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Policies

12. Representation: Allocating Legal Work

12.3. Criminal law matters

All criminal law matters, except children's criminal matters and apprehended domestic violence matters, will be conducted:

  • by in-house legal practitioners and,
  • where appropriate, Public Defenders will be briefed,
  • unless there are exceptional circumstances.

Exceptional circumstances

  • Legal Aid NSW will be satisfied there are exceptional circumstances if there is a conflict of interest, or
  • Legal Aid NSW will be satisfied that there are exceptional circumstances where an application for legal aid is received by an applicant who is represented by the Homeless Persons Legal Service Advocate and the application for legal aid is for, either:
    • a Local Court defended criminal matter; or
    • an application under ss32 or 33 of the Mental Health (Criminal Procedure) Act.
  • If a private legal practitioner has represented an applicant for legal aid in committal proceedings, a request by that practitioner for assignment of the trial does not ordinarily constitute “exceptional circumstances”. However, exceptional circumstances may exist if there is only a short period of time between the date of committal and trial, and unreasonable delay would result if the matter was not assigned to the legal practitioner who conducted the committal.

Note

See Representation Guideline 7.3 for guidance on when a matter should be assigned to the Homeless Persons Legal Service Advocate under this policy.

The Director, Criminal Law has authorised certain Commission staff to assign criminal matters to private legal practitioner.

See Criminal Law Division Practice Directions.

Note

Legal aid applicants may nominate a legal practitioner on their Legal Aid application form. However, in the grant of legal aid, the matter may not be assigned to the nominated legal practitioner.

No right of appeal

There is no right of appeal to a Legal Aid Review Committee (LARC) against a decision to provide aid on the condition that a matter will be conducted by an in-house legal practitioner or by a specified private legal practitioner nominated by Legal Aid NSW.

See ss34(4A) and 56(1AA) of the Act

12.3.1 Domestic violence matters

If an applicant for legal aid is defined as a ‘protected person' by Legal Aid NSW and is in an apprehended domestic violence order matter under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), they will be represented by:

  • a rostered domestic violence duty solicitor if available, or
  • if not available a private legal practitioner nominated by the legal aid applicant.

No right of appeal

There is no right of appeal to a Legal Aid Review Committee (LARC) against a decision to provide aid on the condition that a matter will be conducted by an in-house legal practitioner or by a specified private legal practitioner nominated by Legal Aid NSW.

See ss.34(4A) and 56(1AA) of the Act

12.3.2 Prisoners matters

Representation of prisoners in prisoners' matters will be by the Commission's Prisoners' Legal Service and will only be allocated to private legal practitioners if:

  • an in-house legal practitioner is unable to conduct the matter, or
  • there are exceptional circumstances.

Note

Legal aid applicants may nominate a legal practitioner on their Legal Aid application form. However, in the grant of legal aid, the matter may not be assigned to the nominated legal practitioner.

No right of appeal

There is no right of appeal to a Legal Aid Review Committee (LARC) against a decision to provide aid on the condition that a matter will be conducted by an in-house legal practitioner or by a specified private legal practitioner nominated by Legal Aid NSW.

See ss.34(4A) and 56(1AA) of the Act

12.3.3 Children's criminal matters

Legal aid may be granted to a child applicant in criminal law matters on the condition that the applicant is to be represented by either

Note

Legal aid applicants may nominate a legal practitioner on their Legal Aid application form. However, in the grant of legal aid, the matter may not be assigned to nominated legal practitioner.

No right of appeal

There is no right of appeal to a Legal Aid Review Committee (LARC) against a decision to provide aid on the condition that a matter will be conducted by an in-house legal practitioner or by a specified private legal practitioner nominated by Legal Aid NSW.

See ss.34(4A) and 56(1AA) of the Act

12.3.4 Reassignment of criminal matters

Section 12 of the Act allows the Legal Aid Commission of New South Wales (Legal Aid NSW) to develop policies in relation to the allocation of legal work between in-house legal practitioners, including public defenders and external private legal practitioners.

Legal Aid NSW will not authorise the reassignment of a grant of legal aid in criminal matters from:

  • a private legal practitioner to another private legal practitioner, or
  • an in-house practitioner to a private practitioner

if, in reassigning the matter Legal Aid NSW will incur additional costs, unless there are exceptional circumstances.

What are exceptional circumstances?

Legal Aid NSW will be satisfied that there are exceptional circumstances, only if:

  • there is a conflict of interest, or
  • there is an irretrievable breakdown in the relationship between the client and the legal practitioner, but does not include cases where the client has withdrawn instructions or otherwise makes it impossible for the legal practitioner to continue with representation, or
  • where the Director Grants or Director Criminal Practice determines the reason for changing legal practitioner is in all the circumstances an appropriate expenditure of limited legal aid resources.

See Representation Guideline 7.2 for guidance on applying the reassignment policy

Note

If a legally aided person withdraws instructions from a practitioner, or otherwise makes it impossible for the practitioner to continue with the representation, Legal Aid NSW will determine whether it breaches the condition of the grant of aid and if satisfied that it does, may terminate the grant of legal aid.


Date Last Published: 20/12/2016