Page zoom: (-) | (+) | Normal
Font size: A - | A + | Reset

S32 Step By Step Guide

General legal principles

No requirement for a plea

Under section 32(1), a section 32 application can be made at the commencement or at any time during the course of the proceedings. Section 32 has operation regardless of whether or not a plea has been entered Perry v Forbes (1993)Perry v Forbes (Unreported, Supreme Court of NSW, Smart J, 21 May 1993) and DPP v El Mawas (2006)DPP v El Mawas [2006] NSWCA 154

The requirement that a plea be entered before the determination of a section 32 application may amount to an appellable error. The Public Defender's Office is willing to advise solicitors considering Supreme Court appeal in section 32 matters where the client is, or could be, legally aided.

For further information - Email-

Not necessary for fitness to plead to be determined prior to s32 application

It is only when the court charges the defendant and requires a plea that the question of whether a defendant is fit to plead needs to be determined.

Mantell v Molyneux (2006) NSWSC 955 at 16 (See also Mackie and Hunt (1989) 19 NSWLR 130.)

Intellectual disability is eligible

Part 3 of the MHFPAMental Health (Forensic Provisions) Act 1990 NSW is applicable to people with intellectual disability who do not suffer from a mental illness (R v Mailes [2001] NSWCCA 155).

Further reading - Eligibility

Mild intellectual disability

In Muldrock v The Queen [2011] HCA 39, it was not contested that the appellant had a 'mild' intellectual disability. The High Court found that the District Court judge had aptly described the appellant's disability as 'significant.'

The High Court, citing the New South Wales Law Reform Commission said -

'A person's intellectual disability can be classified as 'mild', 'moderate', 'severe' or 'profound', based upon certain IQ (intelligence quotient) ranges. A further category, 'borderline', is also used to indicate people just above the 'mild' range in terms of intellectual functioning. A person with a 'severe' or 'profound' disability may be unable to learn basic social skills such a speech, walking and personal care, and is likely to require supported accommodation. The majority of people with intellectual disability 'can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community.' These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a 'mild' intellectual disability is inconsequential.'

In relation to the specific circumstances of Mr Muldrock's case, the High Court said,

'The fact that the appellant had engaged in some paid employment and that he held a driver's license does not detract from the assessment of his retardation. The evidence was that he had 'enormous difficulty with employment'. He was unemployed at the time Ms Daniels assessed him. She recommended that he would benefit from 'a properly supervised sheltered workshop environment.' [51]

Further reading - Clients with intellectual disability

Acquired brain injury is a cognitive impairment

ABI is a cognitive impairment for the purposes of section 32 (s 32 (6) (d)).

Further reading - Clients with acquired brain injury

Section 32 is available for traffic matters

The case of Police v Deng ([2008] NSWLC 2) involved a charge of negligent driving occasioning death. A successful section 32 application was made on Ms Deng's behalf. The magistrate wrote to the Road Traffic Authority and recommended that the applicant not be reissued with a learner's permit for a minimum number of years. This approach may satisfy magistrates who are reluctant to deal with traffic matters under section 32.

Procedural fairness

Powers in relation to section 32 are to be exercised with procedural fairness (DPP v El Mawas (2006) NSWCA 154 [74]).

Not affording a lawyer the opportunity to make submissions in relation to section 32 may amount to a denial of procedural fairness and, as such, constitute an appellable error. (Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092.)

Does your client have an appointed guardian?Principles relevant to discretion

Go to top of the page