Before prison: The criminal court process
Lawyers and legal aid
How can I get a lawyer?
Legal Services Act 2011, ss 6,8
Different prisons have different arrangements for prisoners to get legal advice. Some prisons receive regular visits from volunteer lawyers or from Community Law Centre lawyers. In other prisons, lawyers will visit when asked to, and you can either contact them directly or through the prison. Ask a prison officer or visiting advocate about the arrangements at your prison. If they don’t know, ask them to call the New Zealand Law Society on 0800 22 30 30, or visit the Law Society website www.lawsociety.org.nz and search “get legal help”.
If you’re able to pay for a lawyer yourself, you can find out the names of suitable criminal lawyers from the prison staff or from a visiting advocate or lawyer. If the staff don’t know, ask them to call the local branch of the New Zealand Law Society.
If you can’t afford your own lawyer, then the first time you go to court you can get free legal help from the duty lawyer there. After this first court appearance the duty lawyer will usually help you apply for legal aid so that you will have your own lawyer. The duty lawyer will help you apply for legal aid. If you’re granted legal aid, you usually won’t get to choose which lawyer is assigned to you, unless you’re charged with a very serious offence like aggravated robbery or rape. Read more about legal aid below.
If at your first court appearance you didn’t see a duty lawyer or they didn’t help you apply for legal aid, you can contact a Legal Aid office directly. For more information, go to www.justice.govt.nz and search, “public defence service“.
Your local Community Law Centre lawyer can also help you apply for legal aid
How can I contact my lawyer from prison?
You have the right to get legal advice from your lawyer while you’re in prison. You can contact your lawyer by phone from prison, and they can also visit or phone you. You can also send mail to your lawyer.
For more information, see the chapter “Visits, phone calls and mail: Communicating with people outside prison”
When you phone your lawyer from prison, there’s no limit on how long you can talk or on how often you can phone.
If you’ve applied for legal aid but you haven’t yet heard which lawyer has been assigned to you, you can phone the nearest Legal Aid office to find out about this.
How can I complain about my lawyer?
You should first tell your lawyer if you’re not happy about how they’re representing you. They may be able to explain or fix the problem. If they’re a legal aid lawyer, you can complain to a Legal Aid office and you may be able to get a different lawyer (see below). You can also complain to the New Zealand Law Society about any lawyer.
What is legal aid?
Legal Services Act 2011, ss, 6, 8, 9
Legal aid will help pay for your lawyer’s fees if you qualify for it. It will help cover all the necessary fees and expenses of your court case. You sometimes have to pay legal aid back.
Generally getting legal aid depends on two things:
- First, whether the charge is serious or your case is a particularly complicated one. Even if it isn’t a very serious charge you might still get legal aid if there are some quite difficult factual or legal issues that you’ll need help with.
- Second, whether you can afford to pay a lawyer privately. In general, if you’re on a benefit you’ll qualify for legal aid.
Will I have to pay back my legal aid?
Legal Services Act 2011, ss 18, 21, 42, 43; Legal Services Regulations 2011, regs 10-12
You may have to repay some of your legal aid, depending on what your income is, what property you own, whether you have a partner and dependent children, and how much your case costs. However, if you’re on a benefit and don’t have any assets, you probably won’t have to repay any of your legal aid.
Applications can also be made to waive the requirement to pay back legal aid costs.
What information will I have to give when I apply for legal aid?
Legal Services Act 2011, s 8, Schedule 1
In order to complete the form you may have to know:
- your income for the last 12 months or how much money you’re getting every week
- how much money you have in the bank
- what bills you have and what it costs you each week to live
- how much your things are worth – for example, your house (if you own it), car and furniture
- how much your case will cost (your lawyer should be able to give you an estimate of this)
- what offence you’re being charged with
- if you have a partner, then you’ll also have to state their income and assets in your application. If you live with your parents, or receive support from family or other people, then this may be taken into account.
The decision to grant or refuse legal aid
The Legal Aid service at the Ministry of Justice will decide whether or not you get legal aid.
The things they take into account include:
- whether or not you can afford to pay for a lawyer yourself
- whether you’ve had any previous convictions
- whether you could go to prison for this offence.
Can I choose my legal aid lawyer?
Legal Services Act 2011, ss 68, 71; Ministry of Justice Granting decisions manual
If you’re on legal aid, you generally can’t always choose your lawyer. You can only choose if you’re charged with an offence with a maximum prison term of 10 years or more. There are some exceptional circumstances where you may be able to choose your lawyer.
If you’re granted legal aid, you may be assigned a lawyer from the Public Defence Service (PDS) rather than a private lawyer who does legal aid work. The PDS is a government organisation that employs lawyers to represent criminal defendants who can’t afford a lawyer.
What if I’m unhappy with my legal aid lawyer?
If you’re unhappy with your legal aid lawyer, start by discussing the problem with them. If this doesn’t fix the problem, you can contact the Legal Aid service. They may be able to assign a new lawyer to you if there’s a good reason – however, this doesn’t happen very often.
I was refused legal aid – can I challenge this?
Legal Services Act 2011, ss 51-53, 55
If you’re refused legal aid you can ask the Legal Services Commissioner to reconsider the decision. You’ll have to fill in a special form for this. You have 20 working days after the original decision to ask for the decision to be reconsidered.
If that doesn’t change the decision, you can appeal to the Legal Aid Tribunal. You have 20 working days to do this, unless it’s a special case. You’ll need to fill out a special form to take the decision to the Legal Aid Tribunal.