Guideline 7.1 – criminal appeals to the County Court

Guideline 7.1 – criminal appeals to the County Court

Victoria Legal Aid (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.

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 proof of means worksheet for their file.