Table of contents
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Table of contents
- 1 – Introduction
- 2 – Types of matters that may be assisted
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3 – Criminal law guidelines
- Guideline 1.1 – ‘not guilty’ plea in the Magistrates’ Court
- Guideline 1.2 – ‘guilty’ plea in the Magistrates’ Court
- Guideline 1.3 – Assessment and Referral Court List matters
- Guidelines 1.4 and 1.5 – social security prosecutions
- Guideline 2 – traffic offence charges in the Magistrates’ Court
- Guideline 3.1 – committal proceedings involving homicide, consent or identification
- Guideline 3.2 – committal proceedings in other cases
- Guideline 4 – trials in the County or Supreme courts
- Guideline 4.1 – County Court and Supreme Court pleas
- Guideline 5.1 – proceedings in the Criminal Division of the Children’s Court
- Guideline 6 – bail applications in the Magistrates’, County and Supreme courts
- Guideline 7.1 – criminal appeals to the County Court
- Guideline 7.2 – interlocutory appeals to the Court of Appeal
- Guideline 7.3 – appeals to the High Court
- Guideline 7.4 – leave to appeal against sentence in the Court of Appeal
- Guideline 7.5 – appeal against sentence in the Court of Appeal
- Guideline 7.6 – leave to appeal against conviction/conviction and sentence in the Court of Appeal
- Guideline 7.7 – appeal against conviction/conviction and sentence in the Court of Appeal
- Guideline 8 – stay applications under the Criminal Procedure Act
- Guideline 9 – hearings under the Crimes (Mental Impairment and Unfitness to be Tried) Act
- Guideline 10 – Serious Sex Offenders (Detention and Supervision) Act
- County Court breach proceedings
- Guideline 11 – two-counsel policy
- 4 – Commonwealth family law and child support guidelines
- 5 – Commonwealth civil law guidelines
- 6 – State family guidelines
- 7 – State civil law guidelines
- 8 – Standard grants assessment process
- 9 – Simplified grants assessment process
- 10 – Referral and practitioner panels
- 11 – Means test
- 12 – Commonwealth merits test
- 13 – State reasonableness test and interests of justice test
- 14 – Special circumstances
- 15 – Applying for a grant of legal assistance
- 16 – Decision to grant or refuse assistance
- 17 – Reconsideration and review of decisions
- 18 – Standard terms and conditions
- 19 – Contributions and overdue payments
- 20 – Abandoning legal assistance
- 21 – Finalising grants of legal assistance
- 22 – Allocation of work to lawyers and law firms
- 23 – Payments to lawyers and service providers
- 24 – Compliance reviews
- 25 – Privacy protection
- 26 – Complaints and feedback
- Topic index
- Invoices, worksheets and forms
- Contact us
Guideline 3.1 – committal proceedings involving homicide, consent or identification
VLA may make a grant of legal assistance to a person for representation at committal proceedings if either:
- the person has been charged with homicide (including culpable driving and attempted murder)
- there is a real issue of consent or identification in the case.
However, if the charge or charges to which committal proceedings relate could be, and usually are, heard and disposed of in the Magistrates’ Court, then VLA will make a grant of legal assistance for representation at committal proceedings only if there are compelling reasons to do so. See Criminal law guideline 4 for a discussion of ‘compelling reasons’.
Cases involving an issue of consent
Cases where there is an issue of consent may involve, but are not limited to, allegations of sexual assault. Lack of consent is an issue of fact which the prosecution must prove.
If the accused person has instructed their lawyer that the consent of an alleged victim to a sexual act is an issue, then VLA may make a grant of legal assistance for committal proceedings under this guideline.
The issue of consent may also be relevant in other cases. For example, if someone has been charged with theft, their defence may be that the deprived owner consented to the removal of the goods. However, whether the issue of consent is ‘real’ depends on both:
- how convincing the accused person’s instructions are
- whether there are other facts supporting the defence.
Cases involving an issue of identification
In cases involving identification, the issues to be tested must be ‘real’. That is, proving, disproving or challenging identity must have a significant bearing on the guilt or innocence of the accused person.
Examples of cases where the issue of identification is not ‘real’
Example 1: A person is charged with assault. Four primary witnesses clearly identify the accused. One secondary witness identifies the accused more weakly. The prosecution is likely to rely on the four primary witnesses in establishing identity.
If there are no significant discrepancies in witnesses’ statements or some other compelling factor, then in most cases there would be little benefit in seeking a contested committal to:
- cross-examine the primary witnesses
and/or - cross-examine the secondary witness.
VLA will not make a grant of legal assistance for representation at a committal.
Example 2: The accused person is known to the victim (by name or by some other means). However, the accused person denies committing the offence.
This is not necessarily an issue of identity. It is more an issue of guilt or innocence. VLA will not make a grant of legal assistance for representation at a committal.
Example of a case where the issue of identification is ‘real’
A person is alleged to have assaulted a victim at night. The accused person instructs their lawyer that the street lighting is poor and that it was raining at the time of the offence. In addition, the sole witness was some 50 metres away from where the assault took place. The evidence of the witness is crucial in proving the case against the accused person.
The accused person’s lawyer seeks to cross-examine the witness to test the cogency of their evidence about the identity of the person who committed the assault. This would justify a contested committal.
VLA is likely to make a grant of legal assistance for representation at a committal.
Documentary requirements
Applications under this guideline are normally only within the simplified grants assessment process.
Lawyers seeking a grant of assistance 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 3.1
- the instructions of the accused person on these issues
- any substantiating facts
- a reference to the significance of the issues of consent and/or identity to the guilt or innocence of the accused person.
- relevant proof of means.
If the lawyer has not received a full copy of the prosecution brief, they must assess the case on the basis of the available materials. If any of the lawyer's decisions are based on limited information, then the extent of the limitation should also be noted on the file.