The Magistrate Refused My Section 32 – What Now?


If you suffer from a mental condition or were suffering at the time you committed an alleged offence you may be able to apply for a Section 32 order.

A Section 32 is a court order which diverts people who suffer from certain mental conditions into treatment and away from the criminal justice system.

If you are successful in applying for a Section 32, you will be discharged with no conviction and normally you will be required to comply with a treatment program.

There are a number of misconceptions in the legal profession and among magistrates and police officers that a Section 32 order is an easy way for offenders to avoid conviction.

This means that magistrates can be sceptical and it can be difficult to convince them to issue a Section 32 order.

Having the right criminal lawyer can make a big difference to your chance of success, and if you are refused, there are still options available to you.

Why would I be refused a Section 32?

There are a number of reasons a magistrate might refuse to grant a Section 32.

You will need to meet each of the criteria under Section 32 to make a successful application; including:

1. Suffering from a relevant ‘mental condition’,

2. Having a case that is ‘appropriate’ to be dealt with under Section 32, and

3. Having a suitable ‘treatment plan’.

First of all, there are specific criteria as to what types of mental conditions warrant the order, and it can sometimes be complex when there are multiple issues or drug and alcohol problems mixed in as well.

Secondly, to grant a Section 32 order, the magistrate will need to determine that it’s more appropriate to deal with your matter under a Section 32 than by the usual methods of punishment

It will only be more appropriate to make the order if it is in the public interest, as opposed to the interests of the person making the application.

The court will take a number of different factors into consideration when making this decision, including the seriousness of the offence, the extent and relevance of the mental condition/s,  and the need to deter other from committing offences of that type.

Thirdly, there will need to be a suitable treatment plan for a period of up to 6 months.

It’s important to seek experienced legal advice if you think a Section 32 might be appropriate for you.

However, if you are unsuccessful and your Section 32 application is refused you can appeal or in some cases make another application.

Making a second application

There is technically no limit on the number of applications you can make in the local court and you can do this at any stage of the proceedings.

If you are refused a Section 32 you can reapply, although unless there is significant new evidence to support your application or a reasonable amount of time has passed, it may be unlikely you will succeed.

In some circumstances, for instance if you have been complying with a treatment plan which has shown benefits for some time, a second application may be successful.

If you decide to plead not guilty after having a Section 32 refused, the matter will progress to a defended hearing.

This can provide some time to obtain more supporting evidence and demonstrate compliance with a treatment plan if you decide to reapply for a Section 32 in the future.

Appealing in the district court

It is possible to appeal against a magistrate’s decision to refuse your Section 32 application.

An appeal can be lodged to the district court within 28 days of the local court case being finalised and the case will be reconsidered by the district court in due course.

As well as this option, in some circumstances you may be able to apply to have the local court magistrate who refused your application disqualified on the basis of actual or apparent bias.

Another application can then be made in the local court before another magistrate.

Previously there was a provision in the Mental Health Act which required the automatic disqualification of a magistrate in certain circumstances.

Although this has been removed, it is still an obligation for magistrates to disqualify themselves if they have or could be considered to have bias against a particular outcome.

So being refused a Section 32 application does not necessarily shut-the-gates to an order being made at a later date.

If you have been refused a Section 32, its best to make sure that you seek legal advice from an experienced criminal lawyer who has a good track record of successfully obtaining Section 32 orders for clients.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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