Criminal law guideline changes

Criminal law guideline changes

The following content provides basic information only. Practitioners should refer to the VLA Handbook for lawyers for the relevant guidelines.

Major Criminal Cases Framework

The Major Criminal Cases Framework is the final action Victoria Legal Aid committed to as part of our focus on delivering high quality criminal trials.

The Major Criminal Cases Framework comes into effect on 1 February 2016. It applies to all new applications and extensions of legal assistance for major criminal cases, which includes committals over four days and trials likely to last more than 15 days.

These changes affect the Simplified Process – Committal Mention and/or plea in the County Court application form, the Simplified Process – Committal Mention and/or plea in the Supreme Court, the Simplified Process – Indictable Crime - Trial application form, the Submit Correspondence menu item and File Outcome menu item.

The following have been updated to reflect requirements under the Major Criminal Cases Framework:

To assist practitioners comply with the requirements and navigating the changes to ATLAS, we have developed a Major Criminal Cases Framework compliance guide (docx, 191.37 KB) and a user guide for ATLAS changes to reflect the Major Criminal Cases Framework.

Criminal Trial Preferred Barrister List

As part of the Delivering high quality criminal trials project, Victoria Legal Aid has undertaken a consultation process to ensure our major expenditure on jury trials delivers access to justice through quality legal services for our clients, efficiency for the courts, skilled and focused trial advocacy and value for money for the community.

As a result of the consultation Victoria Legal Aid identified five actions, which includes establishing a Criminal Trial Preferred Barrister List.

From 31 July 2015, practitioners must only brief a barrister on the Criminal Trial Preferred Barrister List, unless an exception is granted in advance (or transitional arrangements apply).

Exceptions to briefing a Preferred Barrister will not be granted for a major criminal trial (a trial that is likely to last more than 15 days).

Guideline 4 – Trials in the County and Supreme courts has been amended to reflect the above requirement.

To assist practitioners with understanding the above changes to briefing a barrister for a criminal trial and navigating the changes to ATLAS, we have developed a Criminal Trial Preferred Barrister List frequently asked questions (docx, 143.78 KB) and a user guide for ATLAS Changes to the Simplified Process – Indictable Crime – Trial application form (docx, 428.53 KB).

Court of Appeal guidelines

Last year, Victoria Legal Aid conducted a review of criminal appeals. Following this review, we introduced new guidelines and processes from 16 March 2015 that apply to applications for grants of legal assistance for criminal appeals to the Court of Appeal.

Guideline 7.8 – election to renew leave to appeal against conviction and/or sentence in the Court of Appeal

We may make a grant of legal assistance for an election to renew leave to appeal against conviction and/or sentence in the Court of Appeal where leave to appeal has been refused by a single judge and the applicant elects to proceed before a full bench of two or more judges in the Court of Appeal.

The applicant must advise in writing why the judge was wrong and address how the requirements in Guideline 7.8 are met. Table K has been amended to include new fees to reflect the introduction of Guideline 7.8.

New requirements where the sole ground of appeal relied upon is ‘manifest excess’

We introduced specific merits advice where the sole ground of appeal relied upon is manifest excess. Applicants must satisfy Victoria Legal Aid that the sentence was wholly outside the range available to the sentencing judge.

Guideline 7.4 and Guideline 7.5 has been amended to reflect this new requirement.

Grants process when the court elects to bypass the leave stage

Changes have been made to the grants assessment process where the court elects to bypass the leave stage and the appeal proceeds by way of the hearing of the leave application and appeal together before a bench of two or more judges.

Please refer to Guideline 7.4 and Guideline 7.6 for the process and documentary requirements.

To assist practitioners with understanding the changes, navigating Court of Appeal matters and preparing a merits advice, Victoria Legal Aid has developed:

  • a fact sheet detailing the changes to the guidelines and the processes for applying for a grant of legal assistance for appeals to the Court of Appeal
  • a Court of Appeal procedures checklist
  • a document to assist practitioners with preparing a thorough merits advice for conviction and/or sentence in the Court of Appeal.

Go to the 'Court of Appeal checklists and fact sheets' on the Criminal law resources page.

Instructing and co-counsel guideline

Victoria Legal Aid considered the comments of the Victorian Court of Appeal in the matter of R v Chaouk [2013] VSCA 99 and put in place an interim instructing and co-counsel guideline as follows.

Victoria Legal Aid will provide a fee for:

  • the instructing lawyer who has prepared the matter for trial; or
  • an instructing lawyer who is experienced and well versed in the facts of the case and the relevant law; or
  • junior counsel, where the assigned lawyer in consultation with their client determines that is more appropriate to ensure a fair trial in the particular case; or
  • junior counsel, where a legal practitioner who meets subsection a) or b) is not available or not preferred;

as and when required in a criminal trial.

This guideline determines that a grant of legal assistance for either an instructor or a junior counsel will be available in criminal trials before a jury as and when required. This is in addition to ordinary funding available for trial counsel and case preparation pre-trial.

This guideline was introduced as an interim guideline on 7 May 2013 and was made ongoing on 12 January 2015.

Instructing fees

From 12 January 2015, the fee for an instructing solicitor to attend to instruct at the County and Supreme courts in Table F changed from a half day fee to an hourly rate up to a maximum of five hours per day.

In order to claim the new fees, practitioners must record and retain on file:

Brief Analysis and Case Strategy fee

From 12 January 2015, VLA has provided a new fee to encourage early brief analysis and case strategy development prior to a committal mention for indictable matters.

The existing general preparation fee for solicitors in Table E has been halved to create two separate lump sum fees:

  • a documented Brief Analysis and Case Strategy fee to cover the work involved in either a solicitor or barrister undertaking the analysis
  • a lump sum general preparation fee to cover other general preparation undertaken by a solicitor.

Practitioners must keep evidence of the brief analysis and case strategy development on the file in order to claim the fee.

We encourage practitioners to use the new quality tools in the VLA Handbook for Lawyers to assist to demonstrate compliance with the documentary evidence required to claim the fee.

Two counsel guideline

From 7 May 2013, the two counsel guideline is no longer available. Lawyers, in consultation with their client, may decide to brief junior counsel instead of daily instructing, taking into account the needs of the client and the case.

Fees available to junior counsel

From 7 May 2013, lawyers may no longer recommend aid for preparation for junior counsel.

The daily fees available to junior counsel will be the same as those available for instructor and do not include a brief fee. Junior counsel’s preparation is included in the daily fee, which is higher than the subsequent day fee previously available to junior counsel.

Junior counsel will no longer be eligible for additional preparation.

Where aid has already been approved for preparation, Victoria Legal Aid will pay those fees granted.

Trial counsel

Victoria Legal Aid will continue to pay for one trial counsel for each trial. Trial counsel will be supported by either an instructor or junior counsel, but not both. The fees payable to trial counsel have not changed.

In exceptional cases, Victoria Legal Aid may allow fees for trial counsel who is of Senior Counsel. Senior Counsel may be assisted by either an instructor or by junior counsel, but not both.

Contact

If you have any questions about the eligibility criteria for criminal law, please call Victoria Legal Aid's Assignments Unit on (03) 9269 0600.