For legal aid to be granted for a committal hearing in the magistrates court in respect of charges for which the maximum penalty is 14 years or less and the applicant is not in prison the following tests must be satisfied:
For legal aid to be granted for a committal hearing in the magistrates court (excluding Brisbane and Ipswich) under guideline 4.2 – committals, in respect of charges for which the maximum penalty is 14 years or less, and the applicant is in prison the following test must be satisfied:
If the applicant has:
- an existing grant of aid for other criminal law matters and the applicant is approved aid with the same law firm, the multiple grants of aid policy must be met.
Documentary requirements
Application 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 charge or charges such as a notice to appear, bench charge sheet or Queensland court brief (QP9) material.
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 along with:
- the appropriate committal checklist
- the "request to represent co-accused submission form" and where the request is submitted from either Legal Aid Queensland or ATSILS a copy of the appropriate internal delegate approval (if applicable).
- Proof of income and assets (refer to the means test).
- Where the charges are an election matter, the practitioner must advise our office whether the matter is likely to proceed by way of committal.
The following documents are retained on the practitioner’s file:
Interpretation
If aid is requested for committal proceedings for matters which are likely to be subject to committal proceedings which do not fall into a merit test exempt category, evidence must be provided to show there is a strong likelihood that:
The defendant will be discharged
In certain circumstances, with appropriate cross-examination and/or submissions, it is possible for a Magistrate to dismiss a charge on the basis that there is insufficient evidence upon which a properly instructed jury could convict or in other words, there is no prima facie case established. This guideline may be met in a situation where it would appear that the cross-examination of prosecution witnesses would result in dismissal of the charge.
Additional disclosure may result in the charge being dealt with summarily
This guideline is included to cover the situation where there is a likelihood that the charge will in fact be dealt with in the magistrates court on a plea of guilty if additional legal work is undertaken. If the solicitor in the first instance can deal with the matter by way of summary plea, aid should not be approved for a committal. "Additional disclosure" is not about the firm attempting to obtain additional mitigation material for a plea.
The committal will identify an early plea
When a defendant has not instructed to plead guilty to a charge which must be determined in a higher court, Legal Aid Queensland considers that a committal may identify an early plea if:
- The charges are likely to be amended to a form enabling a plea to be made, or
- The issues in dispute can be sufficiently reduced or clarified enabling a plea to be made.
The committal will significantly reduce the length of a subsequent trial
When a defendant has instructed to take the matter to trial, Legal Aid Queensland considers that a committal may reduce the length of a subsequent trial if:
- The defendant has been charged with numerous offences, and the committal will reduce the issues in dispute, or
- The matter involves a large amount of evidentiary material, and the committal will reduce the issues in dispute, or
- The committal will reduce the number of trial witnesses.
It is the responsibility of the practitioner to advise Legal Aid Queensland how the matter meets the above criteria, outline their strategy and identify the reduction in the duration of trial they expect to achieve.
Disability or disadvantage
Legal Aid Queensland considers that a client has limited ability to give instructions because of a disability or disadvantage when the applicant has at least one of the following:
- An intellectual disability.
- A mental illness or mental impairment.
- A physical disability.
- A sensory disability.
- They are not proficient in English and require an interpreter.
- They have literacy issues and there is significant material to be read.
- The client is currently in prison.
Intellectual disability
An applicant will be considered under the intellectual disability criteria when their disability affects their ability to communicate or their thought processes, to the extent that it precludes self-representation.
The following examples may be considered when determining whether an applicant has an intellectual disability:
- The applicant has written confirmation from a disability service provider confirming that they are currently receiving care and support.
- The applicant has written confirmation from a doctor or service provider confirming that they have an acquired brain disorder, an autistic spectrum disorder, a dementia disorder or an intellectual disability.
Mental illness or mental impairment
An applicant will be considered under the mental illness or mental impairment criteria when their disability affects their ability to communicate or their thought processes, to the extent that it precludes self-representation.
