Guideline 1.1 – ‘not guilty’ plea in the Magistrates’ Court

VLA may make a grant of legal assistance to a person who has been charged with a criminal offence to be heard in the Magistrates’ Court if:

• the person pleads ‘not guilty’
• the person has a ‘reasonable prospect of acquittal’ (see below) on the most serious charge or charges (that is, the ones involving the most serious penalty) arising from a single set of facts
  and
• a conviction is likely to result in:
  • imprisonment
  • a suspended term of imprisonment
  • in serious or complex matters, in which there is a likelihood the magistrate will impose a community correction order requiring more than 200 hours of unpaid community work.

See below for details of the necessary supporting information.

Meanings

Reasonable prospect of acquittal

A ‘reasonable prospect of acquittal’ means that a careful and experienced lawyer would consider it likely that a magistrate could find the person ‘not guilty’ of the offence. The lawyer must take all the evidence and circumstances of the case into account and the chance of acquittal must be real and not fanciful.

This requires much more than having only an arguable case. The evidence and circumstances include:

• the person’s instructions
• the strength of the prosecution’s case, including both direct and indirect evidence
  and
• the admissibility of the prosecution’s evidence, which depends on:
  • the likelihood that they obtained evidence illegally (for example, the person’s admission was not voluntary, the person was not informed of their right to silence or the police acted illegally)
  • the likelihood that the evidence may be unduly prejudicial to the person
    and
• the availability and the strength of the evidence supporting the person’s defence.

Likely to result in

‘Likely to result in’ means the actual penalty the person could expect to receive. The actual penalty will depend on all of the following:

• the nature and circumstances of the charge or charges
• the person’s prior convictions (if any)
• the seriousness of the offence (or the extent to which the law was broken) compared to other examples of the same offence (for example, the amount stolen, the nature of injuries, the amount of drugs)
  and
• any mitigating or aggravating circumstances.

However, in assessing the likely penalty, the person’s financial position is not relevant. For example, a fine may be the likely penalty. But if the person cannot afford to pay a fine and they will therefore seek a community correction order or imprisonment, then the likely penalty is still a fine.

The expression ‘likely to result in’ means the same as ‘likely penalty’.

Examples of ‘likely penalty’

• A person is charged with theft of a small quantity of fruit and vegetables from a supermarket. Her defence is that she was waiting at the checkout when her four-year-old son ran away past the checkout and out the door. She followed him, still carrying the items. She had intended to return and pay for the items. She has no prior convictions. She may have a good defence to the charges but if she is convicted of theft, then she is likely to receive a penalty less serious than a community correction order of more than 200 hours. Therefore, she would not qualify for a grant of legal assistance.
• A person is charged with burglary of his former domestic partner’s house. His defence is that:
  • he believed he had permission to enter the premises
  • he entered using a key she had given him
  • he wished to collect some items that belonged to him.

He has numerous recent prior convictions for burglary and theft, for which he received a term of imprisonment. If he is convicted of burglary, then it is likely that he would receive a penalty at least as serious as a community correction order of more than 200 hours. If his defence is considered enough to give him a reasonable prospect of acquittal, then VLA would make a grant of legal assistance.

Documentary requirements

Applications under this guideline are within the simplified grants assessment process or  the standard grants assessment process.

Standard grants assessment process

Lawyers or other applicants seeking a grant of legal assistance via the standard grants assessment process should forward all of the following documents for assessment:

• a completed VLA application form
• copies of the charge or charges
• the basis for the defence or defences
• full details of the person's prior convictons (if any)
• details of the evidence they will rely on to support the defence or defences
  and
• if the application is lodged through a lawyer, then the lawyer’s assessment of the strengths and weaknesses of the defence or defences
• relevant proof of means (if a waiver does not apply).

Simplified grants assessment process

Lawyers seeking a grant of legal assistance via the simplified grants assessment process should submit a completed simplified VLA application form and a summary crime checklist only after ensuring that the following documents are retained on file unless they are requested by VLA for assessment:

• a reference to guideline 1.1
• copies of the charge or charges
• the basis for the defence or defences
• full details of the person's prior convictons (if any)
• details of the evidence they will rely on to support the defence or defences
  and
• the lawyer’s assessment of the strengths and weaknesses of the defence or defences
• relevant proof of means (if a waiver does not apply).

Lawyers are also encouraged to complete a summary crime worksheet and a proof of means worksheet for their file.