Guideline 4 – trials in the County or Supreme courts

VLA may make a grant of legal assistance to a person for representation at a criminal trial in the County Court or in the Supreme Court only if:

• the charges cannot be heard and disposed of in the Magistrates’ Court (unless, if they can be heard in the Magistrates’ Court, there are compelling reasons why they should not be)
  and
• it is desirable in the interests of justice to provide a grant of assistance.

‘Compelling reasons’ for not hearing charges in the Magistrates’ Court

If a charge could normally be heard and disposed of in the Magistrates’ Court, then VLA may make a grant of legal assistance for a criminal trial in the County Court or in the Supreme Court only if there are compelling reasons to do so.

There is no fixed definition of ‘compelling reasons’. However, one or more of the following factors may be sufficient to establish ‘compelling reasons’:

• the degree of seriousness of the offence
• the complexity of the proposed defence
• any unsettled or untested principles to be addressed
• the potential that the court may order the accused person to pay civil damages if the court finds the accused person to be criminally liable.

VLA will assess whether the reasons justify making a grant of legal assistance for representation at a trial in the County Court or in the Supreme Court.

If the person’s lawyer believes there are compelling reasons for an accused person to refuse to accept the jurisdiction of the Magistrates’ Court, then the lawyer must give VLA a written statement of those reasons. This rule applies regardless of whether VLA processes the application for a grant of legal assistance through the simplified grants assessment process or the standard grants assessment process. 

After VLA receives the information from the lawyer, then VLA will assess whether, in all the circumstances, a grant of legal assistance should be made for a trial in the County Court or in the Supreme Court.

Example of a case with no compelling reasons

A person has been charged with theft of an amount under $25,000. The charges could be, and usually are, heard at summary level in the Magistrates’ Court. However, the accused person has decided to proceed by way of a jury trial in the County Court. There are no compelling reasons to support the accused person’s election by providing a grant of legal assistance for a trial in the County Court.

The interests of justice and the extent of legal representation in trials

When considering whether to make a grant of legal assistance for a criminal law trial, VLA must consider a number matters, including:

• whether it is in the interests of justice to aid the matter, having regard to the nature and extent of assistance sought by the applicant
• the merits of the application for a grant of legal assistance.

The ‘interests of justice’ is not a closed category. 

The merits of the application will be considered when determining the extent of legal representation to be provided.

VLA may decide to limit any grant of legal assistance:

• to a plea of guilty
• to assistance to follow a specific defence argument or arguments
• to any other form of assistance considered appropriate in the circumstances.

County Court trials and Supreme Court trials

Upon conviction and sentence, counsel is required to provide a written advice as to the merits of an appeal against conviction and/or sentence within 7 days of sentence. The fee for such advice is set out in Table F.

Documentary requirements

Applications under this guideline are normally only within the simplified grants assessment process. An exception to this is trials with an estimated duration of more than 60 days (see below).

The lawyer may recommend only a maximum of 60 days (12 weeks). The lawyer must not recommend more days than it is reasonable to anticipate. If the trial takes longer than the lawyer originally estimated, then the lawyer may apply for, and recommend that, VLA provide further assistance. See Applying for a grant of legal assistance for information about obtaining further assistance and additional assistance.

Trials which will likely take less than 60 days

Lawyers seeking a grant of legal assistance via the simplified grants assessment process should submit a completed simplified VLA application form and an indictable 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 4
• the accused person’s instructions
• the accused person’s proposed plea of ‘not guilty’ and the reasons why a ‘guilty’ plea is not appropriate
  and
• a brief statement of the evidence to be relied on. If a statement or a piece of evidence determines a particular issue, then the lawyer must clearly identify that statement or piece of evidence so that VLA may effectively carry out its compliance check
• a copy of the prosecution brief, with the relevant parts of the evidence relied upon as the basis of the defence clearly identified
• a copy of the accused person’s proof of evidence
• clear notes about the dates and nature of court attendances
• a copy of the completed post-committal negotiation checklist
• relevant proof of means.

Lawyers are also encouraged to complete a criminal trials worksheet for their file.

The lawyer must also attach to the application for assistance for a criminal trial a recommendation about the number of days the trial will take.

Trials which will likely take longer than 60 days

If it is clear from the beginning that a trial will take longer than 60 days (12 weeks), then the lawyer cannot recommend that VLA make a grant of legal assistance. Instead, the lawyer must submit an application for VLA to assess under the standard grants assessment process.

Supporting documents

Lawyers seeking a grant of assistance under this guideline should submit a completed VLA application form. In the application, the lawyer must include details about:

• the material which the instructing lawyer and/or counsel must peruse in preparing for the trial
• any disbursements to be incurred
• the prosecution witness list
• the number and the names off any co-accused people
• the anticipated number of days the trial will take 
• whether full instructing is necessary and, if so, the reasons why
• any other factors which may affect the length of the trial.

VLA may also ask the lawyer to give further details before offering a fee package

Lawyer wishes to brief two counsel or senior counsel

If the lawyer wishes to brief two counsel or senior counsel, then the lawyer cannot recommend that VLA make a grant of legal assistance. Instead, the lawyer must give VLA a written request to assess. See Criminal law guideline 11.

In the written request, the lawyer must address all the relevant matters set out in VLA’s two-counsel policy and fully outline the factors which are relevant for each type of grant.

Seeking preparation fees greater than VLA’s lump sum fee

Under the simplified grants process, lawyers may recommend up to $3000 in further preparation fees by submitting a completed preparation fees worksheet. 

See Table ZZ – Hourly rates for counsel’s preparation fees and conferences in criminal trials for more information about information about preparation fees.