Notes on trials in the County or Supreme courts

Glossary

‘Major criminal trial’ is a criminal trial that is likely to last more than 15 days.

‘Non-preferred barrister’ means a barrister who is not on the Criminal Trial Preferred Barrister List.

‘Preferred barrister’ means a barrister who is on the Criminal Trial Preferred Barrister List.

‘Standard criminal trial’ is a criminal trial that is likely to last 15 days or less.

‘Compelling reasons’ for not hearing charges in the Magistrates’ Court

If a charge could normally be heard and disposed of in the Magistrates’ Court, then VLA may grant legal assistance for a criminal trial in the County Court or in the Supreme Court only if there are compelling reasons to do so.

There is no fixed definition of ‘compelling reasons’. However, one or more of the following factors may be sufficient to establish ‘compelling reasons’:

• the degree of seriousness of the offence
• the complexity of the proposed defence
• any unsettled or untested principles to be addressed
• the potential that the court may order the accused person to pay civil damages if the court finds the accused person to be criminally liable.

VLA will assess whether the reasons justify making a grant of legal assistance for representation at a trial in the County Court or in the Supreme Court.

If the lawyer believes there are compelling reasons for an accused person to refuse to accept the jurisdiction of the Magistrates’ Court, then the lawyer must give VLA a written statement of those reasons. This rule applies regardless of whether VLA processes the application for a grant of legal assistance through the simplified grants assessment process or the standard grants assessment process.

After VLA receives the information from the lawyer, then VLA will assess whether, in all the circumstances, a grant of legal assistance should be made for a trial in the County Court or in the Supreme Court.

The interests of justice and the extent of legal representation in trials

When considering whether to make a grant of legal assistance for a criminal law trial, VLA must consider a number matters, including:

• whether it is in the interests of justice to aid the matter, having regard to the nature and extent of assistance sought by the person
• the merits of the application for a grant of legal assistance.

The ‘interests of justice’ is not a closed category.

The merits of the application will be considered when determining the extent of legal representation to be provided.

VLA may decide to limit any grant of legal assistance to:

• a plea of guilty
• assistance to follow a specific defence argument or arguments
• any other form of assistance considered appropriate in the circumstances.

County Court and Supreme Court trials

Before making a recommendation to aid a trial, a solicitor will have in place a grant for general preparation per Table E.

Guilty pleas

A grant for general preparation (Table E) entitles a lawyer to fees in Table F (County/Supreme Court stage) listed a 'general' and 'plea' fees. No extension of assistance is required to complete a matter after committal stage by way of plea. Appearance fees in Table F include all conferences.

An extension per Table F is only required if the matter is listed for special hearing or trial.

Trials

Guideline 4 of the State Criminal Law Guidelines outlines the circumstances in which assistance may be recommended for criminal trials in the County or Supreme Court. Where assistance is granted for trial, fees per Table F apply. Appearance fees in Table F include all conferences.

Basis of a recommendation for assistance

A recommendation to aid a trial must contain a clear file note as to the following:

• the client’s instructions
• the proposed plea. If the matter is proceeding to trial, the lawyer must file note the reasons that a plea of guilty is not appropriate
• A brief statement as to the evidence to be relied upon. Where a statement, or piece of evidence, is determinative of a particular issue, that piece of evidence must be easily identifiable, to enable compliance checks by VLA to be conducted in an effective manner.

The file should also contain:

• a copy of the prosecution brief, with relevant parts of evidence that are relied on to found the defence clearly identified
• a copy of the proof of evidence of client, and written instructions as to plea
• clear notes as to the dates, and nature, of Court attendances.

VLA encourages lawyers to have on file a Brief Analysis and Case Strategy of the matter. Download our Brief analysis and case strategy document.

Instructing/co-counsel fees

In order to claim the new fees under the instructing/co-counsel guideline, lawyers must:

• record and retain on file details of how the instructor or co-counsel meets the requirements of this guideline
• record and retain on file details of the dates and times of the attendance at court using the instructing/co-counsel worksheet and attendance record or an equivalent record to capture these details.

VLA will not accept a lawyer engaging a third party to instruct at a trial where that third party does not meet requirements a) or b) of the guideline. If a third party is briefed to instruct at a trial contrary to the above guideline, VLA will not pay the instructing fees of the third party briefed.

Any third party engaged by a lawyer in accordance with the guideline is entitled to, and should claim the instructing fee available in Table F of our fee schedule. A lawyer who engages a third party must not retain any portion of the fees payable for this work, even if by agreement between lawyer and the third party.

Lawyers must only brief co-counsel from the Criminal Trial Preferred Barrister List, unless an exception is granted in advance.

