How To Get Cases Dismissed Due to Mental Health

A successful section 32 Mental Health Application in Court can result in the dismissal of criminal charges, resulting in no criminal conviction. This can apply where you suffer a mental health disorder, where you satisfy the requirements of section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

This means, even for serious criminal offences, before making the s32 mental health application, you do not have to enter a plea of guilty, or not guilty. Where the Magistrate grants your s32 application, you will not be required to go through any further court proceedings in relation to the criminal charge(s).

What Happens After the Court Grants Your Section 32 Application?

After a Magistrate dismisses your criminal charges & discharges you under the s32 provisions, the Magistrate can then do any one of the following:

  1. Release you with no conditions; or
  2. Release you with conditions. Conditions usually include a requirement you continue with treatment with your psychologist or psychiatrist.
  3. Release you on condition you attend to someone for assessment of your mental state

What are the Essential Requirements for a Successful s32 Application to Get Charges Dismissed?

There are 2 tests that a Magistrate must be satisfied with, in order to discharge and dismiss your case under a s32 mental health application.

The First Test

Under the first test, each of the following requirements must be met:

  • you suffer a developmental disability, mental illness, mental condition for which treatment is available in a mental health facility (either as an inpatient or outpatient basis). The condition could include, major depression, anxiety disorder PTSD, schizophrenia etc; and
  • you suffered this condition at the time of the alleged offence, or any time during the court proceedings; and
  • you are not a harm to yourself or members of the public.

You the above criteria are not first met, you will be automatically prevented from succeeding in this mental health application.

In addition to the above requirements, to strengthen your case, it’s critical to obtain a section 32 expert report from an experienced psychologist or psychiatrist. This report should comment on the above essential requirements, in addition, it should provide a detailed treatment plan.

Important to note, generally, a psychologist is unable to provide a diagnosis or opinion on psychiatric mental disorders, such as schizophrenia. For psychiatric mental health disorders, a s32 report should be obtained from a psychiatrist.

The expert report should also attach a CV, and comment on whether the expert has seen and agrees with the expert witness code of conduct at the beginning of the report. This is to ensure that it will get accepted into evidence in your mental health application.

The Second Test

Under the second test to a section 32 mental health application, the Magistrate must consider the public interest in diverting a mentally disordered person from the criminal justice system.

Your charges will be dismissed, and you will be discharged under s32 if the Magistrate considers it more appropriate to deal with your case under s32, rather that according to the criminal justice system.

The Magistrate here, performs a balancing exercise. On the one hand, the Magistrate will look at the public interest in punishment being imposed for the protection of the community. On the other hand, he/she will look at the public interest in diverting the mentally disordered away from the criminal justice system.

As a general rule, the more serious the alleged offending conduct is, the greater the public interest in punishment for the protection of the community. Therefore, it will be considered less appropriate to grant the s32 application. This means, the less serious the conduct is considered objectively, the stronger the argument is in favour of granting a s32 application, dismissing your charges.

The Magistrate can reduce the amount of weight he/she gives to the seriousness of the alleged offending conduct by the extent you were disabled from being able to control it. This can apply where the expert report expresses the following two points:

  1. The alleged offending conduct was contributed by your mental disorder; and
  2. The degree to which your mental disorder contributed to your disability to control that conduct.

This can then strengthen your argument in favour of getting charges dismissed under the s32 application. This legal argument was expressed with approval by the then Chief Justice Spigelman in the case of DPP v El Mawas [2006] NSWCA 154.

On the other hand, when the Magistrate is then considering whether it’s more appropriate to divert you away from the criminal justice system, it will look at the following main point:

  • Whether an order under s32 dismissing charges, and releasing you on conditions, in order for you to be treated, will produce a better outcome for you, and the community (in light of your mental health disorder).

Here, the Magistrate will be more inclined to granting the s32 order where:

  • You suffer a high degree of severity of your mental disorder; and
  • Treating you according to the criminal justice system will likely cause more harm to your treatment and recovery. This is because, subjecting you to the court process, and possible conviction and imprisonment, it will be counterproductive to your treatment. In this context, you will be more likely to re-offend, creating greater potential harm to the community.

On one view, generally, those who suffer certain mental disorders are less able to cope with life demands and stressors of the sort a conviction represents. On an argument in favour of granting the s32 order, it will provide the encouragement and positive start to continue with treatment without distractions.

It’s important to remember, that any argument you run before a Magistrate in court should be backed up with some evidence. The best way to do this is with the use of a well written expert report addressing all the key points.

What Can Happen if you Fail to Comply with the Court Ordered Conditions?

Once the Court dismisses your charge(s) under s32, it can require you to return to court within 6 months of making the order. The court can do this if it suspects that you have failed to comply with any of the conditions it imposed when it dismissed your charge(s) under the s32 application.

If the Court finds that you have failed to comply with any conditions it has imposed within the 6-month period, the Magistrate can re-open your charges and deal with you in the normal way. This means, it can hand down a sentence resulting in a criminal conviction or term of imprisonment.

The law provides a range of mental illness defences for any criminal charge. For more information on this see defences to mental illness.

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