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
- 4 – Commonwealth family law and child support guidelines
- 5 – Commonwealth civil law guidelines
- 6 – State family guidelines
- 7 – State civil law guidelines
- 8 – Public interest and strategic litigation
- 9 – Standard grants assessment process
- 10 – Simplified grants assessment process
- 11 – Referral and practitioner panels
- 12 – Means test
- 13 – Commonwealth merits test
- 14 – State reasonableness test and interests of justice test
- 15 – Special circumstances
- 16 – Applying for a grant of legal assistance
- 17 – Decision to grant or refuse assistance
- 18 – Reconsideration and review of decisions
- 19 – Standard terms and conditions
- 20 – Contributions and overdue payments
- 21 – Abandoning legal assistance
- 22 – Finalising grants of legal assistance
- 23 – Allocation of work to lawyers and law firms
- 24 – Payments to lawyers and service providers
- 25 – Compliance reviews
- 26 – Privacy protection
- 27 – Complaints and feedback
- Topic index
- Invoice, worksheets and forms
- Contact us
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; or
- in a traffic matter, where the person received a term of immediate imprisonment.
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 correction order
- a suspension of a driver’s licence
- a suspended sentence
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 weighed against the benefit of the appeal, particularly having regard to the other demands on the legal aid fund.
The appeal may be against both sentence and conviction.
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.
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 application satisfies 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 seeking a grant of legal assistance via the standard grants assessment process should submit an application via ATLAS for assessment, including all of the following documents:
- copies 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.
Simplified grants assessment process
Lawyers seeking a grant of legal assistance via the simplified grants assessment process 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 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.