These are the guidelines to the criminal law policies and are intended to be read with the criminal law policies. The guidelines provide guidance on how certain policies are to be applied by setting out certain requirements which need to be observed when determining applications and administering grants of legal aid.

The Legal Aid Commission of New South Wales is referred to as Legal Aid NSW in these guidelines.

 

Date Last Published: 01/12/2010

1.2.1 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.

1.2.2 Sentence appeals to the 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 Court of Criminal Appeal (not Crown appeal) 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 suiable vehicle for establishing new legal precedent, or
• the matter involves a public interest issue.
  
  
  Date Last Published: 09/10/2017

1.3.1 Commonwealth criminal law – Expensive Cases Fund

The Commonwealth Criminal Law – Expenses Cases Fund (the Fund) has been established to assist Legal Aid NSW to manage high, one-off costs associated with providing assistance for a particular criminal law matter.

Legal Aid NSW may apply to the Fund in cases where it is satisfied that the cost of running a criminal matter exceeds the cap for criminal indictable matters.

The Commonwealth's guideline for applying to the Fund may be obtained from the Grants Division Legal Aid NSW.

1.3.2 Costs in indictable trials

Legal Aid NSW will not pay more than $50,000, with an additional $25,000 for each co-accused for any one trial assigned to a private legal practitioner.

Allocation of funding between defendants is determined by Legal Aid NSW.

Do the costs cover transcripts in trials?

The grant of aid for a trial does not extend to obtaining court transcripts during the trial.

1.3.3 Transcript costs in appeals

Legal Aid NSW will not pay for the transcript of a trial to determine the merit of an appeal to the NSW Court of Criminal Appeal.

1.3.4 Costs in cross applications in Apprehended Domestic Violence Orders proceedings

When a grant of aid is made to defend a cross-application, a condition of the grant of aid should require the legal aid applicant to seek an order for costs against the cross -applicant, where appropriate.

Date Last Published: 01/12/2010

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

1.4.1 Hearing cap

A cap of 2 days hearing time for a single accused with an additional day of hearing time for each co-accused.

The cap may be exceeded in exceptional circumstances with the approval of:

• the Deputy CEO (Legal), or
• Director Criminal Law, or
• Director Grants, or
• their nominee.

1.4.2 Reading time caps

Where reading time is allowed for the committal, this will be taken into account when setting the first day fee for trial.

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

If additional time for preparation is required the amount Legal Aid NSW will be prepared to pay is at the discretion of the Deputy CEO (Legal), Director Criminal Law, Director Grants or their nominee.

Additional preparation will be paid at the hourly rate.

Legal Aid NSW officers authorised under the Delegation Instrument can decide the reading cap times.

1.4.3 Case conferencing

In all state indictable committal proceedings capable of being committed to the District Court or Supreme Court, it will be a condition of the grant of legal aid that the legal practitioner will be required to participate in a case conference where a plea of guilty has not been entered or negotiated with the Director Public Prosecutions.

Date Last Published: 01/12/2010

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.

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.

 

Date Last Published: 01/12/2010

1.6.1 Proceeds of Crime (Cth)

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) (POC Act), 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 s293 of the POC Act.

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 Act are to be disregarded (see Means Test Policy 7.6.5)

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, Legal Aid NSW as soon as possible.

If the matter is a civil matter under the POC Act refer to the Civil Law Guideline 3.7.

1.6.2 Proceeds of Crime (NSW)

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 Criminal Law Policy 4.20 and Civil Law Policy 6.26.

Date Last Published: 01 May 2023

1.7.1 What is a domestic relationship?

A ‘domestic relationship' is defined under s 5 of the Crimes (Domestic and Personal Violence) Act 2007

For the purposes of the Legal Aid NSW apprehended domestic violence order policy a person is in a ‘domestic relationship' when:

• the person is or has been married to the other person
• the person is or has been in a de facto relationship within the meaning of the Property (Relationships) Act 1984 with the other person
• the person has or has had an intimate relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature
• the person is living or has lived as a long term resident* in the same residential facility as the other person
• the person has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person
• the person is or has been a relative of the other person, or
• the person is an Aboriginal person or a Torres Strait Islander, who is or has been part of the extended family of the other person, according to the Indigenous kinship system of the person's culture, or
• two persons also have a domestic relationship with each other for the purposes of this Policy if they have both had a domestic relationship of a kind set out above with the same person.

*This does not include a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 (NSW) or a detention centre within the meaning of the Children (Detention Centres) Act 1987 (NSW)

1.7.2 Apprehended domestic violence orders

What are exceptional circumstances?

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

Legal Aid NSW may consider there are exceptional circumstances where the applicant for legal aid is 'at special disadvantage'.

Definition of 'at special disadvantage' under the ADVO policy

An applicant for aid 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 psychiatric condition
  • a developmental disability
  • an intellectual impairment, or
  • a physical disability

Note: This is intended to be a guidance on how the exceptional circumstances test may be applied and is not exhaustive.

Definition of 'victim of domestic violence' under the ADVO policy

Legal Aid NSW will be satisfied that an applicant for legal aid is a victim of domestic violence if any of the following criteria are satisfied:

• the application for legal aid is supported by a Domestic Violence Practitioner Scheme solicitor or Women's Domestic Violence Court Advocacy Service co-ordinator, health worker, domestic violence specialist worker, community access worker (funded by the Commonwealth Government), independent advocate for people with disabilities, social worker, tenancy worker (funded by Government), homeless or housing worker (funded by Government) counsellor approved by Victims Services or psychologist, or
• the applicant for legal aid has previously been an applicant in an ADVO matter, or
• the applicant for legal aid is currently living in a refuge or in alternative accommodation due to a domestic violence situation, or
• the applicant for legal aid provides evidence to support their application.