Rules relating to instructing fees

The following rules apply when claiming for instructing at court:

• Lawyers are required to keep a record of their instructing attendance.
• Instructing fees are payable by the hour to a maximum of five hours per day for in-court instructing as and when required in a criminal trial.
• Instructing is paid on a per hour basis so that once instructing is justified within an hour, the hour is claimable. VLA does not require lawyers to aggregate non-instructing times to an hour over the course of a day or a trial.
• Instructing fees cover 'in-court' instructing only. Instructing will be justified at key points in a criminal trial, for example, during jury selection or evidence of key witnesses. Instructing will not always be justified in a criminal trial, for example, during the playing of lengthy pre-recorded evidence or the evidence of non-controversial witnesses.
• VLA will not pay for instructing where for any continuous period in excess of one hour the court does not sit, hears non-controversial evidence or plays pre-recorded evidence.
• VLA will not allow instructing fees for practitioners awaiting verdict of the jury, or for the return of a verdict, however, if a question is asked by the jury, or the matter returns to court for any other reason, then lawyers may claim for instructing on a per hour basis.
• For matters in the list not reached, VLA will only allow an hour for each attendance before a Judge (eg. morning and/or afternoon – up to 2 hours maximum per day).
• Where junior counsel is briefed in accordance with the instructing/co-counsel guideline, VLA accepts that junior counsel are usually required to attend court for the duration of a criminal trial.
• Lawyers must only brief co-counsel from the Criminal Trial Preferred Barrister List (CTPBL), unless an exception is granted in advance.
• Lawyers seeking to act as Solicitor Advocates in a trial are expected to have had direct involvement in the preparation and conduct of the file as the solicitor.
• If a Solicitor Advocate appears as co-counsel, VLA will pay the instructing fees to the Solicitor Advocate, subject to the instructing criteria.
• If a Solicitor Advocate wishes to have an instructing solicitor, the instructing guideline must be satisfied.
• These rules apply if a lawyer instructs at a circuit town, or is on circuit.
• The trial preparation fee in Table F covers the various tasks of a lawyer that are unconnected with their attendance at court to instruct. These tasks include, for example, conferences with clients or counsel or making arrangements for witness attendance. Instructing fees cannot be claimed for these matters.

Exceptions to briefing a preferred barrister

Applications for an exception to briefing a preferred barrister for a standard criminal trial may only be made by the standard grants assessment process.

Barristers themselves are not permitted to apply for an exception.

Lawyers seeking a grant of legal assistance for a criminal trial and applying for an exception to brief a non-preferred barrister should submit an application via ATLAS with the following information for assessment:

• the non-preferred barrister’s full name
• the criminal trial details (including the trial date, estimated trial length that has been agreed with the prosecution and which has been communicated to the court, charges and nature of the defence)
• reasons why the non-preferred barrister is requested and the benefits of briefing that barrister, including the availability of preferred barristers and reasons why they are not suitable.

Lawyers with a current grant of assistance for a criminal trial who wishes to apply for an exception to briefing a preferred barrister should submit correspondence with the above information.

When assessing whether to approve an application for an exception, VLA may take the following into account:

• the benefits of briefing the non-preferred barrister against the benefits of briefing available preferred barristers
• reasons why available preferred barristers are not suitable to be briefed
• whether the non-preferred barrister otherwise meets the entry requirements
• reasons why a non-preferred barrister is requested
• whether the specified non-preferred barrister has applied for membership on the Criminal Trial Preferred Barrister List and if not the reasons for not applying
• whether the non-preferred barrister has been refused entry onto the Criminal Trial Preferred Barrister List
• the non-preferred barrister’s curriculum vitae which addresses their criminal trial advocacy experience.

In assessing the benefits of briefing a non-preferred barrister against the benefits of briefing available preferred barristers, the following are relevant considerations:

• the Criminal Trial Preferred Barrister List aims to facilitate the development of competent junior barristers
• attempts should be made to maintain continuity of a barrister/s for the entire matter by briefing them at the earliest opportunity for each stage of the matter and seeking an exception to briefing from the list as early as possible
• if a non-preferred barrister appeared at the committal hearing where preferred barristers were available, this will not in isolation be considered a sufficient reason to brief a non-preferred barrister
• late attempts to brief a barrister will not be considered favourably.

