Legal Services Act 2011, s 8

Whether you’re granted Legal Aid for a criminal case will depend on:

• whether you can afford a lawyer (see: “Financial eligibility for Legal Aid”), and
• the seriousness of the offence you’ve been charged with, and other special factors about your case (see below).

Legal Services Act 2011, s 8(1)(c), 8(2)

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

• Six months jail or more – If you can’t afford a lawyer (based on the above calculation), you’ll automatically qualify for Legal Aid if the maximum prison term for the offence is six months or more.
• 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:
  • 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.

Legal Services Act 2011, s 6

You can apply to get criminal Legal Aid if you’ve been charged with or convicted of a criminal offence. Criminal Legal Aid is usually only granted for more serious charges, where prison time is one of the possible sentences for the offence.

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: youthlaw.co.nz.

You can apply as soon as you’ve been charged with a crime or been sent a summons to appear in court, or you can wait for your first day in court and get help from a Duty Lawyer (see: “How do I apply for criminal Legal Aid?” below).

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”)
• 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).

You can ask a Duty Lawyer or the criminal Registrar to help you fill out the application form to get criminal Legal Aid. It’s particularly helpful to get a lawyer to help with the sections: “Other financial information” and “Criminal charges” on page 4 of the application form.

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.

If you’re facing charges that have a maximum sentence of more than 10 years in 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. To check whether your preferred lawyer is approved to provide Legal Aid, go to justice.govt.nz/find-a-legal-aid-lawyer.

If you’re facing a maximum prison time of 10 years or less, you’ll be assigned a Legal Aid lawyer – you usually don’t get to choose. They might be a private criminal lawyer, or a Public Defence Service lawyer (“PDS”). Either way, you have the right to the same level of service.

If you already have a Legal Aid lawyer working for you on a separate charge, they’ll likely be assigned to both cases.

If you’re going to court about a compulsory treatment order, the hospital will organise someone on the legal aid mental health duty roster to represent you. You should be given a chance to choose any lawyer from that roster, as long as they have mental health approval.

If you spoke to a lawyer under the PDLA scheme, that lawyer will likely be assigned to you (see: “Free advice when you’ve been arrested: The PDLA scheme”).

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. You’ll need to provide a reason why you want to be reassigned a new lawyer – for example, if you’re unable to get in touch with them.