Expensive cases in criminal law

Legal Aid Queensland may deem a matter as an expensive case if the following tests are satisfied:

• the applicant has been provided aid for the substantive matter, and
• the matter involves a brief of evidence comprising a large volume (>2,500 pages) of material, and
• the matter meets one or more of the following expensive case criteria:
  • any hearing is likely to last more than 15 days
  • there are multiple (three or more) co-accused
  • there are complex legal issues, such as
    • charges relating to relatively untested law (eg terrorism, double jeopardy laws)
    • contested expert evidence
  • a matter involves a long period of offending and multiple offences/complainants
  • the charges are historical (with the passage of time complicating defence preparation)
  • there are significant complexities involved in communicating effectively with the client which will impact on the conduct of the case by lengthening the preparation and hearing times, such as:
    • an interpreter is required and lengthy conferences are needed
    • the client has a significant disability (psychiatric/psychological, intellectual or sensory)
    • cultural issues

Documentary requirements

Extension of aid requests received from preferred suppliers or in-house practitioners

Practitioners seeking a matter be deemed as an expensive case must lodge:

• an extension of aid request through the Grants Online system
• a completed Expensive Case Request Form accessible through Grants Online
• a copy of the index to the prosecution brief of evidence

For Supreme Court trial matters which fall under Practice Direction 6 of 2013 the completed pre-trial memoranda should be attached when available.

Requests must be made within sufficient time to be considered by Legal Aid Queensland. The amount of the preparation grant available for late applications will be limited by the proximity of the actual hearing. Retrospective requests will be considered in accordance with Legal Aid Queensland’s policy in relation to retrospective grants of legal assistance.

Interpretation

Assessment

If it is determined the case meets the documentation criteria and one or more of the other criteria it may be declared an expensive case and additional preparation time will be allowed.

An assessment of the number of hours to be allocated will be made and a grant of aid will issue to the practitioner.

The calculation of additional preparation hours is derived from the information provided in the Expensive Cases Request Form. The allocation of additional hours is for the preparation of the matter and includes all conferences and other attendances.

The assessment of the additional aid to be granted will also consider whether the allocation represents value for money, is reasonable, and that funding is available within allocated budget.

What is considered in calculating additional preparation time

Note: Preparation includes all matters attended to from the date aid effective. Any previous standard grants (including prison visit grants) will be cancelled or if already paid the amount paid will be deducted from the approved expensive case preparation amount.

Printed material (including that delivered electronically converted to pages)

Material to be perused (100 pages per hour) such as:

• witness statements
• reports
• transcripts
• other substantive material

Material to be scanned (200 pages per hour) such as:

• telephone intercepts
• text messages
• photographs/exhibits
• exhibit logs
• surveillance logs
• investigation and crime scene logs
• download telephone information
• medical and other records
• bank statements and other financial material

  Audio Visual Material

  Watching/Listening for Audio Visual material (hours of material), such as:

  • Records of interview (not transcribed)
  • CCTV footage
  • other recorded material

  An assessment will be made of hours allowed for solicitor and hours of relevant material briefed to counsel.

  Multiple accused

  The number of defendants involved in the matter.

  Where a firm/counsel acts for more than one co-accused the variable nature of the cases against the separate accused and the likely impact of this on overall preparation will be considered.

  The standard rate of 50% additional preparation does not apply to expensive case arrangements.

  Witnesses

  Witnesses required to be prepared for hearing and the nature of the witnesses to be called for example identification witnesses or expert witnesses.

  Hearing days

  The number and nature of pre-trial issues to be determined and the number of days the matter is listed for trial.

  Matters previously funded as expensive cases at committal

  Further preparation pertaining to higher court trials that have been previously provided with an expensive case grant at the committal stage will be limited to new material and a modest refresher fee as considered necessary, for example where there has been significant delay of more than 6 months not attributable to the funded party.

  Adjourned trial and re-trials

  Where a trial is adjourned or where a re-trial occurs, a modest refresher fee for solicitor and counsel will be provided where the same counsel is engaged in addition to an allowance for reading of transcripts, where a revised defence strategy is required or there are other exceptional circumstances.

  If the same counsel is not briefed for the re-trial reasons for alternative briefing should be supplied with a request for additional preparation fees.

  Transfer of matters and expensive cases

  Where a request for a transfer of aid (in-house or assigned) involves a matter with a previously approved expensive case they must be referred to a grants manager for consideration. An expensive case grant is not automatically approved to the new practitioner and a new request must be submitted by the new practitioner.

  Requests for 2 counsel (including SC or QC)

  It is rare that a QC/SC or second counsel is approved in legal aid matters save for High Court or Court of Appeal matters. It is only where complex legal issues are argued on appeal or at trial. Cogent reasons must be advanced by the junior counsel briefed as to the need for QC/SC.

Grant(s) of aid

The grants of aid for additional preparation for expensive cases are:

• EXPS - additional preparation for solicitor
• EXPC - additional preparation for counsel
• EXPQ - additional preparation for Queen's counsel

Review of decisions

Decisions not to deem a criminal law matter expensive are not appealable to the external review officer (see review of decisions).

Appeals in relation to the extent of the approved expensive case preparation grant will be referred to the officer with the next level of delegation to the initial decision maker with the CEO having ultimate delegation.