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Legal Aid for Driving Offences in Victoria
If you’re facing a traffic-related charge, a Court appearance is inevitable. While it’s feasible to represent oneself, seeking legal advice is very important. Legal representation ensures the protection of rights for those in the criminal justice system. For individuals unable to afford private legal services, Victoria Legal Aid (VLA) offers free resources, legal advice and representation, though certain limitations apply.
Unfortunately Legal Aid no longer funds driving matters that feature under the Road Safety Act unless special circumstances apply, read on for more information.
Even in relation to criminal matters it’s essential to note that not everyone qualifies for VLA support. Eligibility for a grant of legal assistance from VLA depends on several factors, such as the seriousness of the charges, the likely outcome of the case and the age or vulnerability of the accused.
To obtain support for criminal law matters, applicants generally need to meet both the means test (an assessment of income and assets) and the State reasonableness test (an assessment of the case’s impact and outcome).
Means Test
When a person applies for a grant, VLA considers the applicant’s (and partner’s, if relevant) income, assets and expenses, as well as the nature of their legal matter. If the applicant meets these thresholds, they meet the means test requirements.
For example, if a person’s income is less than $360 per week with assets of less than $1095, the applicant meets the means test and does not need to make any financial contribution to their case.
State Reasonableness Test
To be eligible for a grant, an applicant must also satisfy the State reasonableness test. This test considers the potential benefits and detriments of a grant to an applicant and the public. VLA also considers the likelihood of achieving a favourable outcome for the applicant and, if relevant, whether there are reasonable grounds for an appeal against sentence or conviction.
Legal aid for criminal matters
Subject to satisfying the State reasonableness test and the means test, under the criminal law guidelines, VLA may grant legal assistance in relation to a range of criminal law mattersm (see VLA Criminal law guidelines).
Legal aid may grant legal assistance for:
- Criminal charges heard in the Magistrates’ Court.
- Criminal charges being heard in the Assessment and Referral Court List. The Assessment and Referral Court (ARC) is designed to assist people to address factors that contributed to their offending conduct. The ARC is considered a therapeutic court, and aims to improve the wellbeing of people in the criminal justice system.
- Bail applications in the Magistrates’ Court, the County Court and in the Supreme Court.
- Proceedings in the Criminal Division of the Children’s Court.
- Criminal appeals to the County Court.
- Committal proceedings.
- Criminal trials in the County Court and in the Supreme Court.
- County Court and Supreme Court pleas.
- Criminal appeals to the Court of Appeal and to the High Court.
- Hearings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
- Applications under the Serious Offenders Act 2018.
- Proceedings in the County Court or the Supreme Court for breach of certain orders.
Criminal appeals to the County Court.
VLA may grant legal assistance to a person seeking to appeal a decision of the Magistrates’ Court to the County Court where the person received a term of immediate imprisonment (Criminal law guideline 7.1). This requires that a criminal law matter is sufficiently serious to warrant a custodial sentence. VLA will not make a grant of legal assistance for an appeal concerning a fine, community correction order, driver’s licence suspension or suspended sentence.
Under the State reasonableness test, the following factors are considered by VLA in respect of appeals:
- Whether there are reasonable grounds for the appeal.
- The seriousness of the penalty against which the person seeks to appeal.
- The cost of the appeal weighed against the benefit of the appeal having regard to other demands on the legal aid fund.
Grants for legal assistance may be made for appeals against sentence, conviction or both.
Can I get Legal Aid for Driving Matters?
In limited circumstances, VLA may grant legal assistance to a person who charged with a minor traffic matter or summary offence under the Road Safety Act 1986, heard in the Magistrates’ Court.
If you received gaol in Magistrates Court and you are appealing or;
A grant may be made if an accused person has a serious mental health issue, intellectual disability or an acquired brain injury, and the person’s conviction is likely to result in imprisonment (Criminal law guideline 2). This penalty threshold applies despite whether an accused person proposes to plead ‘guilty’ or ‘not guilty’.
This does not apply to serious traffic matters, such as culpable driving, dangerous driving causing death or serious injury or any of the Crime Act 1958 related driving matters. If you are unsure you should contact the office.
Special circumstances
In exceptional cases, where the circumstances fall outside the guidelines, VLA may grant legal assistance if the applicant meets the means test, the State reasonableness test or the State interests of justice test, and any of the State’s special circumstances.
For example, VLA may grant legal assistance for more serious and indictable driving-related offences if the person meets one of the following conditions:
- is under 18 years old;
- has a reading or writing difficulty;
- has an intellectual disability within the meaning of the Disability Act 2006 (Vic); or
- has a serious mental health issue and is receiving services from a designated mental health service under the Mental Health Act 2014 (Vic) (Criminal law guideline 2).
However, a grant of legal assistance under the VLA’s special circumstances guideline cannot be applied to (generally less serious) traffic offence matters heard in the Magistrates’ Court (Special Circumstances Guideline).
Other support services available
Victoria Legal Aid provides free resources and other information for driving offences on their website. The Fitzroy Legal Services also provides an excellent resource, ‘The practical guide for law in Victoria’, which is updated yearly and available for free. See here for specific information and resources concerning driving offences in Victoria.
You can also contact your local community legal service for general legal information and legal advice. These services are free or low-cost.
When you go to Court, Court Network volunteers can also provide support. While they cannot offer legal advice, they provide non-legal support, and can help you navigate the Court systems and understand the legal process. Tell Court staff if you want to see a volunteer or ring the Court beforehand.
If you have the means available to you, you can also contact a private lawyer through the Law Institute of Victoria’s Legal Referral Service. All private law firms available through this service offer an initial free 30-minute interview, which you can use to understand your options.
