Guideline 3.2 – committal proceedings in other cases

In any matters other than those detailed in criminal law guideline 3.1, Victoria Legal Aid (VLA) may make a grant of legal assistance to a person for representation at committal proceedings if, from the material the person or their lawyer gives VLA, VLA is satisfied that there is a 'strong likelihood' that a benefit will result from representation of the person.

Examples of the ‘benefit’ that may result from representation at a committal hearing include that:

the charge which the person faces will be dealt with summarily
a committal hearing is likely to identify an early plea
a committal hearing will lead to a significant reduction in the length of any later trial or plea
the person will be discharged at the committal.

Each of these situations is discussed further below.

Strong likelihood

The expression ‘strong likelihood’ means that the desired result is ‘more likely than not’. That is, the prospects of achieving the desired result are considerably higher than not achieving it.

Whether there is a ‘strong likelihood’ of benefit resulting from representation of the accused person at a committal hearing depends on both:

the accused person’s instructions
the strength or weakness of the prosecution case.

Charge will be dealt with summarily

In a matter which must initially be listed for a committal hearing, VLA may make a grant of legal assistance for representation at the committal if it is both practicable and likely that the matter can be dealt with summarily (for example, a plea on a lesser charge). This will depend on:

the strength of the prosecution case
whether the principal charge can be heard and determined summarily
whether the prosecution may offer a lesser charge.

Example of a matter which could be resolved summarily

A person is charged with intentionally causing serious injury. The available evidence tends to show that:

it will be very difficult for the Crown to prove an intent to cause serious injury
the evidence could satisfy a charge of recklessly causing serious injury
the court is likely to refuse to commit the accused person on the most serious charge but may find there is enough evidence to justify a committal on the lesser charge of recklessly causing injury.

As the lesser charge can usually be resolved summarily, VLA is likely to make a grant of legal assistance for the committal hearing.

Example of a matter which is unlikely to be resolved summarily

A person is charged with possessing a commercial quantity of cannabis. The police evidence is strong and the police botanist has confirmed that the substance is cannabis.

It is highly unlikely that the committal would result in the charges being dealt with summarily. VLA will not make a grant of legal assistance for committal on this ground.

Committal hearing is likely to identify an early plea

If VLA makes a grant of legal assistance for representation at a committal hearing, then there must be a strong likelihood that an early plea (either in the Magistrates’ Court or in a superior court) will be identified.

Example of a matter where an early plea can be identified

A person is charged with the theft of goods valued at $100,000. The accused person admits stealing the goods but instructs their lawyer that the goods are over-valued by the police and are really worth only $27,000. The accused person’s lawyer wants to cross-examine the prosecution’s witness at a contested committal about the method of valuation of the goods. If VLA makes a grant of legal assistance for this purpose, then the accused person will plead to the reduced value in the County Court. VLA is likely to make a grant of legal assistance for the committal on this ground.

Committal will lead to a significant reduction in the length of any later trial or plea

If VLA makes a grant of legal assistance for a committal hearing on the ground that it will lead to a significant reduction in the length of any later trial or plea, then VLA must be satisfied that there are good reasons for doing so. The reasons may include that:

cross-examination of a particular prosecution witness may lead to an agreed amended summary of facts to which the accused person may later plead
limited cross-examination of difficult and complex prosecution evidence will clarify the issues which the accused may later face at trial
cross-examination may result in evidence being admitted on an agreed basis at a later trial
cross-examination of a particular prosecution witness may discredit that witness, which may result in the strong possibility that the witness will be excluded from a later trial.

The accused person will be discharged at committal

If VLA makes a grant of legal assistance for representation at a committal hearing on the ground that it will result in the accused person being discharged, then VLA must be satisfied that the evidence does not support a conviction.

Sexual offence cases

Some sexual offence matters may not satisfy the committal guideline. In limited cases, assistance may still be granted for preparation and one day to enable the applicant to be represented when the alleged victim is cross-examined. For any further extension, assistance must be sought from VLA prior to the second day’s hearing. Aid beyond the first day will only be granted where the victim’s testimony has extended beyond one day and a second is required.

See also: Applying for a grant of legal assistance for information about extending a grant of legal assistance.

