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Local Court defended hearing policy changes

On 4 November 2013, Legal Aid NSW will introduce an important policy change affecting availability of legal aid in Local Court defended hearings.

The policy change will mean that aid will only be available for a defended hearing in the Local Court if there is a real possibility that a term of imprisonment will follow conviction, or if there are exceptional circumstances.

These FAQs will assist lawyers on the General Criminal Law Panel with implementing the new policy.

  1. What is the new defended hearing policy?

    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:

    • the applicant meets the Means Test
    • the matter meets the Availability of Funds Test, and
    • it is a type of matter for which legal aid is available under the Local Court criminal law policy, and

    Legal Aid NSW is satisfied that either:

    • if convicted, there is a real possibility of a term of imprisonment being imposed for the matter, or
    • there are exceptional circumstances.
  2. When does the new policy commence?

    The new policy commences on 4 November 2013.

  3. Does the policy apply to applications that are received before the commencement date?

    No, the policy does not apply to applications for legal aid that are received prior to the commencement date of the policy. These applications will be subject to the policy in operation at the date of the receipt of the initial application.

  4. What is a "term of imprisonment" for the purposes of this policy?

    The definition of a 'term of imprisonment' includes:

    • a full-time gaol term
    • a suspended sentence (section 12 good behaviour bond)
    • an intensive correction order, or
    • a home detention order.
  5. Who should assess whether there is a real possibility of a term of imprisonment being imposed?

    Where an application is lodged by a panel lawyer, the panel lawyer will certify in the Grants Online application whether there is a real possibility of a term of imprisonment being imposed.

  6. What are exceptional circumstances?

    Exceptional circumstances under the Local Court criminal law policy may include (but are not limited to) where:

    1. an applicant is at special disadvantage
    2. the matter raises an issue of civil liberties
    3. the matter involves the death of a person
    4. the applicant for aid is under 18 years of age.

    Note that this guide as to what may constitute exceptional circumstances now applies to all policies relating to eligibility for aid in Local Court criminal matters.

  7. When is an applicant at special disadvantage?

    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 substantial:
      • psychiatric condition
      • developmental disability
      • intellectual disability, or
      • physical disability.

    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.

  8. What does raising an issue of civil liberties mean?

    A matter may raise an issue of civil liberties 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.

  9. Who should assess whether there are exceptional circumstances?

    Where an application is lodged by a panel practitioner, the panel practitioner will certify in the Grants Online application whether there are exceptional circumstances, or should indicate that they are not sure whether the matter falls within the exceptional category. Where the practitioner is not sure, a grants officer will consider the matters raised in the application prior to making a determination.

  10. What if I inherit a file where I disagree with another lawyer's assessment (either inhouse or private) of whether there is a real possibility of a term of imprisonment or exceptional circumstances?

    Once a grant of aid has been made you must continue to act in a matter regardless of whether you agree with the initial decision to grant aid, unless there has been a change in client circumstances which affects eligibility for aid. Where a change of circumstances may lead to a termination of aid, private lawyers should contact the Legal Aid NSW Grants Division. If aid has been refused and you believe a term of imprisonment is a real possibility or there are exceptional circumstances, it may be appropriate for the applicant to lodge a Review in Grants Online, which will allow the matter to be administratively re-determined by a Grants officer or considered by the Legal Aid Review Committee.

  11. What is a defended hearing?

    A defended hearing is a hearing where a plea of not guilty has been entered. It does not include circumstances where a plea of guilty has been entered but a hearing on the facts (disputed facts hearing) is required. It does not include a hearing under section 32.

  12. Where it appears that an applicant will not be eligible for aid because of the new defended hearing policy, should I still lodge an application in Grants Online?

    Yes, an application for aid in a hearing matter should always be formally determined through Grants Online. This provides the applicant with an opportunity to appeal a determination, alerts the Grants Division to the fact that a previous application has been refused should a subsequent application be received from another source, and allows data to be collected regarding the number of applications refused on this basis.

  13. If an applicant is pleading not guilty, when should I appear and not appear at court?

    A determination about an applicant's eligibility for legal aid should be made at the earliest possible opportunity. Ordinarily a decision about whether there is a real possibility of a term of imprisonment can be made after a lawyer has had the opportunity to consider the facts and record in a matter. Where the decision can be made prior to the first appearance in a matter the lawyer should advise the applicant that it is unlikely they will be eligible for aid and should not appear in the matter. Where the decision cannot be made prior to a first appearance, the lawyer should withdraw before the matter is set down for hearing and should write to the court to confirm that the defendant is no longer legally aided.

    Where the application for aid is based on exceptional circumstances, or where the possibility of exceptional circumstances becomes apparent, the lawyer should explore these issues and lodge an application as quickly as possible.

  14. Should I appear in circumstances where a defendant has pleaded not guilty on all charges, has been refused aid because there is no real possibility of a term of imprisonment, has been found guilty, and now seeks aid on a duty basis at sentence?
    Once aid has been refused for a matter, it is not usually appropriate for a grant to be made for sentencing but this depends on the circumstances of each matter. Where you do appear, you should generally not make submissions on the issues that were in dispute at the hearing unless you are confident about any findings of fact that were made by the magistrate.
  15. Should I appear for an applicant who is eligible for aid on some matters because they are pleading guilty (and therefore eligible on a duty basis), and is ineligible on others because they are pleading not guilty and there is no real possibility of gaol?

    There are a number of situations where this can arise:

    (1) Multiple but related charges on the one Facts Sheet

    (2) Multiple and unrelated charges on separate Facts Sheets

    It is sometimes the case that there will be instructions to plead guilty to some charges and not guilty to others. In either of the situations above, the new policy applies so that legal aid would be refused for a defended hearing on a charge where there is no real possibility of a term of imprisonment being imposed. However, legal aid is still available on a duty basis for the matters where a plea of guilty is being entered.

    This may cause logistical problems in some cases. You may, subject to instructions, seek to adjourn the sentence matters to a date after the defended hearing. You may however have to complete your submissions on the plea matters at the completion of the defended hearing. There will be some restriction on the submissions that can be made if there has been a finding of guilt after a defended hearing.

     Remember that if the overall penalty for the totality of the charges looks like being a term of imprisonment, this may affect your assessment of whether imprisonment is a real possibility on the defended matter(s).

  16. What if aid is granted for a s32 application which is unsuccessful, and the client then wishes to defend the matter?
    A Section 32 hearing is not a defended hearing and is therefore not subject to the new policy. Where it has been determined that aid should be granted for the purpose of running a s32 application, it is likely that the client will fall into the "special disadvantage" category, and therefore it would be appropriate for the grant of aid to continue for any defended hearing that follows an unsuccessful s32 application.
  17. What if a client instructs me to enter pleas of guilty because they do not want to be unrepresented?

    In Meissner v The Queen (1995) it was held that a person may plead guilty upon grounds which extend beyond that person's belief in their guilt. A person may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and so long as the plea is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.

  18. Where a defendant is unrepresented at a hearing and is found guilty and sentenced to fulltime imprisonment, should I appear on appeals bail?
    Yes, if the defendant requests this. This is a duty service. You should also obtain an application for legal aid for the appeal if the defendant wishes to apply.
  19. Where legal aid has been refused in Local Court proceedings because of an assessment that a term of imprisonment is not a real possibility and a term of imprisonment is subsequently imposed, is an applicant eligible for aid for a severity appeal?

    Yes, if the applicant meets all the other tests for eligibility. The fact that aid was not granted in the Local Court because of an incorrect assessment regarding the real possibility of a term of imprisonment being imposed does not preclude aid being granted for a District Court appeal in these changed circumstances.

    For legal aid to be granted for appeals to the District Court the following tests must be satisfied:

  20. Where legal aid has been refused in a Local Court defended hearing and an applicant is convicted, is the applicant eligible for aid for a conviction appeal?

    The application for aid would be subject to the policy outlined above relating to District Court appeals.

    Therefore, if a grant of aid has been refused for a defended hearing in the Local Court because there is no real possibility of a term of imprisonment being imposed and there are no exceptional circumstances, aid would not be available for a conviction appeal unless a term of imprisonment had in fact been imposed and the other tests are met.

  21. If an applicant is in custody bail refused or serving a sentence for unrelated matters but is not likely to receive a term of imprisonment for the current matter, would the applicant be eligible for aid in a defended hearing?
    No. The matter does not fall within the defended hearing policy unless there are other exceptional circumstances.
  22. If an applicant is serving a custodial sentence and there is a real possibility of a term of imprisonment being imposed if convicted of an additional offence, would they be eligible for legal aid?
    Yes, the applicant would be eligible for aid regardless of whether the imposition of an additional term of imprisonment would have any effect upon the release date of the applicant (i.e. Aid should be granted regardless of whether the Local Court has any power to accumulate a further sentence of imprisonment).
  23. Is an applicant eligible for aid if they are subject to a s12 bond or parole and, if convicted of the current offence, there is a real possibility that a sentence of imprisonment will be imposed for the breach of the bond or parole will be revoked?
    An assessment of an applicant's criminal record, including whether they are currently subject to a section 12 bond or parole, is a valid consideration in determining whether there is a real possibility of a term of imprisonment being imposed for the offence to which the application for aid relates.
  24. Does the new policy apply to matters dealt with in the Children's Court?
    No, the new defended hearing policy does not apply to matters dealt with in the Children's Court.
  25. Where you are on the record in a matter because you have appeared in mentions but aid is subsequently refused under the defended hearing policy, what should you say if you are asked by the Magistrate about why you no longer appear?
    You would respond to the court on the basis of your instructions and your general obligations to act in the best interests of your former client and not to mislead the court.
  26. Is there any change to policy relating to children appearing in the Local Court on traffic matters?
    No, the new policy does not alter the existing policy relating to these matters.
  27. If aid has been refused for a defended hearing but the defendant subsequently pleads guilty, can you appear?

    Yes, this is a change of circumstance that can allow the initial determination to be reconsidered. Unless expenditure is required, aid can be granted on a duty basis for the sentence matter. A new duty application should be completed. If expenditure (and therefore a grant of aid) is required, a review setting out the change of circumstance should be submitted in Grants Online.

  28. Who do I contact if I have any questions?
    Contact Aideen McGarrigle in Legal Policy on 9219 5701.