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Counsel to make bail application in the Supreme Court

Assessment criteria

For legal aid to be granted for counsel to make a bail application in the Supreme Court the following tests must be satisfied:

  • if the charges are deemed as specified criminal law proceedings, the applicant must be legal aided for the substantive criminal charges, or
  • if the charges are deemed as non-specified criminal law proceedings, the applicant must meet the means test, and
  • the applicant meets the guideline 6 - bail, and
  • the applicant meets the merits test, and
  • Legal Aid Queensland considers that one or more of the following factors apply which requires the expertise of counsel:
    • the gravity of the charges, or
    • the matter is a high profile case, or
    • the matter is of significant public interest, or
    • considerable argument is required by the defence.

Requirements

Extension of aid requests received from preferred suppliers or in-house practitioners

If a practitioner requires aid for counsel to conduct a Supreme Court bail application the practitioner must lodge an extension of aid request through the Grants Online system and advise how the matter meets the merits test with particular reference made to "appropriateness of spending limited public legal aid funds" test, and the "prudent self-funding litigant" test.

Interpretation

The gravity of the charges

With the exception of a charge of murder the gravity of charges alone would generally not be considered as sufficient to warrant the funding of counsel.

The matter is a high profile case

Legal Aid Queensland may consider funding counsel to make a Supreme Court bail application where the matter is a high profile case which has attracted significant media attention and is well known to members of the public.

The matter is of significant public interest

For the purposes of this policy, Legal Aid Queensland may consider funding counsel where the matter is of public interest and by funding counsel the matter will:

  • settle an uncertain area or question of law, or
  • resolve a question of law that affects the rights of a disadvantaged section of the public.

Considerable argument is required by the defence

Legal Aid Queensland may consider funding counsel to make a Supreme Court bail application where:

  • the prosecutions case is weak, and
  • there is voluminous material which needs to be considered to effectively argue the weaknesses of the case, and
  • considerable arguments need to be made in relation to sentencing range upon conviction (ie would an individual be required to serve any or more time should they ultimately be convicted?), or
  • the person is in a show cause situation under s 16 of the Bail Act 1980.

There is a strong likelihood of bail being granted

Legal Aid Queensland regard that there is a strong likelihood of bail being granted when an experienced practitioner would consider it likely that a judge could grant bail.

The practitioner must take all the evidence and circumstances of the case into account and the chance of bail being granted must be real and not fanciful. This requires much more than an arguable case.

Legal Aid Queensland will consider the following factors which may have a bearing on an applicants likelihood of bail being granted:

  • age of the applicant
  • seriousness of the offence
  • previous breaches of bail (including failures to appear)
  • previous breaches of probation (including prison escapes)
  • ties with Queensland
  • reverse onus (section 16)
  • availability of accommodation
  • availability and amount of surety
  • previous criminal history
  • opposition from crown
  • next date for court

Charges which are deemed as non-specified criminal law proceedings

If an applicant has been refused aid or has not applied for aid for representation in the magistrates court but is wishing to apply for Supreme Court bail aid may be granted without the applicant being funded for magistrates court proceedings if the above criteria are met.

Grant(s) of aid

The grant of aid for a Supreme Court bail application with counsel is CV.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).

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