Guideline 11 – two-counsel policy

Usually, VLA will make a grant of legal assistance for one counsel only in criminal trials. However, in exceptional circumstances, an authorised delegate may make a grant of legal assistance for two counsel.

In deciding whether circumstances are ‘exceptional’, the following will be considered:

• The volume of material which counsel must deal with in preparing for, or during, the trial.
• The time allowed or available for preparation.
• The anticipated length of the trial.
• The multiplicity and complexity of issues which the defence must confront.
• The willingness of counsel to accept a capped fee for their services in that particular case.
• The opinion of the lawyer or lawyers acting for the accused about the need for two counsel.
• The number of accused and the number of lawyers acting for them and the extent to which they can share the defence work among themselves.
• The number of counsel engaged by the prosecution.

However, VLA recognises that none of these issues alone indicates the need for two counsel to be appointed. The following examples illustrate this.

Examples:

• There may be a large volume of material in some cases, but much of that material could be repetitive (for example, transcripts of earlier trials).
• Some issues may be complex, but that complexity will be relevant only if the defence challenges that evidence.
• The Director of Public Prosecutions must prove all elements of the case against the accused, therefore the Director of Public Prosecutions may need two counsel to do this. However, if the defence does not intend to oppose much of that evidence, then the defence may not have such a difficult task.

If it is decided to make a grant of legal assistance for two counsel, then the authorised delegate will select the two counsel (including VLA in-house counsel) as they see fit and on such terms and conditions as they see fit.

The briefing of Senior Counsel (or Queen's Counsel) alone may be approved in complex criminal trials.

Table M sets out counsel’s fees if two counsel are briefed. An authorised delegate may vary these fees.

If Senior Counsel (or Queen's Counsel) alone is briefed, then VLA must negotiate the fees with them on a case-by-case basis. However, their fees must not be more than the fees set out in Table M for Senior Counsel.

VLA may approve the briefing of Senior Counsel in criminal trials where the briefing of Senior Counsel or the briefing of two counsel has otherwise not been approved subject to:

• Senior Counsel agreeing to accept the fees for junior in Table M
• a junior counsel being briefed and agreeing to accept the fee for junior in Table M.

The term ‘senior junior’ applies to counsel who lead junior counsel.

The fee for a plea is two-thirds of the brief fee.

VLA will pay for one counsel only to attend at sentence. The fee assumes that junior counsel will attend.

In order to promote mentoring and training opportunities for junior barristers VLA is piloting a program to fund junior barristers to appear as junior counsel to experienced and capable counsel in trials. The fees for junior counsel in Table M will be payable to junior barristers briefed in this pilot.