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Policies

4. Criminal Law Matters – when legal aid is available

4.3. Local Court criminal law matters

Legal aid is available for criminal proceedings in the Local Court in the following circumstances.

4.3.1 Court attendance notice issued by a police officer or Centrelink

Legal aid is available for criminal proceedings in the Local Court (except traffic offences) which are commenced by a court attendance notice issued by a police officer or Centrelink.

For legal aid to be granted in these matters the following tests must be satisfied:

either

See Criminal Law Policy 4.3.5 on defended hearings.

4.3.2 Court attendance notice issued by a person other than a police officer or Centrelink

Legal aid is available for criminal proceedings in the Local Court which are commenced by a court attendance notice issued by a person other than a police officer or Centrelink.

For legal aid to be granted in these matters the following tests must be satisfied:

either

The Unpaid Contributions Test does not apply to duty matters.

See Criminal Law Policy 4.3.5 on defended hearings.

4.3.3 Bail applications

Legal aid is available to a person in custody for a bail application in the Local Court.

For legal aid to be granted in these matters the following tests must be satisfied:

The Unpaid Contributions Test does not apply to duty matters.

Exception for first appearance bail applications

If it is a first appearance bail application, then there is no means test or unpaid contributions test applied in these types of matters.

If appropriate see policy for Supreme Court Bail applications.

4.3.4 Driving and traffic offences

Legal aid is available in the Local Court for driving and traffic offences in very limited circumstances.

For legal aid to be granted in driving and traffic offences the following tests must be satisfied:

either

The unpaid contributions Test does not apply to duty matters.

Examples of exceptional circumstances

There may be exceptional circumstances if the matter involves the death of a person even if there is no real possibility of a term of imprisonment.

There may be exceptional circumstances where the applicant for legal aid is under 18 years of age.

See  Criminal Law Policy 4.3.5 on defended hearings.

4.3.5 Defended hearings in the Local Court


Legal aid is available for defended hearings in the Local Court in limited circumstances.

For legal aid to be granted in defended hearings the following tests must be satisfied:

  • it is a type of matter for which legal aid is available under the Local Court criminal law policy, and

either

4.3.6 Applications for annulments under Part 2 of the Crimes (Appeal and Review) Act

Legal aid is available in the Local Court for applications for an annulment of conviction or sentence under Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW).

For legal aid to be granted in these matters the following tests must be satisfied:

  • there are reasonable prospects of success, and
  • it is a type of matter for which legal aid is available under the Legal Aid NSW criminal law policies.

4.3.7 Applications to remove driver licence disqualifications

Legal aid is available in the Local Court for applications to remove licence disqualifications under Division 3A of Part 7.4 of the Road Transport Act 2013.

For legal aid to be granted in applications to remove driver licence disqualifications the following tests must be satisfied:

  • The Means Test
  • the matter meets the Availability of Funds Test
  • the applicant has complied with the relevant offence free period defined in section 221A of the Road Transport Act 2013.
  • the applicant is not rendered ineligible to apply by virtue of having been convicted of any of the offences listed in section 221D of the Road Transport Act 2013, and
  • the applicant has not had an application to remove a driver licence disqualifications refused within the last 12 months.
  • NOTE: This service will be provided on a duty basis.

    Grants of aid will only be made where Legal Aid NSW considers that disbursements are required.

4.3.8 Contesting an application or summons made under the Crimes (Forensic Procedures) Act

Legal aid is available in the Local Court for matters where the applicant for legal aid is contesting a matter commenced by way of an application or summons made under the Crimes (Forensic Procedure) Act 2000 (NSW) when Legal Aid NSW is satisfied that:

  • there are not reasonable grounds to believe:
    • the person is a suspect, and/or
    • the person committed the offence for which the sample is required, and/or
    • the forensic procedure would provide sufficient evidence to confirm or to disprove the person committed the relevant offence, or
  • it is not justified in all the circumstances to carry out the forensic procedure, or
  • the legal aid applicant is a child or otherwise lacks capacity to consent to the procedure, or
  • there are exceptional circumstances.

For legal aid to be granted in these matters the following tests must be satisfied:

4.3.9 Restorative Justice Program – Forum Sentencing

Legal aid may be available to a person who is participating in a restorative justice program where the court makes an order in relation to:

  • Legal Aid NSW is satisfied that it is appropriate in the circumstances that the applicant has legal representation.

Criminal Law Guideline 1.9 sets out the criteria for determining whether it is appropriate that the applicant has legal representation.

See Criminal Law Policy 4.16.2 on Youth Conferencing.

See Criminal Law Policy 4.8 on Circle Sentencing.

4.3.10 When legal aid is not available for Local Court matters

Legal aid is not available for Local Court defended hearings where the defence:

  • is frivolous, or
  • has no possible prospects of success.

Legal aid is not available to respondents in victim's compensation matters or to a person to commence proceedings in the Local Court except for apprehended domestic violence order proceedings and applications to remove driver licence disqualifications.

Date last published 25/10/2017