Cases involving an issue of consent
Cases where there is an issue of consent may involve, but are not limited to, allegations of sexual assault. Lack of consent is an issue of fact which the prosecution must prove.
If the accused person has instructed their legal practitioner that the consent of a complainant to a sexual act is an issue, then Victoria Legal Aid (VLA) may make a grant of legal assistance for committal proceedings under this guideline.
The issue of consent may also be relevant in other cases. For example, if someone has been charged with theft, their defence may be that the deprived owner consented to the removal of the goods. However, whether the issue of consent is ‘real’ depends on both:
- the strength of the accused person’s instructions in light of the evidence
- whether there are other facts supporting the defence.
Cases involving an issue of identification
In cases where identification is in issue, the issue to be tested must be ‘real’. That is, proving, disproving or challenging identity will have a strong impact on the final outcome of the matter ie. finding of guilt or acquittal of the accused person.
Examples of cases where the issue of identification is not ‘real’
Example 1: A person is charged with assault. Four primary witnesses clearly identify the accused. One secondary witness identifies the accused more weakly. The prosecution is likely to rely on the four primary witnesses in establishing identity.
If there are no significant discrepancies in witnesses’ statements or some other compelling factor, then in most cases there would be little benefit in seeking a contested committal to:
- cross-examine the primary witnesses
- cross-examine the secondary witness.
VLA will not make a grant of legal assistance for representation at a committal in such circumstances.
Example 2: The accused person is known to the alleged victim (by name or by some other means). However, the accused person denies committing the offence.
This is not necessarily an issue of identity. VLA will not make a grant of legal assistance for representation at a committal in such circumstances.
Example of a case where the issue of identification is ‘real’
A person is alleged to have assaulted the alleged victim at night. The accused person instructs their legal practitioner that although they were in the vicinity of where the alleged assault took place, they did not assault the alleged victim. The accused person instructed their legal practitioner that on the night of the alleged assault, the street lighting was poor and that it was raining. In addition, the sole witness was some 50 metres away from where the alleged assault took place. The identification evidence of the witness is crucial in proving the case against the accused person.
The accused person’s legal practitioner seeks to cross-examine the witness to test the cogency of their evidence about the identity of the person who committed the assault. This would justify a contested committal.
VLA is likely to make a grant of legal assistance for representation at a committal in such circumstances.
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, practitioners 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 practitioner 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 practitioner’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; and
- Contested committal
General preparation, including committal mention – Table E
General preparation per 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.
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).
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.
Practitioners 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 committal day/s
A practitioner 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 practitioner has until Tuesday to submit an extension of assistance for an additional committal day.
Contested Committals of four days and less
Practitioners 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
Practitioners cannot recommend assistance for committal hearings exceeding four days. These applications must be submitted for full assessment through the standard grants assessment process and is not subject to practitioner recommendation under the Simplified Grants Process.
Practitioners 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; and
- All charge sheets for 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, practitioners must ensure the following documents are retained on file:
- a reference to how the matter meets guideline 3.1
- details of the charges
- the instructions of the accused person on relevant issues in dispute
- any substantiating facts
- a reference to the significance of the issues of consent and/or identity and how it will impact the final outcome of the matter ie. finding of guilt or acquittal of the accused person.
Where the practitioner 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 practitioner's decisions are based on limited information, then the extent of the limitation should also be noted on the file.
Reviewed 18 February 2022