The following examples may be considered when determining whether an applicant has a mental illness or mental impairment:
- The applicant is currently receiving treatment or has a long standing history of treatment for a mental illness or mental impairment.
- The applicant has written confirmation from a doctor or service provider confirming that they have a mental illness or mental impairment.
- The applicant is subject to an involuntary treatment order.
Physical disability
An applicant will be considered under the physical disability criteria when their disability affects their ability to communicate, to the extent that it precludes self-representation.
The following examples may be considered when determining whether an applicant has a physical disability:
- The applicant is currently receiving care and support from a disability service provider.
- The applicant has written confirmation from a doctor or service provider confirming that they have a physical disability.
Sensory disability
An applicant will be considered under the sensory disability criteria when their disability affects their ability to communicate, even with an interpreter, to the extent that it precludes self-representation.
The following examples may be considered when determining whether an applicant has a sensory disability:
- The applicant is currently receiving care and support from a disability service provider.
- The applicant has written confirmation from a doctor or service provider confirming that they have a sensory disability.
Applicant is from a non-English speaking background and requires an interpreter
An applicant will be considered under this policy when they are unable to communicate or understand the court process, to the extent that it precludes self-representation.
The following examples which may be considered when determining whether an applicant requires the assistance of an interpreter to effectively communicate in English:
- The applicant is from a non-English speaking background and requires the assistance of an interpreter to effectively communicate in English.
Applicant has significant literacy issues and there is significant material to be read
An applicant will be considered under the literacy criteria when there is significant material to be read that has a direct impact on the proceedings and the applicant’s literacy issues are such that it precludes self-representation.
When considering whether an applicant has literacy issues that are significant enough to preclude self-representation Legal Aid Queensland will consider the type of matter and the material involved. For example, it is unlikely that Legal Aid Queensland will fund applicants under this criteria for a plea of guilty in the magistrates court as it is considered that the applicant ability to enter a plea would not be significantly affected as there are duty lawyer services available to assist these clients.
Grant(s) of aid
The grant of aid for a hand up or registry committal hearing is MR1.
Extension(s) of aid
Counsel engagement in the early stages of proceedings
If the charge(s) involve serious criminal law matters which require counsel to work with the solicitor in the early stage of proceedings, an extension of aid may be available for counsel provided the merits test and extent of funding guidelines for counsel are met. The grant of aid for counsel to be engaged in the early stage of proceedings is MR1A.
Formal summary application
An extension of aid is available for solicitors and counsel to make a formal application to the magistrate for:
- cross-examination of a witness at committal
- disclosure directions orders, and/or
- indictment of a indictable matter being heard summarily.
The grant of aid for a solicitor to make a formal summary application is MR2.
A grant of aid for solicitor and counsel to make a formal application to the magistrate is subject to the merits test and extent of funding guidelines for counsel. The grant of aid is MR4.
Day one of committal hearing with cross-examination
For legal aid to be granted for cross examination of witnesses at a committal hearing, the prosecution must have agreed to witnesses being cross examined or leave to cross examine witnesses has been granted by the court.
The grant of aid for a solicitor to appear at a committal hearing to cross examine witnesses is MR3.
A grant of aid for solicitor and counsel to appear at a committal hearing to cross examine witnesses is subject to the merits test and extent of funding guidelines for counsel. The grant of aid is MR5.
Additional days of committal hearing with cross-examination
Where additional days of committal are required, or negotiations have resulted in the matter proceeding as a summary plea the following grants of aid are applicable:
- The grant of aid for solicitor to appear at additional days of committal hearing with cross-examination or negotiated summary plea is MR6.
- The grant of aid for counsel to appear at additional days of committal hearing with cross-examination or negotiated summary plea is MR7.
ATSILS / Replacement barrister to appear at day one or additional days of a committal hearing with cross examination:
- The grant of aid for counsel (only) to appear at day one of a committal hearing with cross examination is MR8.
- The grant of aid for counsel (only) to appear at additional days of committal hearing is MR9.
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).