Victoria Legal Aid

Duty lawyer and Help Before Court guidelines for criminal charges in the Magistrates’ Court

These guidelines are for at-court and pre-court services we provide to adults facing criminal charges at Magistrates’ Courts across Victoria.

Note: These guidelines do not apply to services in Children’s Court or Specialist Family Violence Court locations.

Services available to people in custody

Duty lawyers will prioritise assisting accused people who have been remanded in custody and are being brought to court for the first time on that charge.

Duty lawyers will give advice and representation on the day or help the person to get legal representation either through an application for legal aid or by a referral to a private practitioner. Wherever possible the duty lawyer will appear for unrepresented persons applying for bail.

Bail applications by Aboriginal or Torres Strait Islander accused will be prioritised. If the accused has a private lawyer, the duty lawyer will contact the lawyer to ensure they are aware that their client is in custody.

No income test applies to people in custody.

Services available to people on bail or summons

For all other accused adults the duty lawyer service provides:

  • information – by providing information to help an accused person to understand the charges they face, the process to be followed, how to represent themselves in court and where to access services, including those of a private practitioner. Information is available to anyone charged with an offence.
  • advice – by a lawyer providing advice to an accused person which can, at the discretion of the lawyer, include negotiating with the prosecution (including to arrange diversion). The lawyer should also refer the person to legal and non-legal support services as appropriate. The accused must satisfy an income test and be facing a straightforward charge.
  • in-court advocacy – by a lawyer providing advice to an accused person, negotiating with the prosecution (including to arrange diversion where appropriate) and representing the accused person in court on the day. The accused must satisfy an income test and be facing a significant charge or satisfy one of the priority criteriaExternal Link .
  • grant application – by helping an accused person to complete an application for legal assistance and, if necessary, helping the person to get an adjournment for that application to be processed.

Lawyers may exercise discretion around the level of service they provide (advice or in-court advocacy) for straightforward and significant legal matters based on capability factors.

Income test

An income test applies to all accused adults who are not in custody. The income test does not require the production of proof of income.

Priority criteria

For in-court advocacy the duty lawyer and Help Before Court services prioritise accused adults who:

  • identify as Aboriginal and/or Torres Strait Islander
  • have a cognitive impairment (such as an intellectual disability, an acquired brain injury or other serious cognitive condition)
  • experience of a mental health issue that significantly affects their ability to engage in the court process
  • are experiencing homelessness
  • cannot effectively communicate in English
  • have experienced family violence (including non-partner violence) or recent trauma including being a victim of violent crime
  • are non-citizens who appear to hold a temporary (including bridging) visa, or may not hold any visa (unlawful non-citizens).

Capability factors

For in-court advocacy the duty lawyer and Help Before Court services consider:

  • the person’s previous experience in the Magistrates’ Court (including prior criminal history) and their understanding of the summary crime legal process
  • the number of charges the person currently faces
  • the person’s experience of cultural or community practices, traditions or ideas that create a power imbalance or mistrust of authorities
  • the person’s English language proficiency or literacy.

Charge categories and common examples

Information only charge

Information only is provided to all adults who are facing charges where a fine is the most severe penalty.


  • unlicensed driving
  • careless driving
  • unregistered vehicle
  • interlock removal and licence restoration applications
  • infringements where person has elected to contest in court (no enforcement warrant)
  • infringements where there is an enforcement warrant but there is no risk of a penalty greater than a low-level fine, including:
    • most agency prosecutions (eg parking fines, local council, Department of Transport, RSPCA, Fisheries)
    • low-level traffic fines such as fail to wear a seatbelt, fail to display P plates etc.


  • use or possess small quantity of cannabis.

Public order

  • public drunkenness.

Exception: where an accused person has multiple charges in this category that make it likely the penalty will be more than a low-level fine.

For a full list of the information available to give to people seeking legal help see the summary crime fact sheets for clientsExternal Link .

Straightforward charge

A straightforward charge is one where the legal issues are narrow and the penalties are likely to be moderate fines and/or loss of licence.


  • shop theft under $500.


  • first or second drink/drug driving
  • first or second drive while suspended/disqualified
  • dangerous driving
  • breath-test refusal
  • infringements where person not elected to contest (enforcement warrant) but penalty is more than low-level fine.

Public order/procedural

  • hinder police
  • CCO/bail variations by consent, outstanding warrants
  • rehearings.

Significant charge

A significant charge is more complex (including application of sentencing law) where the accused is at a real risk of imprisonment, a community corrections order or a substantial fine (i.e. a total fine of more than $1500). This will require an assessment of prior convictions and aggravating circumstances.

Against a person

  • any assault (including unlawful assault) or cause injury charge
  • stalking
  • threat to kill
  • breach of FVIO/PSO.


  • burglary
  • criminal damage
  • possess prohibited weapon
  • social security prosecution
  • theft over $500.


  • drug charges other than use or possess a small quantity of cannabis.


  • third drink/drug driving
  • third drive while suspended/disqualified
  • infringements with s 165 Fines Reform Act submissions.

Public order/procedural

  • fail to appear with straightforward or significant charges.

Download the Summary Crime Duty Lawyer and Help Before Court Guidelines

The Summary Crime Duty Lawyer and Help Before Court Guidelines apply to Victoria Legal Aid staff and private practitioners delivering Help Before Court and duty lawyer services in criminal cases at Magistrates’ courts across Victoria.

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at

Reviewed 28 February 2024

In this section