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S32 Step By Step Guide

No requirement to enter a plea

An application under section 32 can be made at any time during the proceedings, including at the conclusion of a contested hearing. Entering a plea is not required for a Section 32 application. Section 32 is most commonly raised by the defendant's lawyer, but it can be raised by any party to the proceedings. Sometimes a magistrate, of their own motion, may apply the provisions of section 32.

You should flag any potential application with the court at the earliest opportunity after you are satisfied that a section 32 application is appropriate in the circumstances of the particular case.

Please see Part 8: Making the application and submissions for more information on flagging the application.

It is not necessary for a plea to be sought or entered before a section 32 application is made ( Mackie v Hunt (1989)Mackie v Hunt (1989) 19 NSWLR 130.; Perry v Forbes (1993)Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993); DPP v El Mawas [2006] NSWCA 154).

It is suggested that it may be impermissible to require a guilty plea to be entered prior to the determination of a section 32 application. This is because it would have the effect of requiring the defendant to self-incriminate in breach of section 36 MHFPAMental Health (Forensic Provisions) Act 1990 NSW. (See Part 7:legal principles for further discussion.)

Charges - Commonwealth mattersDecisions for the Magistrate

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