Drafting Section 32 Applications – A Guide for Criminal Lawyers

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Applications under section 32 of the Mental Health (Forensic Provisions) Act 1990 are a handy tool for diverting clients who suffer from ‘mental conditions’ towards getting the help they need.

The section allows a court to dismiss a criminal charge altogether provided that the applicant complies with a treatment plan.

An application can be made at any stage of the proceedings, including after a plea of ‘guilty’ has been entered or even on appeal to the District Court.

A successful section 32 application will mean that there is no criminal conviction and no finding of guilt against your client.

You will probably have noticed that courts are impressed by lawyers who go the extra-mile for their clients by drafting written submissions to support their applications.

Well-drafted written submissions will often assist the court to reach a conclusion and, in my view, significantly increase the prospects of success.

Unfortunately, I have seen a number of criminal lawyers making section 32 submissions which are simply legally incorrect or otherwise doomed to failure.

The two most common mistakes I have seen are:

  1. Lawyers essentially submitting that the ‘balancing’ exercise involves weighing the public interest against a person’s private interests, and
  2. Lawyers handing-up reports that do not state that treatment is available at a mental health facility, or do not prescribe a length of 6 months (or less), or do not contain a comprehensive treatment plan.

The mistakes have, in my view, led to applications being refused despite defendants clearly suffering from mental conditions that contributed to the commission of the alleged offences.

I am of the view that many applications could have been won with better preparation and knowledge of the law.

The following guide is not meant as any type of ‘authoritative statement’.

Another practitioner may find additional or alternative parts of the authorities to be useful.

In fact, I often add or change exerts depending on the case-at-hand. And styles vary from lawyer-to-lawyer.

I’m providing this basic outline to generally assist other lawyers and, ultimately, their clients.

The outline is meant as a ‘guide-only’ and omits the ‘substance’ of the submissions – which is where I apply the facts and expert opinions to the law and seek to persuade the court to grant the application.

But in any event, here are some of the basic headings I often use when drafting my written submissions:

1. Charge

(Case-specific – outline charge type, maximum penalty and SNPP if applicable)

2. Local Court

(Use only if the application is being made in a higher court, eg District Court. Outline the plea & penalty imposed)

3. Present Application

(Below is the most common type of s32 application ie to dismiss charge and discharge the defendant into the care of a medical practitioner)

This is an application under section 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (‘the Act’) for the charge to be dismissed and the applicant discharged into the care of (‘type title and name of medical practitioner here’).

4. Power to hear application

(Use this part ONLY IF it’s an appeal from the Local Court to the District Court. Nb: an application can be made in the District Court EVEN IF an application was refused in the Local Court or not made at all in the Local Court)

Section 28(2) of the Crimes (Appeal and Review) Act 2001 states that ‘[i]n determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings’.

5. Law

Section 32 inter alia gives the court power to dismiss any charge and discharge an applicant into the care of a responsible person upon making three decisions:

  1. That the applicant is suffering from a mental condition for which treatment is available at a mental health facility, but is not a mentally ill person (ss(1)(a)(iii)) (‘the first limb’),
  2. That it would be more appropriate to deal with the applicant under the Act than otherwise in accordance with the law (ss(1)(b)) (‘the second limb’),

And if the first two limbs are satisfied

Which of the actions set out in subsections (2) or (3) should be taken.

3. Which of the actions set out in subsections (2) or (3) should be taken.

a) First limb

The first decision is a finding of fact and is properly described as the jurisdictional question; DPP v El Mawas [2006] NSWCA 154 [75].

The Court is to determine whether (i) the applicant suffers from mental condition, (ii) is a mentally ill person, and (iii) treatment is available in a mental health facility.

b) Second limb

The second decision is a discretionary judgment as to the appropriateness of the proceedings under the Act rather than under the general criminal law; Confos v DPP [2004] NSWSC 1159 per Howie J at [16].

It is a ‘judgment upon which reasonable minds may reach different conclusions in any particular case’; Confos at [17].

It requires the Court to ‘perform a balancing exercise; weighing up, on the one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system’; at [17].

