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4. Criminal Law Matters – when legal aid is available

4.3. Local Court criminal law matters

What is a Duty Service?

Legal Aid NSW provides a Duty Service for criminal law matters at Local Courts across NSW. This means that lawyers represent clients on a duty basis. To qualify for a duty service, a person must satisfy the Means Test and have a type of matter for which legal aid is available under the Local Court policies.

Matters that the Duty Service is available for include:

  • Bail applications
  • Sentencing
  • Section 32 applications.

A person will require a grant of legal aid for representation, where:

  • A plea of not guilty has been entered and the matter is proceeding to a defended hearing, or
  • Expenditure is required to pay a third party, for example, a medical report.

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

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 representation the applicant must satisfy the following tests:

to be eligible for bail applications after the first appearance:

See Criminal Law Policy 4.11.3 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 representation the applicant must satisfy the following tests:

either

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

To be eligible for representation for a defended hearing the applicant must satisfy the following tests:

either

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 representation the applicant must satisfy the following tests:

either

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 representation the applicant must satisfy the following tests:

either

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).

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.

4.3.6 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.

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

Legal aid is available in the Local Court in relation to  applications to vary or revoke a condition made under a Community Correction Order or a Conditional Release Order made under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Where the application is made by the applicant for legal aid

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

Where the application is made by Community Corrections or Juvenile Justice

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

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 or where the matter is a defended hearing in the Local Court and the applicant satisfies Criminal Law Policy 4.3.2 above.

NOTE: The Means Test is not applied to applicants who are children.

4.3.8 Breach of a Community Correction Order or a Conditional Release Order

Legal aid is available in the Local Court in relation to a breach of a Community Correction Order or a Conditional Release Order made under the Crimes (Sentencing Procedure) Act 1999 (NSW).

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

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 or where the matter is a defended hearing in the Local Court and the applicant satisfies Criminal Law Policy 4.3.2 above.

NOTE: The Means Test is not applied to applicants who are children.

4.3.9 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:

4.3.10 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.

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

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). For legal aid to be available the applicant for legal aid must satisfies the following tests:

  • 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.

4.3.12 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 sucess
  • respondents in victim's compensation matters (restitution orders)
  • to prosecute private prosecutions under s.14 of the Criminal Procedure Act 1986

Date last published 20/05/2019