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Communtity Law Manual | Legal Aid & other legal help | Legal Aid: A criminal lawyer for an ongoing case

Criminal cases: Legal Aid and other legal help

Legal Aid: A criminal lawyer for an ongoing case

Overview of criminal Legal Aid

Criminal Legal Aid is where the government pays the cost of hiring a lawyer for people in criminal court cases who can’t afford to pay a lawyer themselves.

New Zealand Bill of Rights Act 1990, s 24(f)

Note: When you’ve been charged with a crime, you have the right under New Zealand’s Bill of Rights to get free legal help if you can’t afford a lawyer and the “interests of justice” require this. The Legal Aid laws in the Legal Services Act set out the specific rules about when you will or won’t be given Legal Aid.

Legal Services Act 2011, s 6

You may be able to get criminal Legal Aid if you’ve been charged with or convicted of a criminal offence. But it’s usually not granted for less serious cases (see below, “Qualifying for criminal Legal Aid: Relevant factors”).

Here are some examples of criminal charges for which Legal Aid may be available:

  • assault
  • drug possession
  • theft
  • burglary
  • fraud
  • drunk-driving
  • arson
  • having an offensive weapon
  • receiving stolen goods
  • threatening to kill
  • rape and other sexual offences
  • murder or manslaughter

Criminal Legal Aid is also available for some Parole Board hearings, or to appeal a Parole Board decision to the High Court.

You don’t have to be a New Zealand citizen, or be living in New Zealand permanently, to qualify for criminal Legal Aid.

Note: Criminal Legal Aid doesn’t cover Youth Court cases – instead the Youth Court will appoint a free lawyer called a “Youth Advocate” to represent you if you don’t have your own lawyer. For more information on going through Youth Court, visit the Youth Justice website, www.youthlaw.co.nz

Criminal Legal Aid is available for all the different stages of a criminal case, including:

  • for legal advice at the start about whether to plead guilty or not guilty
  • for bail issues
  • to defend the charges against you in a trial
  • to prepare a “plea in mitigation” – this is where your lawyer tells the judge about any special circumstances that should be taken into account when you’re sentenced (see “Sentencing” in the chapter “The criminal courts”)
  • to appeal against a conviction (the decision to find you guilty)
  • to appeal against a sentence (for example, if you’ve been sentenced to jail and you think it should have been a community-based sentence like supervision).

Applying for criminal Legal Aid

You should apply as soon as you’ve been charged with a crime or been sent a summons to appear in court.

You usually apply through a Duty Lawyer at the court, or the criminal Registrar at the court. You can also contact the Legal Aid office for help directly. The Legal Aid Services contact details can be found on the Ministry of Justice website or you can call 0800 253 425.

You can also get help filling out the Legal Aid application form at a Community Law Centre or Citizens Advice Bureau, or from volunteers at the court if they’re available.

The decision is made by Legal Aid Services at the Ministry of Justice, who work out of different regional Legal Aid offices. They work for the Legal Services Commissioner, who has the decision-making power under the Legal Aid laws and delegates it to the Legal Aid Services staff.

The Legal Services Commissioner works for the Ministry of Justice, but the Commissioner and the Legal Aid Services staff are legally required to make Legal Aid decisions independently of the Ministry and the government.

Legal Services Act 2011, s 26

You’ll be sent a letter telling you whether or not you’ve been granted Legal Aid. The letter may also tell you when you’ll next have to appear in court.

If you’ve been granted Legal Aid, you’ll also be told whether you have to begin paying the Legal Aid grant back.

You’ll also be told which lawyer has been assigned to you. You should contact this lawyer as soon as possible.

Legal Services Act 2011, ss 17, 51, 52

Yes. You can start by asking Legal Aid Services to reconsider their decision. If that doesn’t work, you can appeal to the Legal Aid Tribunal. (See “Challenging a Legal Aid decision” below.)

Qualifying for criminal Legal Aid: Relevant factors

Legal Services Act 2011, s 8

Whether you’re granted Legal Aid will depend on two key sets of factors:

  • Whether you can afford a lawyer – Legal Aid Services will look at your income and your assets to work this out.
  • The charges and other factors about your case – They’ll look at how serious the charges against you are and, if it’s a less serious case, whether there are special factors that justify granting you Legal Aid. For more details, see below “Seriousness of the offence” and “Special factors that can justify Legal Aid for minor offences”.

Legal Services Act 2011, s 8

You’ll only get criminal Legal Aid if you have “insufficient means” – not enough money and property – to pay for a lawyer yourself. Legal Aid Services will take into account how much you earn and how much property you own (your assets, or “disposable capital”).

Legal Services Act 2011, s 8(3), Schedule 1; Legal Services Regulations 2011, reg 7

  • Your income – Usually your income is your gross (before tax) income for the year. However, some welfare benefits aren’t counted as income.
  • Your assets (disposable capital) – This is the value of your money and property, minus any debts you owe and not counting:
    • your equity in your home, up to $80,000 (your equity is the market value of your home minus how much you owe on your mortgage)
    • your car, furniture, household appliances, and clothing, and any tools and equipment you use as part of making a living (“tools of trade”)
    • any “contingent liabilities” that could come into effect within the next six months (for example, if you’ve guaranteed a loan for someone and you may have to repay their loan within the next six months).

Your partner’s finances will also be taken into account, unless you’re living apart. Legal Aid Services can also take into account any support you regularly get from your family or others, regardless of how old you are.

Note: If you’re on a benefit and don’t have any assets you’ll usually qualify for Legal Aid.

