Time Recording and Billing for Criminal Law Matters in Australia

Criminal law billing operates differently from most other areas of legal practice. Clients are often under financial pressure — many are out of work, dealing with bail conditions, or facing the prospect of imprisonment. Legal Aid plays a significant role but covers only a fraction of the work at rates well below market. And the unpredictability of the criminal justice system — adjournments, late disclosure, changing charges — makes cost estimation genuinely difficult.

Despite these challenges, accurate time recording remains essential. Whether billing privately, claiming against a Legal Aid grant, or building the case for a costs order, detailed records of the work performed are the foundation of every billing arrangement in criminal practice.

Billing Models in Criminal Law

Fixed fees for summary matters

Fixed-fee arrangements are common for straightforward summary offences heard in the Local Court or Magistrates Court. Traffic offences, minor assault, shoplifting, possession of small quantities of drugs, and apprehended violence orders are all commonly billed on a fixed-fee basis because the scope of work is relatively predictable.

A typical fixed-fee structure might cover the initial consultation and advice on plea, preparation of submissions, and attendance at the hearing or mention. The fee assumes a certain number of court attendances (usually one or two) and a defined scope of preparation. Additional court appearances, contested hearings, or appeals are priced separately.

The advantage of fixed fees for criminal work is that clients — who are often anxious and financially stressed — know exactly what they will pay. The risk is that the matter takes longer than expected and the firm absorbs the additional cost. For a broader discussion of fixed fees versus hourly billing, see our article on fixed fee vs hourly billing.

Hourly billing for indictable matters

Serious indictable offences — drug supply, sexual assault, fraud, robbery, manslaughter — typically require hourly billing because the scope of work is impossible to predict at the outset. A matter that begins as a straightforward assault can evolve into a complex trial involving forensic evidence, multiple witnesses, and interlocutory applications.

For hourly-billed criminal matters, the costs disclosure should include the applicable hourly rates, an estimate of costs for each stage (committal, pre-trial, trial), a clear statement that the estimate is based on current information and may change, and the client's right to seek costs assessment.

Legal Aid grants

Legal Aid NSW, Victoria Legal Aid, and their equivalents in other states fund criminal defence for defendants who meet the means and merits tests. Legal Aid billing is fundamentally different from private billing — it is stage-based rather than time-based, with prescribed fees for each stage of the matter (initial advice, committal, trial, appeal).

The prescribed rates are significantly below private market rates, which creates a perpetual tension for practitioners who take on Legal Aid work. A Legal Aid grant for a District Court trial might fund 40 hours of preparation at a rate of $200/hour, while the actual preparation may require 80-100 hours at a private rate of $400-600/hour.

Despite the stage-based billing, maintaining detailed time records for Legal Aid matters is important for several reasons: demonstrating that a grant extension is warranted because the prescribed hours are insufficient, supporting an application for additional disbursements, defending against any suggestion that the representation was inadequate, and for the firm's own practice management and profitability analysis.

Recording Time for Key Criminal Law Activities

Police station attendance

Attending a police station for a client interview or to sit in on a police interview is billable time from the moment the lawyer arrives until the moment they leave, including waiting time. The description should note the purpose (ERISP interview, bail application, charge negotiations), who was present, and the outcome. Travel time to and from the station is also billable if the costs agreement provides for it.

Court appearances

Criminal courts are notorious for delays. A mention listed for 9:30am may not be called until 11:00am, and a contested hearing listed for a day may not start until after lunch. All waiting time is billable, and the time entry should reflect the actual time in attendance, not just the time on the record.

A good practice is to record court time as a single block entry with start and end times: "Attending Downing Centre Local Court for mention of matter; matter stood in list; conferring with client and prosecution; matter called at 11:15am; brief submissions regarding adjournment; matter adjourned to 15 May for hearing. In attendance 9:15am to 11:45am (2.5 hours)."

For detailed guidance on billing for court appearances, see our article on billing for court appearances and litigation.

Brief to counsel

Preparing a brief to counsel for a criminal trial is one of the most time-intensive activities in criminal practice. It involves compiling and organising all evidence, correspondence, and instructions into a coherent document. Time should be recorded separately for reviewing and sorting the brief materials, drafting the cover letter and instructions, preparing any chronology or issues summary, and attending conference with counsel to discuss the brief.

Evidence review

Criminal matters often involve large volumes of evidence — CCTV footage, phone records, financial documents, forensic reports, body-worn camera footage. Time spent reviewing evidence is billable, and the description should identify what was reviewed and the purpose: "Perusal of CCTV footage from three cameras covering period 11:00pm to 2:00am; identifying frames relevant to client's account of events and noting discrepancies with prosecution witness statements."

Client conferences

Client conferences in criminal matters serve multiple purposes: taking instructions, explaining charges and procedure, discussing plea options, preparing for hearings, and managing the client's expectations about outcomes. Each conference should be recorded with the date, duration, and a description covering the topics discussed and any instructions received.

Prison visits for remanded clients involve additional time for travel and security processing. The billable time should include travel (if the costs agreement provides for it), time in the prison waiting area, and the actual conference time. Security processing time — being screened, waiting for escorts, and so on — is part of the attendance and should be included.

Managing Costs Expectations in Criminal Matters

Criminal clients are often in the most vulnerable position of any legal client. They may be facing imprisonment, loss of employment, family breakdown, and public shame. In this context, a billing dispute is the last thing either party needs.

Be realistic about costs at the first meeting. A client charged with a serious indictable offence needs to understand that a contested trial in the District Court may cost $50,000 to $150,000 or more. Quoting $20,000 to get the client through the door and then delivering a $100,000 bill is both unethical and commercially destructive.

Explain the stages. Criminal matters proceed through defined stages — initial advice, committal or case conference, pre-trial preparation, trial, and sentencing. Providing a costs estimate for each stage helps the client make informed decisions at each point about whether to continue with private representation, apply for Legal Aid, or negotiate a resolution.

Discuss Legal Aid eligibility early. If the client may qualify for Legal Aid, discuss this at the first meeting. Some clients prefer private representation for its perceived advantages (choice of lawyer, more preparation time), but they should make that choice with full knowledge of the cost difference.

Bill promptly and regularly. Monthly billing in criminal matters prevents the accumulation of a large unpaid balance. It also gives the client regular visibility of costs, which reduces the risk of surprise and dispute at the conclusion of the matter.

Costs Orders in Criminal Proceedings

Costs in criminal proceedings follow different rules from civil litigation. In summary matters, the Magistrates Court has a general discretion to award costs under section 214 of the Criminal Procedure Act 1986 (NSW). In practice, costs are rarely awarded against the prosecution in summary matters unless the proceedings were brought without reasonable cause or conducted improperly.

In indictable matters, the court may order costs in limited circumstances — for example, where charges are withdrawn or the defendant is acquitted after a prosecution that was unreasonable or vexatious. The Costs in Criminal Cases Act 1967 (NSW) provides for certificates that allow acquitted defendants to recover costs from the state, but the amounts recoverable are typically well below the actual costs incurred.

When pursuing a costs order, detailed and accurate time records are essential evidence of the costs actually incurred. Vague descriptions and estimated times will be scrutinised and potentially reduced by the assessing officer.