Notes on committal proceedings in other cases

Strong likelihood

The expression ‘strong likelihood’ means that the desired result is ‘more likely than not’. That is, the prospects of achieving the desired result are considerably higher than not achieving it.

Whether there is a ‘strong likelihood’ of benefit resulting from representation of the accused person at a committal hearing depends on both:

the accused person’s instructions
the strength or weakness of the prosecution case.

Charge will be dealt with summarily

Where a matter is initially listed in the committal stream, Victoria Legal Aid (VLA) may make a grant of legal assistance for representation at a contested committal if it is both practicable and likely that the matter can be dealt with summarily (for example, a plea to a lesser charge). This will depend on:

the strength of the prosecution case
whether the principal charge can be heard and determined summarily
whether the prosecution will agree to a plea to a lesser charge.

Example of a matter which could be resolved summarily

A person is charged with intentionally causing serious injury. The available evidence shows that:

it will be very difficult for the Crown to prove an intent to cause serious injury
the evidence could satisfy a charge of recklessly causing serious injury
based on the evidence, the court is likely to refuse to commit the accused person on the most serious charge but may find there is enough evidence to commit the accused to trial on the lesser charge of recklessly causing serious injury.

As the lesser charge can be heard and determined summarily, VLA is likely to make a grant of legal assistance for the committal hearing.

Example of a matter which is unlikely to be resolved summarily

A person is charged with possessing a commercial quantity of cannabis. The police evidence is strong and the evidence of the botanist has confirmed that the substance is cannabis and that the quantity is a commercial quantity.

It is highly unlikely that the committal would result in lesser charges which can be dealt with summarily. VLA will not make a grant of legal assistance for a contested committal in such circumstances.

Committal hearing is likely to identify an early plea

If VLA makes a grant of legal assistance for representation at a contested committal hearing on the basis that the committal is likely to result an early plea, then there must be a strong likelihood that the contested committal hearing will result in an early plea (either in the Magistrates’ Court or in a superior court).

Example of a matter where an early plea is likely to result from a contested committal hearing

A person is charged with the theft of goods valued at $150,000. The accused person admits stealing the goods but instructs their lawyer that the goods are over-valued by the police and are really worth only $110,000. The accused person’s lawyer wants to cross-examine the prosecution’s witness at a contested committal hearing about the method of valuation of the goods. If there is a strong likelihood that the contested committal hearing will result in the reduction of the value of the stolen goods to which the accused will plead guilty to, then VLA is likely to make a grant of assistance for a contested committal in order to attempt the early resolution of the matter.

Committal hearing will lead to a significant reduction in the length of any later trial or plea

If VLA makes a grant of legal assistance for a contested committal hearing on the ground that it will lead to a significant reduction in the length of any later trial or plea, then VLA must be satisfied that there is a strong likelihood of this occurring as a result of the contested committal. The reasons may include that:

cross-examination of a particular prosecution witness may lead to an agreed amended summary of facts to which the accused person is likely to plead to
limited cross-examination of difficult and complex prosecution evidence will clarify the issues in dispute thereby reducing the length of any subsequent trial
cross-examination may result in evidence being admitted on an agreed basis at a later trial

The accused person will be discharged at committal

VLA may make a grant of legal assistance for representation at a contested committal hearing if it is satisfied that the evidence does not support a conviction and there is a strong likelihood that accused person will be discharged at the contested committal.

Sexual offence cases

Some sexual offence matters may not satisfy the committal guideline. In limited cases, assistance may still be granted for preparation and one day appearance to enable the accused person to be represented for the cross-examination of the complainant. For any further extension beyond the one day appearance at the contested committal, assistance must be sought from VLA prior to the second day’s hearing. Aid beyond the first day will only be granted where the complainant’s evidence has extended beyond one day and a second day is required.

Example of a limited grant of legal assistance in a sexual offence case

A complainant alleges that the accused person has committed a sexual offence against her. The accused person denies the allegations. Consent is not an issue. Usually, the matter would not be eligible for a grant of assistance under this guideline. However, if the accused person has been given leave to cross-examine the complainant, VLA may make a limited grant of legal assistance of up to one day to ensure that counsel, and not the accused personally, conducts the cross-examination of the complainant.

Crimes (Sexual Offences) Act 2006 (Vic)

Where a person is charged (after 1 December 2006) with a sexual offence and the complainant is either a child or suffers a cognitive impairment, cross-examination of the complainant will take place in the County Court at a Special Hearing. An additional preparation fee and appearance fees are available for special hearings as set out in Table F – Lump sum fees for County Court and Supreme Court stage of an indictable crime matter.

Aid for committal hearing: complainant with a cognitive impairment

The fact of whether or not the complainant suffers from a cognitive impairment may be an issue in dispute. A lawyer may recommend aid for a contested committal to challenge the prosecution evidence that the complainant is cognitively impaired. A lawyer may seek assistance for an expert report and/or appearance in such circumstances.