Seriousness of the offence

Legal Services Act 2011, s 8(1)(c)

Applications for criminal Legal Aid are divided into two types, which involve how serious the charge is:

  • Six months jail or more – You’ll automatically qualify for Legal Aid if the maximum prison term for the offence is six months or more, and you can’t afford a lawyer.
  • Less serious offences – You usually can’t get Legal Aid for less serious offences, like most traffic offences and minor offences like disorderly behaviour. But you may still qualify if one of the special factors listed below applies in your case (see below, “Special factors that can justify Legal Aid for minor offences”).

Legal Services Act 2011, s 8(2)

If the offence you’re charged with is a less serious one, you won’t automatically qualify for Legal Aid. However, you may still qualify if there are special factors – for example:

  • there’s a real likelihood you’ll be jailed if you’re convicted
  • you’ve got a criminal record, which could make it more likely you’ll be jailed
  • your case is very complicated, or there’s a significant legal question involved
  • you face a special barrier or disability, like difficulties with reading or writing, or a mental illness.

    Note: It may be worth applying for Legal Aid if you’re a first-time offender charged with a less serious offence and you want to avoid a conviction by applying for a discharge without conviction or negotiating with the police about getting diversion.

What happens if my financial situation changes later on?

Legal Services Act 2011, s 25

If you’ve been granted criminal Legal Aid you must tell Legal Aid Services if your income or your assets increase.

Also, even if you’re no longer getting Legal Aid you have to tell Legal Aid Services if you realise later that, while you were getting Legal Aid, your income or assets increased by an amount that could have affected whether you qualified.

Legal Services Act 2011, s 111

It’s a crime to knowingly mislead or provide false information to Legal Aid Services, or to fail to provide information that’s required by the Legal Aid laws – for example, not telling them about a change in your financial situation. You can be fined up to $2,000 for this.

Note: Your Legal Aid lawyer also has a legal obligation to notify Legal Aid Services if they know of a change in your situation that would affect whether you qualify for Legal Aid.

The amount of Legal Aid granted

Legal Services Act 2011, ss 23, 28

There are standard amounts of Legal Aid that can be granted, which depend on both the type of criminal case and your Legal Aid lawyer’s level of experience.

Legal Aid Services can specify a maximum amount for the particular case, either as a maximum number of hours, or a maximum dollar amount, or some other way.

If your lawyer needs to do more work than the grant allows for, you may be able to apply for and be granted more Legal Aid.

Repaying criminal Legal Aid

Will I have to pay anything towards the cost of my case?

Legal Services Act 2011, ss 18, 21, 105; Legal Services Regulations 2011, regs 10-12, Schedule 1, Schedule 2

If you’ve been granted criminal Legal Aid you may have to pay some of it back. You’ll be told about this in the same letter that tells you you’ve been granted Legal Aid.

The amount that you have to pay back is worked out using a complicated formula set out in the Legal Services Act and the Legal Services Regulations. Generally, the amount you have to repay depends on these factors:

  • your income and your assets (your “capital”)
  • whether you’re single or have a partner
  • whether you have dependent children
  • how much your case will cost.

Your Legal Aid repayment is paid to your lawyer directly, and they’re not allowed to ask for or take payments from you for any work that’s covered by the Legal Aid grant.

How do I make repayments?

Legal Services Act 2011, ss 18, 20

You can make repayments in different ways, including automatic payments made weekly, fortnightly or monthly. You could also make your repayment as a lump sum.

If Legal Aid Services decide you can afford to make regular payments, you’ll probably have to start them straightaway. These are called “interim repayments”. You will be told when you need to start making repayments in the letter from Legal Aid Services.

If you own a house, car or other significant property, a “charge” may be put on it, as security for your Legal Aid debt. This means that if you sell the property, Legal Aid Services will be able to recover your Legal Aid debt from the money you get from the sale. You’ll also have to repay the administrative costs of registering the charge.

What happens if I don’t keep up with my repayments?

If you do not keep up with the repayment plan, there are a few ways Legal Aid Services can try to recover the debt including:

  • forwarding it to a debt collecting agency
  • deducting the debt directly from your wages, salary or benefit
  • cancelling your Legal Aid.

What can I do if I think the amount I have to repay is unreasonable?

Legal Services Act 2011, ss 51,52

In this case you can ask Legal Aid Services to reconsider. If they don’t change the decision, you can appeal to the Legal Aid Tribunal. See “Challenging a Legal Aid decision” below.

Legal Services Act 2011, ss 42, 43

You can also ask Legal Aid Services to write off or not enforce some or all of the repayment amount, or to release (cancel) a charge they’ve put on some of your house, car or other property. They can do this if:

  • enforcing the debt would cause you “serious hardship”
  • the cost to them of enforcing the debt would probably be more than the amount that you’re likely to repay
  • they think this would be fair.

Your criminal Legal Aid lawyer

Can I choose which lawyer will represent me?

You usually won’t be able to choose which lawyer will represent you, unless you’re facing very serious charges:

  • Most cases – If the maximum prison term you’re facing is less than 10 years, you’ll be assigned a Legal Aid lawyer.
    • but there are exceptions – for example, if you already have a Legal Aid lawyer working for you on a separate charge, or if you’re under a mental health order
    • if you spoke to a lawyer under the Police Detention Legal Assistance (PDLA) scheme, that lawyer will be assigned to you
    • you may be assigned a private criminal lawyer, or a Public Defence Service lawyer (one employed by the government). However, you have the right to the same level of service, regardless of who is assigned to you.
  • Very serious charges – If you’re facing charges carrying a maximum sentence of more than 10 years’ prison, you’ll be able to choose your own lawyer. However, the lawyer must be one who’s approved to do criminal Legal Aid work and must be able to be at court when needed.

If you’re not happy with the lawyer who’s been assigned to you, you should first discuss your concerns with them. If that doesn’t resolve the problem, you should contact Legal Aid Services. In rare situations, when there’s a good reason for doing so, Legal Aid Services can agree to assign you a new lawyer.

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