Guideline 7.1 – criminal appeals to the County Court

VLA may make a grant of legal assistance to a person who seeks a criminal appeal to the County Court from a decision of the Magistrates’ Court if the matter would be eligible for legal assistance under the criminal law guidelines for matters heard in the Magistrates’ Court. For example, VLA will not make a grant of legal assistance for an appeal to the County Court in relation to matters such as:

• a fine
• a community-based order without conviction
• a suspension of a driver’s licence.

In particular, under the State reasonableness test:

• there must be reasonable grounds for the appeal (see below)
• the seriousness of the penalty against which the person seeks to appeal is relevant
• the cost of the appeal must be considered, particularly having regard to the other demands on the legal aid fund.

The appeal may be against both sentence and conviction.

See below for detailed examples of when VLA may or may not make a grant of legal assistance for a criminal appeal to the County Court.

Reasonable grounds for the appeal

‘Reasonable grounds for the appeal’ means that an experienced lawyer would honestly consider, in all the circumstances of the case, that the appeal is reasonably likely to succeed. This means more than having an arguable case. The grounds for the appeal must be sound. The grounds cannot be fanciful, imaginary, vexatious or contrived.

Appeal against custodial sentence

If the person seeks to appeal against a custodial sentence, then the part of the State reasonableness test relating to cost/benefit is more likely to be met than if the appeal is against a lighter sentence.

Examples of appeals for which a grant of legal assistance would not be made

The cost of granting legal assistance outweighs the benefit

The following are examples of criminal appeals to the County Court for which VLA would not make a grant of legal assistance because the cost outweighs the benefit:

• The person seeking a grant of legal assistance to appeal was sentenced to a loss of their driver’s licence for three years. A one-year loss of licence was considered more likely.
• The person seeking a grant of legal assistance to appeal pleaded guilty and the magistrate imposed a fine of $1000. A fine of $500 was considered more likely.
• The person seeking a grant of legal assistance to appeal pleaded guilty to theft and the magistrate imposed a fine of $800 with conviction. The person is employed part-time and the conviction will affect her employment. A fine without conviction was considered the most likely penalty.

The likely penalty does not meet the criminal law guidelines

The following are examples of criminal appeals to the County Court for which VLA would not make a grant of legal assistance because the likely penalty does not meet the criminal law guidelines for matters heard in the Magistrates’ Court:

• The person seeking a grant of legal assistance to appeal pleaded guilty and the magistrate imposed a penalty less than a 200-hour community-based order with conviction. Criminal law guideline 1.2 requires a likely penalty of more than a 200-hour community-based order with conviction.
• In a State traffic matter, a person seeks legal assistance to appeal against a disqualification from getting a driver’s licence. Criminal law guideline 2 requires the likely penalty to be imprisonment or a suspended term of imprisonment.

Example of an appeal for which a grant of legal assistance may be provided

The benefit of making a grant of legal assistance outweighs the cost

The person seeking a grant of legal assistance to appeal was sentenced to three months imprisonment. A term of one months’ imprisonment was considered the most likely penalty. VLA would consider the benefit of providing a grant of legal assistance outweighs the cost.

If a grant of legal assistance was made previously for the Magistrates’ Court proceeding

If VLA previously made a grant of legal assistance to a person for a criminal hearing in the Magistrates’ Court and the person later seeks additional assistance for an appeal on the basis that the sentence imposed by the magistrate is excessive, then the reasons for the original grant of legal assistance are relevant to any further grant.

For example, VLA made a grant of legal assistance to a person for a Magistrates’ Court criminal hearing on the basis that the matter met Criminal law guideline 1.2. The magistrate imposed a 250-hour community-based order. VLA would not later make a grant of legal assistance to the person for an appeal to the County Court on the basis that the magistrate should have imposed only a fine or a community-based order of less than 200 hours.

Counsel’s advice to appeal does not necessarily meet these guidelines

The fact that counsel has advised that a person should appeal to the County Court does not, of itself, meet the criminal law guidelines. Counsel’s advice may be based on something outside the guidelines, for example, that there is an ‘arguable case’.

The lawyer acting for the person seeking a grant of legal assistance to appeal must consider carefully the weight to give to counsel’s advice. The lawyer must form an independent view about the prospects of the appeal succeeding, in the terms set out in the guidelines.

Appeal bail

VLA will not make a grant of legal assistance for a person to apply for appeal bail if the application for appeal bail is made, or could have been made, at the end of the Magistrates’ Court hearing after sentence.

If the person applies for appeal bail at a separate hearing date (and could not have applied at the end of the Magistrates’ Court hearing), then VLA may make a grant of legal assistance for the application if:

• the bail applicationsatisfies the guidelines for bail applications
• there is merit in the appeal
  and
• the appeal meets the relevant elements of Criminal law guideline 6.

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
• a copy of the notice of appeal
• the grounds they will rely on to support their application
• if the applicant is lodging the application through a lawyer, their lawyer’s assessment of the strengths and weaknesses of the appeal, whether the appeal is against conviction and/or sentence
• in an appeal against sentence, an indication of the appropriate penalty the person should have received and the reasons why
• full details of the person's prior convictions (if any)
• relevant proof of means.

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 7.1
• full details of the charge or charges
• a copy of the notice of appeal
• the grounds they will rely on to support the application
• the lawyer’s assessment of the strengths and weaknesses of the appeal, whether the appeal is against conviction and/or sentence
• in an appeal against sentence, an indication of the appropriate penalty the person should have received and the reasons why
• full details of the person's prior convictions (if any)
• relevant proof of means.

Lawyers are also encouraged to complete a County Court appeal worksheet and a proof of means worksheet for their file.