4.3.1 Bail applications

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

To be eligible for legal aid after the first appearance the applicant must satisfy:

• The Means Test

NOTE: see Criminal Law Policies 4.11.3 or 4.16.10 for Supreme Court bail applications.

4.3.2 Court attendance notice issued by a police officer or Centrelink

Legal aid is available for criminal proceedings in the Local Court (except for traffic offences - see 4.3.3 below) which are commenced by a court attendance notice issued by a police officer or Centrelink.

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and

either

• the offence carries a term of imprisonment as an available penalty, or
• there are exceptional circumstances.

Where the applicant for legal aid has entered a plea of not guilty

To be eligible for legal aid for a defended hearing the applicant must satisfy:

• The Means Test, and

either

• if convicted, there is a real possibility of a term of imprisonment being imposed for the matter, or
• there are exceptional circumstances.

4.3.3 Driving and traffic offences

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

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and

either

• if convicted, there is a real possibility of a term of imprisonment being imposed for the matter, or
• there are exceptional circumstances.

4.3.4 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.

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and

either

• if convicted, there is a real possibility of a term of imprisonment being imposed for the matter, or
• there are exceptional circumstances.

4.3.5 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).

To be eligible for legal aid the applicant must satisfy:

• The Means Test,
• 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.

4.3.6 Applications to vary or revoke a Community Correction Order or a Conditional Release Order

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 lacks capacity to consent to the procedure, or
• there are exceptional circumstances.

To be eligible for legal aid the applicant must satisfy:

• The Means Test

NOTE: See Criminal Law Policy 4.16.1 for applications involving a child or young person.

4.3.9 Responding to a Mandatory Disease Testing order

Legal aid is available in the Local Court to vulnerable third parties to respond to an application for an order made under Part 4 of the Mandatory Disease Testing Act 2021 (NSW).

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and
• the definition of “vulnerable third party” under the Mandatory Disease Testing Act 2021 (NSW).

NOTE: These applications are administered as criminal law grants.

NOTE: Under the Mandatory Disease Testing Act 2021 (NSW) a “vulnerable third party” means a third party who—

(a)  is at least 14 years of age but under 18 years of age, or

(b)  is suffering from a mental illness or mental condition, or is cognitively impaired, within the meaning of the Mental Health (Forensic Provisions) Act 1990, which significantly affects the vulnerable third party’s capacity to consent to voluntarily provide blood to be tested for blood-borne diseases.

NOTE: see Criminal Law Policy 4.16.13 for applications involving a child or young person.

4.3.10 Revocation of parole for Commonwealth Offences

Legal aid is available in the Local Court for matters where the applicant for legal aid is brought before the court on a warrant under s19AV of the Crimes Act 1914 (Cth) for revocation of parole.

To be eligible for legal aid the applicant must satisfy:

• The Means Test

4.3.11 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 Forum Conferencing pursuant to Part 7 of the Criminal Procedure Regulation 2010 (NSW).

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and
• 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 4.16.5 on Youth Conferencing.

See Criminal Law Policy 4.8 on Circle Sentencing.

4.3.12 When legal aid is not available for Local Court matters

Legal aid is not available for the following Local Court matters:

• defended hearings where the defence is frivolous or has no possible prospects of success
• respondents in victim's compensation matters (restitution orders)
• to prosecute private prosecutions under s.14 of the Criminal Procedure Act 1986

Date last published 05/12/2022