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S32 Step By Step Guide

Getting evidence, services, support plan

The evidence required to support a section 32 application is directly linked to the decisions that the magistrate must make.

    That is:
  • the jurisdictional question or finding of fact that your client is a person who is 'cognitively impaired' or a person who has another relevant condition.
  • the discretionary question of whether it is more appropriate that the person be dealt with under section 32 rather than according to law
    Usually you will need to obtain evidence to show that your client is a person with a cognitive impairment, such as intellectual disability, or another relevant condition.

    Evidence relevant to the discretionary question of persuading the magistrate that it is more appropriate to deal with your client in accordance with section 32 may include:
  • showing that your client has appropriate supports or services to meet their needs that with these supports the likelihood or frequency of further charges may be reduced ie - a support/treatment plan
  • the legislation does not require a link between disability and the alleged offending conduct but demonstrating such a link may be useful. Additional reading: Part 9

Support plan v treatment plan

In applications for people suffering from a mental illness, the term 'treatment plan' is frequently used.

However, as intellectual disability is not a disease that can be medically treated, the term 'support plan' is more appropriate when making section 32 applications for people with intellectual disability.

You should be alert to the fact that magistrates may be more familiar with the term 'treatment plan'.

Some evidence will be relevant to both satisfying the jurisdictional question and persuading the magistrate to exercise their discretion in your client's favour and deal with the matter under section 32.

Identifying services and supports may be the most difficult aspect of the preparation for a lawyer who is unfamiliar with disability services. Information is included about obtaining disability services and support plans. Mainstream services may well be an integral part of either existing or potentially beneficial supports for your client.

Often family members or disability or other workers involved with your client will be able to assist in the evidence gathering process. However, lawyers need to play an active role in this process particularly in cases where your client has no one else to assist.

Keeping Charges in the Local CourtLevel of evidence required

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