Contested committals

A separate grant of assistance must be sought if a case proceeds to contested committal. This grant will provide fees to further prepare and attend at the committal hearing.

Although all efforts to resolve the matter at committal mention may have been exhausted, lawyers must address the committal guidelines before recommending assistance for contested committals. The standard for satisfying the requirements of the guidelines in contested committals is higher than for a committal mention and negotiation. Even if the guideline is met, the lawyer must show justification for the contested committal. This is because:

(in most cases) the complete brief will have been served on the defendant
issues will have been identified and possibly negotiated with the prosecution at the committal mention, thus giving a more complete picture of the prosecution case
the legal practitioner is expected to have obtained instructions from the accused regarding the evidence.

When recommending assistance for a contested committal, the lawyer's file must include:

the basis upon which it is submitted the matter would benefit from a contested committal
details of the prosecution evidence to be challenged at the committal and how this will benefit the defence case.

All requests for contested committals beyond four days will be assessed by VLA via the standard grants assessment process.

Available grants at the Magistrates’ Court stage of an indictable matter

Two separate grants are available at the Magistrates’ Court stage of an indictable matter:

General preparation, including committal mention and plea in the County Court or Supreme Court
Contested committal.

General preparation, including committal mention – Table E

General preparation per Table E is payable in all indictable matters. It includes obtaining instructions and advising the client about the defence, perusing the hand-up brief, negotiating with the prosecution, and preparing and filing the Form 32.

Where the committal guideline is satisfied, fees for completion of the brief analysis and case strategy, and committal mention (including negotiations) can be claimed.

This grant incorporates fees for pleas in the relevant jurisdiction. See Table E for plea fees in the Magistrates’ Court and Table F for plea fees in the County Court or Supreme Court.

Contested committal – Table E

This grant only contains additional preparation fees, appearance/s at the contested committal and plea in the Magistrates’ Court (if the plea is heard on a day other than the contested committal day).

Example

A defendant is charged with intentionally causing serious injury. The police case includes statements from many onlookers. However, witness statements do not clarify the issue of the defendant’s involvement. A committal mention would be justified in order to negotiate with the police to see whether they are willing to proceed on a lesser charge based on the evidence to hand. The lawyer should recommend a grant of legal assistance.

Changes introduced as part of the Major Criminal Cases Framework

Grace period for seeking an additional committal hearing day(s) (two business days)

An application for an extension seeking an additional committal hearing day(s) can be submitted within two business days of the last day that is covered under the contested committal grant of assistance. The application must be accompanied with reasons as to why the committal did not finalise within the estimated timeframe, what factors contributed to the committal running over the estimated timeframe and include the issues to be resolved in the additional day(s).

Lawyers do not need to address the retrospective component of the request if the extension application is submitted within the grace period (two business days).

Example where a lawyer does not need to seek retrospective assistance for an additional committal day(s)

A lawyer has a grant of assistance for two committal hearing days. The committal commences on Thursday. At the end of the second day, Friday, the committal is extended by another day due to the interpreter for the accused falling ill that afternoon. The committal continued and finalised on Monday. The lawyer has until Tuesday to submit an extension of assistance for an additional committal day.

Contested committals of four days and less

Lawyers can recommend assistance for committal hearings of up to four days.

Applications under this guideline for committal hearings of four days and less are normally within the Simplified Grants Process.

Contested committals exceeding four days

Lawyers cannot recommend assistance for committal hearings in excess of four days. These applications must be submitted for full assessment through the standard grants assessment process and is not subject to lawyer recommendation under the Simplified Grants Process.

Lawyers seeking a grant of assistance for committal hearing days beyond four days must submit an application via ATLAS within 14 days of the committal mention date. The application must include the following:

The Form 32, evidence of brief analysis and case strategy, prosecution summary of charges and witness list. These documents must be submitted via Submit correspondence – Committal docs
Details of all co-accused. Where the number of co-accused exceeds 10, details of the first name, middle name, surname, gender and date of birth of each co-accused beyond 10 must be provided via Submit correspondence – Committal docs
Completed Contested committal – exceeding four days worksheet
All charge sheets of matters where there are both State and Commonwealth charges. Charge sheets should be submitted via Submit correspondence – Committal docs.

Documentary requirements for all matters with a committal hearing grant

Prior to submitting an application for a committal hearing grant of assistance via ATLAS, lawyers must ensure the following documents are retained on file unless they are requested by VLA for assessment:

a reference to how the matter meets guideline 3.2
details of the charges
the lawyer's assessment of the strengths and weaknesses of the defence(s)
the lawyer's assessment of the strengths and weaknesses of the prosecution’s case
the instructions of the accused person on relevant issues in dispute
relevant proof of means.

Where the lawyer has not received a full copy of the prosecution brief, they must assess the case on the basis of the available materials. If any of the lawyer's decisions are based on limited information, then the extent of the limitation should also be noted on the file.