For legal aid to be granted for a re-opening of a sentence in the magistrates court pursuant to s 188 of the Penalties and Sentences Act 1992 the following tests must be satisfied:
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)
- for applicants requesting the sentence to be reopened, details of the reasons for the reopening of sentence
- for respondents to a reopening of a sentence made by the court or Director of Public Prosecutions, copies of any documentation received in relation to the reopening of sentence.
Application 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 and ensure the following documents are retained on file:
Preferred suppliers will also need to provide our office with:
- Details of the reasons for the reopening of sentence, and
- Whether the client is the applicant or respondent to an application to reopen a sentence.
Interpretation
Prospects of success
For applicants requesting the sentence to be re-opened aid is granted to an in-house criminal solicitor of Legal Aid Queensland unless there is a conflict of interest to investigate the clients prospects of success in making an application to re-open a sentence.
When the in-house criminal solicitor has completed investigations, the in-house solicitor is required to provide advice to the relevant grants team in relation to the clients prospects of success in having their sentence re-opened.
If the application to re-open the sentence is made by the Director of Public Prosecutions or the court has re-opened the matter, a determination on the clients prospects of success is not required.
Allocation of a solicitor
The grant of aid to investigate a clients prospects of success in making an application to re-open a sentence will be provided on an in-house basis unless there is a conflict of interest.
If it is determined that there are prospects of success in making an application to re-open the sentence the matter will be referred to the practitioner who appeared at the original sentence unless there are reasons that prevent this.
Grant(s) of aid
Applicants
The grant of aid for an in-house criminal lawyer to investigate a clients prospects of success in reopening a sentence is CR.
Respondents
The grant of aid for a client to be represented in relation to a re-opening of a sentence pursuant to section 188 of the Penalties and Sentences Act in the Magistrates Court is MG8.
Extension(s) of aid
Applicants
If it is determined that the client has prospects of success in re-opening a sentence and the client meets the merit test, an extension of aid is available for the applicant to be represented in the magistrates court in relation to a re-opening of a sentence pursuant to section 188 of the Penalties and Sentences Act.
The grants of aid for a client to be represented in the magistrates court in relation to a re-opening of a sentence pursuant to section 188 of the Penalties and Sentences Act is MG1.
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).