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) ; Perry v Forbes (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 MHFPA . (See Part 7:legal principles for further discussion.)
Charges - Commonwealth mattersDecisions for the Magistrate