That task ‘cannot be properly exercised without due regard being paid to the seriousness of the offending conduct for which the defendant is before the court’, and:

‘Clearly the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act’; at [17].

Nevertheless, the regime is still ‘available to serious offenders as long as it is regarded, in the Magistrate’s opinion, as more appropriate than the alternative’; El Mawas at [79].

The Court’s ultimate task is to balance two public interests, rather than the public interest against the private interest of the defendant in rehabilitation’; Confos at [17], El Mawas at [77].

In performing that task, the Court might place significantly less emphasis on general deterrence where an offender is suffering from a ‘serious mental disorder’; R v Fahda [1999] NSWCCA 267 at [51].

The Court may take into account ‘the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant’ and ‘no one [consideration] and no combination [of considerations] is necessarily determinative of the result’; El Mawas at [76].

c) Action to be taken

If limbs 1 and 2 are satisfied, the Court is to make an order under subsection (2) or (3).

Subsection (3)(a) provides for an order discharging the applicant into the care of a responsible person subject to conditions. Those conditions can be set out in a treatment plan.

An applicant who fails to comply with a treatment plan can be called back to Court within 6 months of the order being made; ss (3A).

6. Present Case

(case-specific – briefly state the materials upon which the application is based eg report of Dr ‘X’ dated ‘X’, the police ‘facts’ etc)

a) First limb

(i) Suffering from a ‘mental condition’

(case specific – cite relevant parts of report/s and/or other materials relied upon)

(ii) Not a ‘mentally ill’ person

(case-specific – cite relevant part of report/s)

(iii) Treatment available at a mental health facility

(case-specific – cite relevant part of report/s)

It is submitted that the first limb is therefore satisfied.

b) Second limb

A range of factors might properly be considered when deciding whether it is more appropriate to deal with this matter under the Act rather than otherwise in accordance with the law.

These might include:

(below are some of the headings that may be relevant to any particular case – some may be irrelevant and there may be additional headings, depending on the case)

(i) Seriousness of the charge and the need for deterrence

(case-specific – it is important to acknowledge the seriousness and need for general deterrence rather than to just ignore it)

(ii) The applicant’s history of mental health issues

(case-specific – detailed submissions based upon reports and facts of case)

(iii) The events leading up to the incident

(case-specific – detailed submissions based upon reports and facts of case)

(iv) The incident itself

(case-specific – detailed submissions based upon reports, police ‘facts’ and/or the defendant’s account as contained in the report)

(v) Any link between the incident and the applicant’s mental condition

(case-specific – detailed submissions based upon reports and facts of case)

(vi) The public interest in diverting the applicant

(case-specific – this must PERSUASIVELY PRESENT the PUBLIC INTEREST in diverting the person rather than talk about his or her private interests. The most common public interests are to minimise the prospects of future offending, to avoiding the cost of hospitalisation / institutionalisation etc. Must quote the applicable parts of the report/s)

It is therefore in the public interest to divert him at this stage rather than to punish him for the offence.

c) Action to be taken

The said report contains an intensive treatment plan that would require the applicant to:

(the treatment plan must be intense and should have numerical points. EG)

1. (Consult treating psychologist ‘X’ on a weekly basis for the first four weeks, then fortnightly for the balance of the plan and to abide by all reasonable directions as to treatment. The treatment will focus upon ‘X’)

2. (Consult his general practitioner within 1 week who will establish a Mental Health Care Plan if required and prescribe suitable medication, and)

3. (Take medication as prescribed.)

Order Sought:

The following order is therefore sought pursuant to section 32(3)(a) of the Act:

The charge is dismissed and ‘name of client here’, d.o.b. ‘X’ is discharged into the care of ‘type and name of medical practitioner here’ of ‘address here’ on condition that for a period of 6 months he / she is to:

1. (Eg Consult his treating psychologist at weekly intervals for four weeks, then at fortnightly intervals for the balance of the term, and to comply with all reasonable treatment directions,)

2. (Consult his general practitioner who will establish a Mental Health Care Plan and provide suitable medication if required, and to take medication as prescribed, and)

3. (Take medication as prescribed.)

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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