Section 32 application – mental health

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Address: Tower 2, level 20 201 Sydney, Sussex Street, NSW, 2000, AU
Telephone: 02 9290 8514

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If you have committed a criminal offence and you were suffering from a mental condition (such as Depression) at the time you committed the offence, you can avoid a criminal conviction if you make a successful section 32 application.

Our team of expert criminal lawyers can assist you with an application to dismiss the proceedings under section 32 of the Mental Health (Forensic Provisions) Act 1990. This section allows the court to dismiss a matter if the person was suffering from a mental illness, condition or cognitive impairment at the time of committing the alleged offence. An order under section 32 means that your matter will be diverted from the criminal justice system and no conviction will be recorded against you.

This application is only available for matters that are heard in the Local Court. In deciding whether a section 32 application should be granted, the court relies on written reports from experts and service providers as to the intellectual disability, developmental disability and mental disorders that the accused person may have including:

Process

A section 32 application can be made at any point during the proceedings and is generally raised by the defendant’s lawyer. The magistrate will be given an outline of the facts and generally, medical or psychiatric/psychological reports.

There are three decisions that the magistrate must make for a section 32 application to be ordered:

First is a question of fact and whether the defendant before the court eligible for as 32 order?
Second is a matter of discretion and asks whether it appropriate for the defendant to be dealt with through a s 32 order instead of in accordance with the law? The court must have regard to the public interest.
What orders should be made?

Under section 32(3) the magistrate can dismiss the charge and discharge the defendant:

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