Examples where Assignments may grant an exception for a lawyer to brief a non-preferred barrister

• The client has requested an indigenous barrister. All indigenous Preferred Barristers are not available for the trial. The non-preferred barrister is Indigenous and represented the client at the committal proceedings. The non-preferred barrister has conducted less than a couple of criminal trials but has practised exclusively in criminal law for five or more years and otherwise meets entry requirements 3, 4 and the criminal trial advocacy competencies. The Non-preferred barrister’s curriculum vitae also demonstrates extensive appearances in committal proceedings.
• The non-preferred barrister appeared in the committal proceedings and has a long-established relationship with the client. The trial is not complex as there is a discrete issue in dispute. This matter would be appropriate for a competent Non-Preferred Barrister who also satisfies the entry requirements and criminal trial advocacy competencies for membership on the Criminal Trial Preferred Barrister List.

Solicitor advocates

Lawyers may appear as solicitor advocates for a standard criminal trial or a major criminal trial. Solicitor advocates are not required to be on the Criminal Trial Preferred Barrister List to appear in criminal trials.

Lawyers may only appear in their own matter/s as a solicitor advocate or brief a solicitor advocate in their own firm who is a Level 1 Panel Certifier on the Indictable Crime Panel.

Documentary requirements

Applications under this guideline are normally only within the simplified grants assessment process. An exception to this is trials with an estimated duration of more than 60 days (see Trials which will likely take longer than 60 days).

The lawyer may recommend only a maximum of 60 days (12 weeks). The lawyer must not recommend more days than it is reasonable to anticipate. If the trial takes longer than the lawyer originally estimated, then the lawyer may apply for, and recommend that, VLA provide further assistance. See Applying for a grant of legal assistance for information about obtaining further assistance and additional assistance.

Trials which will likely take 60 days or less

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 4
• the accused person’s instructions
• the accused person’s proposed plea of ‘not guilty’ and the reasons why a ‘guilty’ plea is not appropriate
• a brief statement of the evidence to be relied on. If a statement or a piece of evidence determines a particular issue, then the lawyer must clearly identify that statement or piece of evidence so that VLA may effectively carry out its compliance check
• a copy of the prosecution brief, with the relevant parts of the evidence relied upon as the basis of the defence clearly identified
• a copy of the accused person’s proof of evidence
• clear notes about the dates and nature of court attendances
• a copy of the completed post-committal negotiation checklist
• relevant proof of means.

Lawyers are also encouraged to complete a criminal trials worksheet for their file.

The lawyer must also attach a recommendation about the number of days the trial will take to the application for assistance for a criminal trial.

Trials that will likely take longer than 60 days

If it is clear from the beginning that a trial will take longer than 60 days (12 weeks), then the lawyer cannot recommend that VLA make a grant of legal assistance. Instead, the lawyer must submit a request for VLA to assess under the standard grants assessment process.

Lawyers seeking a grant of assistance under this guideline should submit an application via ATLAS. In the application, the lawyer must include details about:

• the material which the instructing lawyer and/or counsel must peruse in preparing for the trial
• any disbursements to be incurred
• the prosecution witness list
• the number and the names of any co-accused people
• the anticipated number of days the trial will take
• whether full instructing is necessary and, if so, the reasons why
• any other factors which may affect the length of the trial.

VLA may also ask the lawyer to provide further details before approving funding.

What is included as part of trial days

The number of trial days includes a voir dire, pre-trial examinations under sections 198A and 198B of the Criminal Procedure Act 2009 (Vic) (excluding fast-track homicide matters), pre-trial argument and special hearings under the Crimes (Sexual Offences) Act 2006 (Vic) and Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

The number of trial days does not include days where an Appeal Costs Fund Certificate has been granted.

A preferred barrister must be briefed for all of the above hearings unless an exception is granted in advance. Exceptions will only be granted for cases deemed to be a Major Criminal Case in exceptional circumstances.

Where a trial resolves to a plea before the trial date

VLA may allow lawyers and counsel to claim trial fees where a matter resolves to a plea before the trial date, subject to the following:

• the matter resolves after the trial date set
• the depositions have been received
• a Defence Response has been filed.

Examples of when trial fees are payable

1. The matter settles at the final directions hearing and is adjourned for a plea hearing

Fees payable:

• trial brief fee and conference fee instead of final directions hearing fee
• trial preparation fee
• plea hearing fee applicable to trials on the plea day as per Table F.

2. If the matter settles at the final directions hearing with all charges withdrawn

Fees payable:

• trial brief fee and conference fee instead of final directions hearing fee
• trial preparation fee

Additional preparation or reading fees for counsel

Under the simplified grants process, lawyers may recommend up to $3000 in further preparation fees by submitting a completed preparation fees worksheet. Further preparation fees are only available for trial counsel and they are not available for junior counsel.

See Table ZZ – Hourly rates for counsel’s preparation fees and conferences in criminal trials for more information about preparation fees.

