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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to obtain criminal legal aid within New Zealand
How to obtain criminal Legal Aid
If you've been charged with a criminal offence but can't afford to hire your own lawyer, you may qualify for criminal Legal Aid. Legal Aid pays for some or all of your lawyer's bills. But you may have to pay some or all of it back.
The Legal Aid scheme is governed by the LEGAL SERVICES ACT 2011. It's administered by the Legal Services Commissioner.
Civil Legal Aid is governed by different rules: see "How to obtain civil Legal Aid".
Applying for Legal Aid
Who can apply for criminal Legal Aid?
Anyone who's been charged with a criminal offence can apply for criminal Legal Aid. You don't have to wait until your first Court appearance to apply - if you can't afford your own lawyer it's better to apply as soon as you've been charged.
You don't have to be a New Zealand citizen or permanent resident to apply.
How do I apply for Legal Aid?
If you've already contacted a lawyer who's willing to represent you on Legal Aid, he or she will have copies of the application form and will help you fill them in.
If you haven't already seen a lawyer, go the public desk at your local District Court and ask to see the Duty Solicitor - this is a Government-paid lawyer who's on hand at the Court to advise defendants who don't have their own lawyer. The Duty Solicitor can give you the application form and will help you apply.
If there's no Duty Solicitor available, you can ask the District Court staff for the forms and for help in filling them in. You can also get help with the forms from a Friend at Court (volunteers who provide support for defendants at the Courts) or from your local Citizens Advice Bureau or Community Law Centre.
In the application you'll need to give details of your before-tax earnings for the last 12 months, and also give details of the value of your assets (your house, car and so on). If you have a partner, you'll also have to give details of their income and assets.
Further details of this process maybe seen on the Ministry of Justice website.
Can I apply at any stage of my Court case?
Yes. For example, it may be that you're able to afford your own lawyer in the early stages of your case (say, during pleading and a preliminary hearing), but that you will then need Legal Aid for any trial. If so, you can apply before the trial.
Can I choose which lawyer I get on Legal Aid?
You're usually able to choose your own lawyer when you get criminal Legal Aid. The Legal Aid form will ask you if you have a "preferred lawyer" you would like assigned to you, or whether you would instead like the Legal Services Agency to choose a lawyer.
Assuming your preferred lawyer is willing to represent you, he or she will have to -
- be available in the area where your case will be heard
- be available to appear in Court when needed, and
- have ability to work as a Legal Aid lawyer.
The decision to grant Legal Aid
Who decides whether to grant me Legal Aid?
The decision whether or not to grant your Legal Aid application is made by Legal Services Commissioner.
How will the Legal Services Commissioner decide whether to grant me Legal Aid?
They will consider two areas when deciding whether you qualify for Legal Aid -
- whether you can afford a lawyer (financial eligibility), and
- whether Legal Aid is justified in your case.
These are explained below.
The Legal Services Commissioner must be satisfied that you can't afford to hire your own lawyer, taking into account your gross (before-tax) income and your "disposable" assets.
Your disposable assets means the property you could sell to raise money, but doesn't include your equity in your home, your first car, your furniture and household possessions, and any tools of trade.
Whether Legal Aid is justified in your case
If the offence you're charged with carries a maximum prison term of six months or more, you'll automatically qualify for legal aid, so long as you're financially eligible.
If the penalty for the offence is less than that, you won't qualify for legal aid unless there is some particular factor to do with your case that justifies Legal Aid being granted. For example -
- if you have previous convictions, which may mean a prison term is more likely, or
- if your case is very complicated, or
- if you face a special barrier or disability, such as difficulties with reading or writing, or mental illness.
After Legal Aid is granted
Can I apply for Legal Aid more than once during the same case?
Yes. If more money is needed, your lawyer can apply for more under an amendment to the Legal Aid grant.
How does my lawyer get paid?
Your lawyer will send the bill to the Legal Services Agency, and LAS will pay your Legal Aid directly to your lawyer. You don't pay any money to the lawyer yourself, and your lawyer is not allowed to ask you to pay any money to him or her directly.
