For legal aid to be granted for a subsequent appeal, the following tests must be satisfied:
Documentary requirements
Application received from client
Applicants seeking a grant of legal assisance should forward the following documents for assessment:
- a completed and signed Legal Aid Queensland application form
- proof of income and assets (refer to the means test)
- details of the conviction that the applicant is wishing to subsequently appeal
- outcome of the appeal or earlier subsequent appeal
- a copy of the notice of appeal, if applicable.
Application received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system with:
- the appropriate information request or checklist
- details of the conviction that the applicant is wishing to appeal
- whether the notice of appeal has been filed
- proof of income and assets (refer to the means test)
The practitioner must also ensure that the following documents are retained on file:
Interpretation
The right of subsequent appeal
To apply for leave for a subsequent appeal, there must be grounds that there is fresh and compelling or new and compelling evidence that there has been a miscarriage of justice, and the person must have already appealed against their conviction and the Court of Appeal:
- refused to grant leave to appeal, or
- dismissed the appeal in whole or in part, or
- determined the appeal and dealt with the person under s668F.
Further, a person may make a further subsequent appeal where leave has been refused on an earlier application, or the earlier subsequent appeal has been dismissed in whole or in part.
When considering fresh and compelling or new and compelling evidence, reference will be made to s671AB of the Criminal Code Act 1899.
Prospects of success
When an application is received for a subsequent appeal to the Court of Appeal, the application will be referred to an in-house criminal lawyer to investigate the client’s prospects of success unless there is a conflict of interest.
When the in-house criminal lawyer has completed investigations, the in-house criminal lawyer is required to provide advice to the assessing officer in relation to the client’s prospects of success.
If a conflict of interest exists, the matter will be referred to a preferred supplier on the life panel to investigate prospects.
Allocation of a solicitor
Representation for a subsequent appeal will be provided on an in-house basis unless there is a conflict of interest.
Grant(s) of aid
The grant of aid to investigate a client's prospects of a subsequent appeal to the Court of Appeal is COA1.
Extension(s) of aid
If it is determined that the client has prospects of success of a subsequent appeal, the appropriate grants of aid are:
- Day one of subsequent appeal is COA2.
- Additional days of subsequent appeal is COA3.
Review of decisions
A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decision).