For legal aid to be granted for representation at trial, including the cross-examination of a protected witness in the Magistrates Court, the following must be satisfied:
- A person has been deemed a protected witness who cannot be cross examined by a defendant.
- The court has made an order pursuant to s21O of the Evidence Act 1977 for Legal Aid Queensland to provide a free grant of legal assistance to the defendant.
- The defendant has been charged with a domestic violence order offence or domestic violence order-related offence.
- The matter has been listed for hearing.
The initial approval of these matters is not subject to Legal Aid Queensland’s guidelines or means and merits tests.
Documentary requirements
Where an order has been made pursuant to s21O of the Evidence Act 1997 for a defendant to be provided free legal assistance for representation at a summary trial in the Magistrates Court, the following documents are required:
- A completed form from the Magistrates / Children’s Court providing the defendants details, and
- A copy of the order madepursuant to s21O of theEvidence Act 1977 or alternatively a copy of the court transcript, a copy of the verdict and judgment record, or a letter from the court confirming such order has been made.
Interpretation
Domestic violence offences and domestic violence order related offences
Under s21L of the Evidence Act 1997, an order can be made by a Magistrate for free legal assistance to be given to a defendant in summary proceedings under the Justices Act 1886 for a domestic violence offence.
Free legal assistance will not be provided in summary proceedings where the offence is not a domestic violence offence or a domestic violence order-related offence.
A domestic violence order-related offence is:
a) an offence for the contravention of the domestic violence order under the Domestic and Family Violence Protection Act 2012, section 177(2); or
b) an offence for an act or omission that also constitutes an offence mentioned in paragraph (a).
A domestic violence offence is:
a) an offence against the Domestic and Family Violence Protection Act 2012, part 7; or
b) an offence against another act committed by a person where the act or omission that constitutes the offence is also:
i) domestic violence or associated domestic violence under the Domestic and Family Violence Protection Act 2012 committed by the person; or
ii) a contravention of the Domestic and Family Violence Protection Act 2012, section 177(2).
Protected witness
A protected witness in a proceeding for a domestic violence offence or domestic violence order related offence includes:
- victims of domestic violence offences,
- a witness under 16 years of age,
- a witness who is a person with an impairment of the mind,
- the aggrieved in the domestic violence order or a relative or associate of the aggrieved in the domestic violence order, and
- is a person who the Court considers would be likely to be disadvantaged as a witness, or to suffer severe emotional trauma, unless treated as a protected witness.
Allocation of a solicitor
Representation at trial, including the cross-examination of a protected witness in the Magistrates Court, will be provided on an in-house basis unless there is a conflict of interest.
Grant(s) of aid
Magistrates court
The grant of aid for representation at trial, including the cross-examination of a protected witness(es) in the Magistrates Court, is XW1.
Extension(s) of aid
Counsel
A grant of aid may be available for a summary trial with counsel if the nature and extent of funding guidelines for counsel are met. The grant of aid for a summary trial for counsel is XW2.
Additional days of trial
Where the summary trial exceeds one day, an extension of aid is available for the additional days of trial (solicitor only), the grant of aid is XW3.
Where counsel has been approved for a summary trial and the trial exceeds one day, an extension of aid is available for counsel for the additional days. The grant of aid is XW4.
Other extensions
Other standard legal aid extensions for travel, accommodation, interpreters, prison visits etc are available subject to standard requirements for these items. See the nature and extent of funding page for criminal law matters and disbursements.
Review of decisions
A decision to refuse legal aid for extensions in this type of matter may be appealed to the external review officer (refer to review of decisions).