Repayments of Legal Aid
Will I have to repay any of my Legal Aid?
You may have to repay some or all of your legal aid, depending on â€“
- your before-tax income, and
- your total assets.
LAS uses the financial information you give on your application form to work out whether you have to pay anything.
When the Legal Services Commissioner assesses your assets for the purposes of making repayments, it considers all your assets. It doesn't make deductions for your equity in your home, your first car, your furniture and household possessions, and tools of trade. This is different from when the Legal Services Commissioner is considering your eligibility for Legal Aid (see above). For eligibility purposes the Legal Services Commissioner does make those deductions, so that it considers only what it calls your "disposable" assets.
If you're a beneficiary with no assets, it's unlikely you'll have to repay any of your legal aid.
How much will I have to repay?
When it tells you that you've been granted Legal Aid, theLegal Services Commissioner will also tell you the maximum amount you may have to repay. The actual amount that you eventually have to repay may be less than that amount.
The exact amount you must repay isn't calculated until the end of the your case, when the actual cost of your case is known. The amount will depend on your income and property and on how much your case costs.
How repayments are made
You may be required to repay Legal Aid in one or more of the following ways -“
- through regular instalments (either weekly, fortnightly or monthly)
- as a lump sum, either out of your savings or when you sell your house or other property.
If the Legal Services Commissioner decides you can afford to make regular payments, you will probably have to start them straight away. If you miss a payment, the Legal Services Commissioner can charge you interest.
"Charges" as security for your debt
If you own a house, car or other valuable property, and your debt to the Legal Services Commissioner is more than a certain amount, the Legal Services Commissioner will put a "charge" on the property, as security for the debt.
The charge means that if you sell the property, you must repay your debt to the Legal Services Commissioner out of the money you get from the sale. However, you can repay the debt at any time before then.
Challenging Legal Aid decisions
Getting the Legal Services Commissione to reconsider its decision
If the Legal Services Commissione refuses your Legal Aid application, you can get them to reconsider their decision. The person they assign to reconsider your case must be different from the person who made the original decision.
You can also get them to reconsider any other decision you're unhappy with - such as how much of your Legal Aid you have to repay.
Going to the Legal Legal Aid Tribunal
If the Legal Services Commissioner confirms its decision after reconsidering it, you can get the Legal Aid Tribunal to review the Legal Services Commissioner's decision. The Legal Aid Tribunal is independent of the Legal Services Commissioner.
You can also apply to Legal Aid Tribunal even if you haven't applied to the Legal Services Commissioner for a reconsideration.
Legal Aid is available to pay a lawyer to represent you when you apply to the Legal Aid Review Panel. You will have to make a separate application to the Legal Services Commissioner for this.
How do I apply to Legal Aid Tribunal?
You must apply to the Legal Aid Tribunal Convenor, and you must do this within 20 working days after the Legal Services Commissioner notifies you of their decision.
Details of this process can be seen on the Ministry of Justice website
How will Legal Aid Tribunal make its decision?
The Legal Aid Review Panel won't hold a hearing, but will instead decide your case "on the papers" - that is, by considering the written statements that you and the Legal Services Commissioner have put forward.
The Panel will consist of one, two or three people. At least one of them will be a lawyer.
Legal Aid Tribunal can overturn the Legal Services Commissioner's decision on the grounds that the decision was -
- clearly unreasonable, or
- wrong in law (for example, the Legal Services Commissioner didn't follow the rules in the LEGAL SERVICES ACT 2011).
As well as changing or reversing the Legal Services Commissioner's decision, Legal Aid Tribunal can order the Legal Services Commissioner to reconsider its decision and can set out the factors the Legal Services Commissioner must take into account when it does this.
Can I appeal Legal Aid Tribunals decision?
If you're not happy with Legal Aid Tribunal's decision, you can appeal it to the High Court, but only if you think Legal Aid Tribunal got the law wrong.
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