Guideline 1.1 – ‘not guilty’ plea in the Magistrates’ Court

Guideline 1.1 – ‘not guilty’ plea in the Magistrates’ Court

Victoria Legal Aid (VLA) may make a grant of legal assistance to a person who has been charged with a criminal offence to be heard in the Magistrates’ Court if:

  • the person pleads ‘not guilty’
  • the person has a ‘reasonable prospect of acquittal’ (see below) on the most serious charge or charges (that is, the ones involving the most serious penalty) arising from a single set of facts
    and
  • a conviction is likely to result in a term of immediate imprisonment.

See below for details of the necessary supporting information.

Meanings

Reasonable prospect of acquittal

A ‘reasonable prospect of acquittal’ means that a careful and experienced lawyer would consider it likely that a magistrate would find the person ‘not guilty’ of the offence. The lawyer must take all the evidence and circumstances of the case into account and the chance of acquittal must be real and not fanciful.

This requires much more than having only an arguable case. The evidence and circumstances include:

  • the person’s instructions
  • the strength of the prosecution’s case, including both direct and indirect evidence
    and
  • the admissibility of the prosecution’s evidence, which depends on:
    • the likelihood that they obtained evidence illegally (for example, the person’s admission was not voluntary, the person was not informed of their right to silence or the police acted illegally)
    • the likelihood that the evidence may be unduly prejudicial to the person
      and
  • the availability and the strength of the evidence supporting the person’s defence.

Likely to result in

‘Likely to result in’ means the actual penalty the person would expect to receive. The actual penalty will depend on all of the following:

  • the nature and circumstances of the charge or charges
  • the person’s prior convictions (if any)
  • the seriousness of the offence (or the extent to which the law was broken) compared to other examples of the same offence (for example, the amount stolen, the nature of injuries, the amount of drugs)
    and
  • any mitigating or aggravating circumstances.

However, in assessing the likely penalty, the person’s financial position is not relevant. For example, a fine may be the likely penalty. But if the person cannot afford to pay a fine and they will therefore seek a community correction order or imprisonment, then the likely penalty is still a fine.

Whether the person consents to enter into a Community Corrections Order is also not relevant. For example, if the likely penalty is a Community Corrections Order but the person does not consent to enter into an order, and therefore faces an immediate term of imprisonment, that person still does not qualify under this guideline.

The expression ‘likely to result in’ means the same as ‘likely penalty’.

Documentary requirements

Applications under this guideline are within the simplified grants assessment process.

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 1.1
  • copies of the charge or charges
  • the basis for the defence or defences
  • full details of the person's prior convictions (if any)
  • details of the evidence they will rely on to support the defence or defences
  • the lawyer’s assessment of the strengths and weaknesses of the defence or defences
  • relevant proof of means (if a waiver does not apply).

Lawyers are also encouraged to complete a summary crime worksheet, a proof of means worksheet and a medical/psychologist/psychiatrist report worksheet (where relevant) for their file.