Preparation or reading fees up to $3,000

Preparation/reading fees for counsel or solicitor advocate up to $3,000 are subject to a lawyer's recommendation.

VLA will take into account non-sitting days for which counsel will be paid a fee.

Before making a recommendation, a lawyer must be satisfied that the reading is essential and exceeds 8 hours based on a realistic estimate of the number of pages contained in the Hand Up Brief (HUB). Specifically, a lawyer must consider:

• the different rates that apply for reading and scanning, respectively
• discounts applicable to scanning beyond 10 hours
• any assistance previously provided for preparation
• whether the preparation fees will exceed the Commonwealth fee ceiling.

Where full preparation fees were provided for the committal, VLA will not normally provide full preparation again for the trial. Where there is a significant passage of time between the committal and the trial (usually more than one year), VLA will provide further preparation fees for the trial.

Where a preparation fee has been allowed at the committal stage, and counsel who appeared at the committal stays briefed in the matter when it goes to the County or Supreme Courts, counsel can claim an uplift fee for the reading already done at committal when the matter reaches the plea or trial. The uplift fee is the difference between the hourly rate in the Magistrates’ Court and the rate in the higher Court.

If different counsel is briefed for the committal and the trial, there must be compelling reasons why a change in counsel is necessary. Reasons must be documented on the lawyer's file. Where new counsel is necessary, VLA will provide a second grant of aid for preparation.

Where a lawyer seeks additional preparation fees for material not contained in the HUB, reasons why the material is relevant to the case must be documented on the file.

Expert reports will always be considered necessary and should be read at the rate of 90 pages per hour.

Where aid is sought for preparation in relation to the transcripts of interviews or similar, aid will not be provided to listen to the recordings of these transcripts as well.

Lawyers must use the worksheet provided and retain a copy on their file for compliance purposes. The completed and signed worksheet must be forwarded to VLA to obtain the appropriate extension of assistance.

The file should also contain:

• a copy of the HUB and any other documentation to be read or scanned
• clear notes as reasons for the recommendation.

The information provided in the checklist and its accuracy will be checked by a compliance officer as part of a compliance check.

Preparation fees anticipated to exceed $3,000

Preparation or reading fees that exceed $3,000 cannot be the subject of a lawyer's recommendation for assistance. Any requests relating to this must be forwarded to VLA for assessment and must include:

• the volume of material to be read
• a breakdown of the nature of the material, and whether such material should be perused rather than scanned (and the reasons for the distinction)
• the completed preparation fee worksheet
• the prosecution summary
• the witness list
• a list of the co-accused
• the client’s alleged role in the offence (if applicable).

If this information is not included, VLA cannot consider the request for additional preparation.

VLA may request additional information if not satisfied as to the necessity of the additional preparation fees. The information provided in the checklist and its accuracy will be checked by a compliance officer as part of a compliance check.

VLA will take into account non-sitting days for which counsel will be paid a fee. VLA may apply its discretion to reduce additional preparation fees in matters where the additional preparation sought is exceptionally high.

Additional preparation or reading fees for solicitor

Assistance for additional reading fees for solicitors cannot be subject of a lawyer's recommendation for assistance. Lawyers must complete the worksheet and submit the request for VLA assessment.

Commonwealth matters

The State guidelines for criminal cases apply to Commonwealth matters.

Cases in the list – not reached

VLA will pay the appropriate brief fee in circumstances where a matter is listed for trial but not reached and an appeal cost certificate has been granted.

Lawyers therefore need to ensure that appeal cost certificates are sought where applicable. Counsel briefed must be instructed on that basis.

Trial severance

Where aid is granted for a trial involving multiple complainants or otherwise and on application the trial is severed into two or more trials no additional fees will be payable save and except:

Counsel/solicitor advocate

A further brief fee and subsequent day fees for each trial.

In the event that a solicitor represents more than 3 defendants, the matter should be referred for the fixing of special fees.

Application for discontinuance of proceedings

VLA will aid an application for discontinuance of proceedings when counsel (usually) or the lawyer forms the view that there is a reasonable prospect that if a formal submission is made to the prosecution, an election will be taken not to proceed with the charges.

The fee payable is set out in Table F.

Lawyers are not required to obtain an extension of assistance if they are in receipt of either of the following grants of assistance:

• Magistrates’ Court stage (General preparation Table E)
• County & Supreme Court stage (Table F).

Breach of Serious Offenders Act 2018 order proceeding via a trial

These matters must be submitted to VLA for full assessment through the standard grants assessment process and are not subject to recommendation under the SGP. VLA determines whether these matters are approved for trial funding.

