In New South Wales, a person that has been charged with a criminal offence and is affected by a mental illness or another mental condition (or was at the time of the alleged commission of the offense to which the proceedings relate), is able to make an application to the Court for special consideration under Section 32 of the Mental Health (Forensic Provisions) Act 1990 ( the “Act”).

Who is eligible to make a Section 32 Application?

If you have been charged with a criminal offense and are (or were at the time of the alleged commission of the offense to which the proceedings relate):

1.Cognitively impaired; or

2. Suffering from a mental illness; or 

3. Suffering from a mental condition for which treatment is available in a mental facility, but is not a mentally ill person,

you may be eligible to make an application under Section 32 of the Act. 

What do you need to do?

You will be required to obtain independent expert reports to support your application amongst other things.

Section 32 applications can be complex and we do not recommend that you prepare an application to the Court under section 32, without first obtaining legal advice. 

What powers does the Magistrate have?

If your application under the Act is successful, in accordance with Section 32(2) of the Act, the Magistrate may:

1. Adjourn the proceedings;

2. Grant the defendant (you) bail; or

3. Make any other order that the Magistrate considers appropriate.

The Magistrate may also make orders in accordance with Section 32(3) of the Act. This may include:

1. Dismissing the charge against you unconditionally; or 
2. Dismissing the charge and discharging (you) into the care of a responsible person either:
   1. Unconditionally; or
   2. Subject to conditions; or
   3. On the condition that you attend upon a place (that is specified by the Magistrate) for assessment or treatment (or both) to enable the provision of support in relation to your cognitive impairment.

What happens if I breach an Order made under Section 32?

If the Magistrate suspects that a defendant (you) has failed to comply with a condition of an order under section 32, within 6 months of the order being made, the Magistrate may call on the defendant (you) to appear before the Magistrate. 

In the event you do not appear as required, the Magistrate may issue a warrant for your arrest. 

The Next Step

If you or someone you know has been charged with a criminal offence, is affected by a mental illness or another mental condition and wants to learn more about making a Section 32 application, we would be pleased to hear from you. 

We look forward to working with you to achieve your aims and protect your interests.

Please call us on 1300 000 770 or email admin@glaser.net.au to make your appointment.