Guidelines - State – Criminal

Guideline 1 - Specified and non-specified criminal proceedings

Specified criminal proceedings

Specified criminal proceedings are:

• Committal proceedings in the magistrates court in respect of charges for which the maximum penalty exceeds 14 years
• Indictable offences in the children's court at every stage of the proceedings
• District and Supreme Court criminal proceedings
• References to the Mental Health Court in respect of indictable criminal proceedings
• Appeals to the Court of Appeal or the High Court with respect to criminal charges
• Breaches of probation, community service and suspended sentences in District and Supreme Courts
• Supreme Court Bail
• Any other proceedings, not being a civil proceeding, that Legal Aid Queensland determines.

The merit test does not apply to specified criminal proceedings other than Supreme Court bail applications and appeals. The means test does apply to specified criminal proceedings.

Non-specified criminal proceedings

Non-specified criminal proceedings are all criminal matters which are not specified criminal proceedings. The means test and the merits test both apply to non-specified criminal proceedings.

Guideline 2 - Summary trials in the magistrates court

Where the applicant has a reasonable defence to the charge and the charge does not involve a minor traffic prosecution or regulatory offence, a grant of legal assistance may be approved if one of the following criteria apply:

• conviction would be likely to result in a term of imprisonment, or
• conviction would be likely to have a detrimental effect on the defendant's livelihood or employment (actual or prospective), or
• the defendant suffers from a disability or disadvantage which prevents self representation, or
• The applicant is a child.

Guideline 3 - Pleas of guilty in the magistrates court

Legal assistance is not usually granted when a plea is taken in a court where there is a duty lawyer scheme operating unless it would be unreasonable to expect the duty lawyer to enter the plea. Legal assistance is not available for minor traffic prosecutions or regulatory offences.

Pleas of guilty will be entered by a duty lawyer unless:

• the defendant faces a real likelihood of being sentenced to a term of imprisonment that will result in immediate incarceration in a correctional centre for the first time, or
• the defendant faces a real likelihood of being sentenced to a lengthy term of imprisonment, which is generally interpreted to mean six months or more immediate incarceration in a correctional centre, or
• the requirement for the representing solicitor to gather additional information/evidence means that the matter cannot be dealt with by a duty lawyer, or
• the defendant has limited ability to give instructions because of a disability or disadvantage.

Guideline 4 - Committals

4.1. Legal assistance may be granted for committal proceedings in the magistrates court in respect of charges for which the maximum penalty exceeds 14 years. Committal proceedings in the magistrates court in respect of charges for which the maximum penalty exceeds 14 years are prescribed criminal proceedings and are not subject to a merit test.

4.2. Legal assistance may be granted in committal proceedings in respect of charges for which the maximum penalty is 14 years or less where it is likely that:

• the defendant will be discharged, or
• additional disclosure may result in the charge which the defendant faces not proceeding by way of committal and being dealt with summarily, or
• the committal will identify an early plea for a matter which must be determined in the District Court, or
• the committal will significantly reduce the length of a subsequent District Court trial, or
• the defendant has a disability or disadvantage which would prevent self-representation at committal proceedings.

4.3 A grants of legal assistance may be granted for committal proceedings related to the Committals Project in Brisbane Magistrates and Ipswich Magistrates Court.

Guideline 5 - Appeals and applications for leave to appeal

Legal assistance may be granted for an appeal or leave to appeal against conviction and/or sentence.

In addition, legal assistance may be granted to respond to a Crown appeal, without regard to the merit test.

Guideline 6 - Bail

Legal assistance may be granted for bail applications where:

• there is a strong likelihood of bail being granted, and
• bail is opposed by the prosecution.

Grants of legal assistance may also be granted where an applicant seeks to respond to an application for revocation of bail.

Guideline 7 - Other criminal proceedings

Grants of legal assistance may be granted for other court proceedings.

Guideline 8 - Dietrich applications

Assistance will not normally be provided for the purpose of an accused person conducting an application before a court seeking, pursuant to the decision of the High Court in Dietrich's case, an adjournment or stay of the case until legal representation is available.

Last updated 14 December 2015