Section 32C applications – confidential communications

In criminal proceedings for a sexual offence, the defence may seek to access the complainant’s medical and counselling records, such as CASA records. Section 32C of the Evidence (Miscellaneous Provisions) Act 1958 requires a party to seek leave of the court before they can issue a subpoena to compel the production of confidential communications. These provisions apply to proceedings for a sexual offence in all courts, including committal proceedings.

VLA expects that seeking leave to issue the subpoena(s) would be incorporated in trial preparation and will usually be heard as part of another court event (such as first directions hearing etc). VLA will only consider payment for the contested hearing before the magistrate or judge to determine the issue of confidential communications. It is confirmed that, subject to a specific grant, the following fees for the hearing of these applications are as follows:

• Magistrate’s Court – fee equivalent to daily appearance fee
• County Court – fee equivalent to subsequent plea hearing fee
• Supreme Court – fee equivalent to subsequent plea hearing fee.

Any application must be submitted to VLA for full assessment through the standard Grants process and is not subject to recommendation under the SGP.

Changes introduced as part of the Major Criminal Cases Framework

Grace period for seeking an additional trial day/s (two business days)

An application for an extension seeking additional trial hearing days can be submitted within two business days of the last day that is covered under the trial grant of assistance. The application must be accompanied with reasons as to why the trial did not finalise within the estimated timeframe, what factors contributed to the trial 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 practitioner does not need to seek retrospective assistance for an additional trial day/s

A lawyer has a grant of assistance for five trial days. The trial commences on a Monday. At the end of the fifth day, Friday, the trial is extended by another two days due to the length of time taken to play pre-recorded evidence. The trial continued and finalised the following Tuesday. The lawyer has until Tuesday to submit an extension of assistance for additional trial days.

Trials which will likely take longer than 15 days

This includes severed trials less than 15 days that collectively equate to more than 15 days.

Documents to submit within 28 days of the Initial Directions Hearing

Lawyers seeking a grant of assistance for trial days which will likely take longer than 15 days must submit an application via ATLAS within 28 days of the Initial Directions Hearing. The application must include the following:

• Committal Report and trial preparation plan (prepared by counsel who appeared at the Committal Mention or Committal). This document should be submitted via Submit correspondence – Trial documentation
• Where the matter proceeded by way of contested committal, the Form 32, evidence of brief analysis and case strategy, prosecution summary and witness list (only if they have not been provided at the committal stage stage of proceedings). These documents should be submitted via Submit correspondence – Committal docs
• Where the matter proceeded by way of straight hand up brief, the prosecution summary and brief analysis and case strategy (only if they have not been provided at the committal stage of proceedings). These documents should be submitted via Submit correspondence – Committal docs
• Details of all co-accused (unless this has already been provided at the committal stage of proceedings). The trial application form allows a maximum of 10 co-accused details to be recorded. 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 the first 10 must be provided via Submit correspondence – Committal docs
• All charge sheets where there are both State and Commonwealth charges (unless they have already been provided at the committal stage of proceedings). Charge sheets should be submitted via Submit Correspondence –Trial documentation.

Documents to submit 14 days prior to the Final Directions Hearing

Lawyers with a grant of assistance for trial must provide the following at least 14 days prior to the Final Directions Hearing:

• Crown opening
• Draft trial preparation plan (including any updated plans).

Where applicable, lawyers must also provide the following at least 14 days prior to the Final Directions Hearing:

• Notice of Pre-trial Admissions
• Notice of intention to adduce Hearsay Evidence
• Notice of intention to adduce Tendency Evidence
• Notice of intention to adduce Coincidence Evidence.

These documents should be submitted via Submit correspondence – Trial documentation.

Documents to submit seven days prior to the Final Directions Hearing

Lawyers with a grant of assistance for trial must provide the Defence Response (which includes all matters addressed in the County Court Criminal Division Practice Note 6.4) at least seven days prior to the final directions hearing.

This document should be submitted via Submit correspondence – Trial documentation.

Documents to submit within seven days of receipt of Notice of Additional Evidence

Lawyers with a grant of assistance for trial must provide any Notice of Additional Evidence by the prosecution within seven days of receipt of the notice if it is likely to extend the duration of the trial or materially alter the direction of the trial. An updated trial preparation plan must also be submitted at the same time.

These documents should be submitted via Submit correspondence – Trial documentation.

Minimum requirements for certain documents provided to VLA

Lawyers must ensure the information required in the following Criminal Law quality tools is addressed when it is submitted to VLA. Private practitioners are not required to use the following documents as long as the information required is submitted:

• Brief Analysis and Case Strategy
• Committal Report and Trial Preparation Plan
• Brief and Handover to counsel.