Guidelines
1. Criminal law matters
1.13. Exceptional circumstances
Exceptional circumstances under the Local Court criminal law policy may include (but is not limited to) the following.
1.13.1 where applicant is at special disadvantage
An applicant is at special disadvantage if:
- the applicant is a child or acting on behalf of a child, or
- the applicant is a person who has substantial difficulty in dealing with the legal system by reason of a substantial:
- psychiatric condition
- developmental disability
- intellectual disability, 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.
1.13.2 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.
1.13.3 where the matter involves the death of a person
This will generally only arise in traffic matters.
1.13.4 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.
1.13.5 where the applicant for aid is under 18 years of age
This will generally only arise in traffic matters.
1.13.6 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.
1.13.7 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 Education Act proceedings