarded.

Notifying the Grants Division

If an application is received for legal aid where the applicant's assets are restrained under the Confiscation of Proceeds of Crime Act 1989 (NSW) and other legislation relating to tainted monies/property, the legal practitioner should inform the Grants Division, Legal Aid NSW as soon as possible.

Note: Legal aid is not available for proceedings under the Confiscation of Proceeds of Crime Act 1989 (NSW) and other legislation relating to tainted monies/property (which includes the Criminal Assets Recovery Act 1990 (NSW)) - see Crime policy 2.10 When Legal Aid is not available for criminal matters and Civil policy 4.21 Matters for which legal aid is not available.

When considering whether it is appropriate that the applicant has legal representation at a restorative justice conference such as a Youth Justice Conference, Community Conference or Circle Sentencing conference, Legal Aid NSW will take into account one or more of the following:

• the views of the program convenor concerning a legal support person,
• the views of the client about having a legal support person,
• the views of the legal practitioner assigned to the matter, if there is one,
• whether legal issues that could affect the client are likely to arise during the conference,
• whether an appropriate person is available to attend the conference in support of the offender, and
• any other relevant factors.

The definition of a ‘term of imprisonment' includes:

• a full time gaol term, or
• an intensive correction order.

2.8.1 - Criminal appeals generally

When assessing whether an application involves an “appropriate expenditure of limited public funds” Legal Aid NSW needs to consider whether the costs involved in providing legal aid are warranted by the likely benefit to the applicant or, in some circumstances, the community.

Legal Aid NSW needs to be satisfied that the matter for which legal aid is sought is an appropriate expenditure of public legal aid funds.

2.8.2 - Sentence appeals to the NSW Court of Criminal Appeal

Legal Aid NSW will only consider that it is an appropriate expenditure of limited public funds in a sentence appeal to the NSW Court of Criminal Appeal (not crown appeals) where:

• the applicant was sentenced to a term of imprisonment (including a full-time custodial sentence, a suspended sentence (section 12 bond), an intensive correction order, or a home detention order, and
• the applican's non-parole period will not expire before the appeal can be prepared and heard.

OR

Legal Aid NSW is satisfied there are exceptional circumstances. Legal Aid NSW may be satisfied that there are exceptional circumstances where:

• the applicant is at special disadvantage (includes children), or
• the matter raises an important question of law, or
• the matter is a suitable vehicle for establishing new legal precedent, or
• the matter involves a public interest issue.