1.7.3 Apprehended personal violence orders

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

Legal Aid NSW may consider there are exceptional circumstance if:

• the applicant for legal aid is a protected person in associated apprehended domestic violence proceedings

or

• Legal Aid NSW is satisfied the applicant for legal aid is 'at special disadvantage'.

Definition of 'at special disadvantage' under the APVO policy

An applicant for aid 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 psychiatric condition
  • a developmental disability
  • an intellectual impairment, or
  • a physical disability.

Note: This is intended to be guidance on how the exceptional circumstances test may be applied and is not exhaustive.

1.7.4 Definitions for apprehended violence orders

The following are the relevant definitions for the purpose of the Legal Aid NSW AVO policy.

Apprehended domestic violence order proceedings and apprehended personal violence order proceedings include variation or revocation proceedings.

A protected person means the person for whose protection an apprehended violence order is sought or made, or the person whom Legal Aid NSW is satisfied is a victim of domestic violence.

A defendant is a person against whom an apprehended violence order is made or sought.

Associated apprehended domestic violence order proceedings are current proceedings involving the same parties including proceedings concluded within the previous 3 months.

A relative is a relative within the meaning of section s6 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).


Date Last Published: 15/16/2021
Back to top

1.8.1 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.

1.8.2 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 (Solicitors' Rules).

1.8.3 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 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.

1.8.4 Late applications in Local Court committal matters under s91 of the Criminal Procedure Act 1986

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 s91 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.

Date Last Published: 01/12/2010
Back to top

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.

Date Last Published: 01/12/2010

1.10.1 Financial assistance direct from Commonwealth Attorney General

Financial assistance is available direct from the Commonwealth Attorney-General in limited categories of proceedings. This assistance is administered by the Legal Aid Branch and is provided under a number of statutory and administrative (non-statutory) schemes.

1.10.2 Statutory Schemes providing financial assistance direct from Attorney-General

There are a number of Statutory Schemes through which the Commonwealth Government provides financial assistance to people requiring help to address matters involving Commonwealth law, or in circumstances that give rise to a special Commonwealth interest and legal aid is not available.

Information about the schemes can be viewed on the Federal Attorney-General's website.

1.10.3 Native Title Funding Schemes available through the Commonwealth Attorney-General

Financial assistance may be provided to a party or a person who intends to become a party to an enquiry, mediation or proceedings relating to native title, including an Indigenous land-use agreement or an agreement about certain rights of access for traditional purposes, or who are in dispute with another person about such rights of access.

For information about the Scheme see the Federal Attorney General website.

1.10.4 If legal aid is available from Legal Aid NSW apply first to Legal Aid NSW

In considering whether to make a grant of aid Legal Aid NSW may take into account whether funding is available from another Commonwealth scheme such as the Commonwealth Public Interest and Test Cases Scheme. Cases seeking special funding for a public interest or test case under a law of the Commonwealth must be referred to the Legal Aid Branch.

Where Legal Aid NSW refuses to grant legal aid and/or a Legal Aid Review Committee dismisses any appeal against such a refusal, the application for legal aid is to be referred by Legal Aid NSW to the Legal Aid Branch for consideration.

For information on public interest and test cases see Guidelines at page 12: Guidelines for Provision of Assistance by the Commonwealth for Legal and Related Expenses under the Commonwealth Public Interest and Test Cases Schemes

1.10.5 Applications to the Legal Aid Branch and criteria for determination of applications

Address applications under these schemes to:

Assistant Secretary

Legal Aid Branch

Financial Assistance Section

Attorney General's Department

National Circuit

BARTON ACT 2600

Telephone: (02) 6250 6770

The criteria for determining applications under these schemes vary considerably. For the guidelines appropriate to each scheme and information regarding costs contact the Legal Aid Branch.

See Attorney-General's website.

1.10.6 Time limits

Applicants who have applied to Legal Aid NSW are to be advised to contact the Legal Aid Branch as soon as possible because time limits may apply.

Date Last Published: 01/12/2010
Back to top

The definition of a ‘term of imprisonment' includes:

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

Date Last Published: 21/09/2018

The Legal Aid NSW Board develops and approves policy in relation to State and Commonwealth criminal matters. Legal Aid NSW entered into a National Partnership Agreement with the Commonwealth Government on in July 2010 for the provision of legal aid for Commonwealth criminal matters.

Legal Aid NSW criminal law policies set out:

• the types of matters for which legal aid is available
• the tests which must be applied before a grant of legal is made to an applicant including:

• the Means test
• the Merit test
• the Availability of Funds Test.

The criminal law guidelines set out other requirements that must be observed when determining and administering grants of legal aid including guidelines in relation to costs and late applications. The Criminal Practice Direction is authority from the Director Criminal Law to certain legal officers to assign matters and order experts for sentence matters.


Date Last Published: 01/12/2010

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

1.14.1 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 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 s. 6 of the Criminal Appeal Act 1912.

1.14.2 Assessing merit when responding to s. 5F appeals under the Criminal Appeal Act 1912 and Crown sentence appeals

When considering whether an applicant for legal aid satisfies the Merit Test to respond to an appeal a under s. 5F of the Criminal Appeal Act 1912 or to respond to a Crown sentence appeal in the 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.

Date last published: 12/02/2019