Example of a limited grant of legal assistance in a sexual offence case

A complainant alleges that the accused person has committed a sexual offence against her. There is a strong prosecution case and consent is not an issue. Usually, the matter would not be eligible for a grant of assistance under this guideline. However, if the accused person has been given leave to cross-examine the alleged victim on certain issues, VLA may make a limited grant of legal assistance of up to one day to ensure that counsel, and not the accused personally, conducts the cross-examination.

Crimes (Sexual Offences) Act 2006

Where a person is charged (after 1 December 2006) with a sexual offence and the victim is either a child or suffers a cognitive impairment, the only examination of the victim will take place in the County Court at a Special Hearing. An additional preparation fee and appearance fees are available for special hearings as set out in Table F – Lump sum fees for County Court and Supreme Court stage of an indictable crime matter.

Aid for committal: child victim

The fact that the victim is a child is unlikely to be an issue in dispute. In recommending aid for committal, solicitors should have regard to the fact that there will be no cross-examination of the victim at committal stage.

Aid for committal: victim with a cognitive impairment

The fact that the victim suffers from a cognitive impairment may be an issue. A solicitor may recommend aid for committal to challenge the question of whether the victim is cognitively impaired. A solicitor may seek assistance for an expert report in support of the challenge. In all other respects, solicitors recommending aid for committal should have regard to the fact that there will be no cross-examination of the victim.

Proceedings for which a grant of legal assistance may be made

A grant of legal assistance for a committal may be for either:

general preparation
a contested committal.

See: Table E – Lump sum fees for Magistrates' Court stage of an indictable crime matter.

General preparation

General preparation is payable in all indictable matters, as set out in Table E. It includes taking instructions and advising the client, reading the material, negotiating with the prosecution, and preparing and filing the Form 32.

Where the committal guideline is satisfied, fees for committal mention can be claimed.

Example

A defendant is charged with intentionally cause serious injury. The police case includes statements from many onlookers. However, the witnesses’ statements do not clarify the issue of the defendant’s involvement. A committal mention would be justified in order to negotiate with the police to see whether they are willing to proceed on a lesser charge, based on the evidence to hand. The practitioner should recommend a grant of legal assistance.

Contested committals

A separate grant of assistance must be sought if a case proceeds to contested committal. This grant will provide fees to further prepare and attend at the contest.

Although all efforts to resolve the matter at committal mention may have been exhausted, practitioners must address the committal guidelines before recommending assistance for contested committals. The standard for satisfying the requirements of the guidelines in contested committals is higher than for a committal mention and negotiation. Even if the guideline is met, the practitioner must show justification for the contested committal. This is because:

(in most cases) the complete brief will have been served on the defendant
issues will have been negotiated with the prosecution at the mention, thus giving a more complete picture of what case the prosecution intends to prove
more complete instructions, and proofs of evidence, will have been obtained by the practitioner.

When recommending assistance for a contested committal, the practitioner’s file must include:

the basis upon which it is submitted the matter would benefit from a contested committal
details of the prosecution evidence to be challenged at the committal and how this will benefit the defence case.

Where evident from the outset that the committal will exceed two (2) days, practitioners must refer the matter to VLA for assessment.

Committal hearings in excess of two days

A solicitor’s recommendation is limited to a contested committal of two days. If assistance in excess of VLA’s cost ceiling is sought, the application cannot be the subject of a practitioner recommendation to aid under the Simplified Grants Process. The application must be submitted to VLA for assessment. This application must be submitted as soon as it is known the committal is likely to exceed two days. When submitting such applications, practitioners must:

provide a copy of the prosecution summary
provide a copy of the witness list contained in the prosecution summary
provide a copy of the Form 32
address the contested committal guidelines
provide details of any circumstances affecting the length of the committal, such as the use of interpreters, use of video conferencing facilities, and the number of co-accused.

Documentary requirements

Applications under this guideline are normally only within the simplified grants assessment process.

Lawyers should submit an application via ATLAS, only after ensuring that the following documents are retained on file unless they are requested by VLA for assessment:

a reference to the appropriate guideline under which assistance is sought
details of the charges
the basis upon which it is submitted the matter would benefit from negotiations with the prosecution
details of the evidence to be relied upon in support of the defence(s)
the practitioner’s assessment of the strengths and weaknesses of the defence(s)
the practitioner’s assessment of the strengths and weaknesses of the prosecution’s case
relevant proof of means.