2.4 Appeals and Reviews

2.4.1.1 - Appeals to the District Court

Legal aid is available for appeals from the Local Court to the District Court sitting in its criminal jurisdiction.

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test,
  • it is a type of matter for which legal aid is available in the Local Court proceedings,
  • Legal Aid NSW is satisfied that it is an appropriate expenditure of limited public funds (Crime guideline 2.8), and
  • if it is a severity appeal, it is an appeal against a term of imprisonment  (Crime guideline 2.7) or Legal Aid NSW is satisfied that there are exceptional circumstances.

Legal Aid NSW officers authorised under the Delegation Instrument clause 9 can determine applications for legal aid in these matters.

Note: Exceptional circumstances would include where the applicant is an Aboriginal woman.

2.4.1.2 -Appeals to the Supreme Court

Legal aid is available for appeals from decisions of Magistrates in the Local Court to the Supreme Court.

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test,
  • Legal Aid NSW is satisfied that it is an appropriate expenditure of limited public funds (Crime guideline 2.8), and
  • the matter is a type of matter for which legal aid is available in the Local Court proceedings (see Crime policy 2.2.3- Local Court matters).

Legal Aid NSW officers authorised under the Delegation Instrument clause 9 can determine applications for legal aid in these matters.

2.4.2.1 - Appeals to the NSW Court of Criminal Appeal and the High Court of Australia

Legal aid is available for appeals to the NSW Court of Criminal Appeal and the High Court of Australia.

To be eligible for legal aid the applicant must satisfy:

See Costs and fees guideline 6.1.3 on costs for transcripts in indictable appeals.

Legal Aid NSW officers authorised under the Delegation Instrument clause 9 can determine applications for legal aid in these matters

Note: See Crime guideline 2.1.1 for guidance on considering whether there are reasonable prospects of success for a conviction appeal to the Court of Criminal Appeal.

Note: See Crime guideline 2.1.2 for guidance on considering whether the applicant satisfies the Merit Test for responding to a Crown sentence appeal to the Court of Criminal Appeal.

2.4.2.2 -Appeals under s5F of the Criminal Appeal Act 1912 (NSW)

Legal aid is available for an appeal under s5F of the Criminal Appeal Act 1912 (NSW).

To be eligible for legal aid the applicant must satisfy:

  • the Means Test
  • the Merit Test
  • Legal Aid NSW is satisfied that it is an appropriate expenditure of limited legal aid funds (Crime guideline 2.8), and
  • there is a significant issue of public interest and the circumstances are sufficiently exceptional to justify a grant of aid.

Legal Aid NSW officers authorised under the Delegation Instrument clause 9 can determine applications for legal aid in these matters.

Note: See Crime guideline 2.1.2 for guidance on considering whether the applicant satisfies the Merit Test for responding to an appeal to the NSW Court of Criminal Appeal.

2.4.2.3 - Appeals following a retrial

Legal aid is available for an appeal following a retrial.

To be eligible for legal aid the applicant must satisfy:

 2.4.3.1 - Initial applications under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) 

Legal aid is available for an initial application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) which includes:

  • petitions to the Governor for a review of a conviction or sentence,
  • applications to the Supreme Court for an inquiry into a conviction or sentence, and
  • applications to an appropriate Review Panel established to review a conviction or sentence.

To be eligible for legal aid the applicant must satisfy:

Note: The Chief Executive Officer of Legal Aid NSW has not delegated the authority to make determinations under s 34 of the Legal Aid Commission Act 1979 (NSW) in relation to matters under Part 7 of the Crimes (Review and Appeal) Act 2007 (NSW).

2.4.3.2 - Proceedings in the NSW Court of Criminal Appeal under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

Legal aid is available for proceedings under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for:

  • a matter that is referred by the Minister or the Supreme Court to be dealt with as an appeal, or
  • if a conviction is to be quashed following a free pardon or an inquiry.

To be eligible for legal aid the applicant must satisfy:

Note: The Chief Executive Officer of Legal Aid NSW has not delegated the authority to make determinations under s 34 of the Legal Aid Commission Act 1979 (NSW) in relation to matters under Part 7 of the Crimes (Review and Appeal) Act 2007 (NSW).

2.4.3.3 - Inquiries under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

Legal aid is available for an inquiry conducted by a judicial officer under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW).

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test and
  • special supplementary funding is made available to enable Legal Aid NSW to provide legal assistance.

Note: The Chief Executive Officer of Legal Aid NSW has not delegated the authority to make determinations under s 34 of the Legal Aid Commission Act 1979(NSW) in relation to matters under Part 7 of the Crimes (Review and Appeal) Act 2001 (NSW).

2.4.3.4 - Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

Legal aid is not available for proceedings relating to summary offences where Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW) applies.

Legal aid is available to a person who has been acquitted of an offence and who is the subject of an application made by the Director of Public Prosecutions under Part 8 of the Crimes (Appeal and Review) Act 2001 (NSW).

To be eligible for legal aid the applicant must satisfy: