For legal aid to be granted for an application for bail in the Supreme Court the following tests must be satisfied:
Documentary requirements
Application or extension request received from client
Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:
- A completed and signed Legal Aid Queensland application form.
- Proof of income and assets (refer to the means test).
- A copy of the applicants criminal history and/or traffic record.
If aid has already been granted and the applicant is seeking an extension of aid, the applicant should contact their solicitor to lodge the request for further funding. Alternatively, the applicant can forward a letter requesting the extension of aid.
Application or extension request received from preferred supplier or in-house practitioner
Preferred suppliers seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system along with:
- the appropriate information request or checklist
- proof of income and assets (refer to the means test).
The practitioner must also ensure that the following documents are retained on file:
Interpretation
There is a strong likelihood of bail being granted
Legal Aid Queensland regard that there is a strong likelihood of bail being granted when an experienced practitioner would consider it likely that a judge could grant bail.
The practitioner must take all the evidence and circumstances of the case into account and the chance of bail being granted must be real and not fanciful. This requires much more than an arguable case.
Legal Aid Queensland will consider the following factors which may have a bearing on an applicants likelihood of bail being granted:
- age of the applicant
- seriousness of the offence
- previous breaches of bail (including failures to appear)
- previous breaches of probation (including prison escapes)
- ties with Queensland
- show cause (reverse onus) (section 16)
- availability of accommodation
- availability and amount of surety
- previous criminal history
- opposition from crown
- next date for court
- strength of the prosecution case
- pandemic response
CoVID 19 Pandemic response considerations:
1. Delay in hearing date
The current response will have a very significant impact on delay in the listing (or relisting) of a hearing and as time goes on the backlog will grow. In these circumstances there is a real risk that some people in custody, who already had a trial listed, will possibly be waiting beyond six months for their trial.
A further consideration here is that even if they were ultimately convicted, they may have served presentence custody well beyond what they would ordinarily have been given on sentence.
2. Vulnerability of prisoners
There are a significant number of prisoners held in correctional facilities across Queensland. Some facilities are reported as already at capacity.
There are concerns that an outbreak in a correctional facility may create a significant health crisis. There are no particular age restrictions associated with current community restrictions and the age of inmates is not necessarily an indicator of lower risk.
The vulnerability of prisoners is of a very high order. Some prisoners will automatically fall into higher risk categories for example due to Aboriginal and Torres Strait islander heritage or chronic illness.
3. Current prison conditions
Current prison conditions are significantly more arduous than before. It is reported that there are no contact visits, severe restrictions on prisoner movement which is akin to being placed in solitary confinement.
The merit review for legal aid funding of bail applications should now incorporate the above considerations.
Whether someone has done enough time will be always be the subject of debate and the lawyer should provide advice that indicates they have turned their mind to the relevant aspects.
For example:
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Bail is still likely to be a very poor prospect for murder or where the alleged offending is so serious that a long prison sentence is inevitable if convicted.
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Exceptions may be where the Crown case is considered weak or if the accused is elderly or has health complications that makes them particularly vulnerable in the current circumstances.
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In all other circumstances a detailed rationale will be required.
If relying on the first consideration above the solicitor should provide information detailing why there is a risk of the prisoner serving more time than they might expect on sentence.
Considerations 2 and 3 above are accepted by the courts at the moment.
Court responses
As this is an evolving situation, court responses to these issues are being monitored.
- The Courts in Queensland and interstate are recognising these 3 factors, which combined are significant.
- The Courts are acknowledging there is such a high level of uncertainty about when things might return to normal.
- Supreme Court of Queensland reasons for decision of Davis J
- Some relevant interstate decisions are as follows:
- Rakielbakhour v DPP [2020] NSWCC 31/3/2020 Hamill J
- R v Broes [2020] VSC 128
Charges which are deemed as non-specified criminal law proceedings
If an applicant has been refused aid or has not applied for aid for representation in the magistrates court but is wishing to apply for Supreme Court bail, aid may be granted without the applicant being funded for magistrates court proceedings if the above criteria are met.
Grant(s) of aid
Specified criminal law matters
The grant of aid for a bail application in the Supreme Court for a specified criminal law matter is CU.
Non-specified criminal law matters
The grant of aid for a bail application in the Supreme Court for a non-specified criminal law matter is C8.
ATSILS
A grant of aid for ATSILS for a Supreme Court bail application is only available where the nature and extent of funding guidelines for counsel to make a bail application in the Supreme Court is met. If aid is approved, the grant of aid is ACV.
Extension(s) of aid
Counsel
Aid may be available for counsel where the nature and extent of funding guidelines for counsel to make a bail application in the Supreme Court is met.
If aid is approved for counsel to represent a client at a Supreme Court bail application the grant of aid is CV.
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 decisions).