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S32 Step By Step Guide

Instructions and making the application

Step 1 Getting instructions

Your client cannot give instructions

It is always preferable to seek your client's instructions about making a section 32 application and every effort should be made to achieve this. However, it is not strictly required according to the wording of the MHFPAMental Health (Forensic Provisions) Act 1990 NSW. Ideally, a section 32 application is made prior to entry of a plea, although a section 32 application can be made at any time during the course of the matter. Section 32 is available whether or not your client is fit to plead. Mackie v Hunt (1989)Mackie v Hunt (1989) 19 NSWLR 130.

If your client cannot give instructions, then one option you may want to consider is seeking leave to appear amicus curiae. As an amicus, you can only ensure that the court is aware of the information about your client that it should be aware of in making its decision. You cannot advocate for your client as such. Some practitioners are of the view that while the legislation may allow the lawyer to raise section 32 regardless, the legal professional rules would not.

Your client instructs you not to make a section 32 application

If your client gives you instructions that they do not want you to make a section 32 application and you are of the view that there are grounds for the making of such an order, it will be a matter of judgement as to whether or not the application should go ahead.

In IDRS's view, if your client's instructions are rational and soundly based, then those instructions should be acted upon even if it means that your client will be dealt with according to law. However, IDRS stresses that it is important that you take adequate time to listen to your client and find out why your client does not want the application to be made.
For example, it may be that your client is uncomfortable with acknowledging their disability and does not understand the reason for this. It could be that there is an aspect(s) of the proposed support plan that your client does not want to adhere to. In such cases, discussions with the service providers and re-drafting of the support plan might alleviate your client's hesitations. Often clear communication and effort to sort out issues will resolve the problem.

Step 2 Flagging the application with the court and the prosecutor

At the first (or next) court mention, inform the magistrate that you intend to make an application under section 32 of the MHFPAMental Health (Forensic Provisions) Act 1990 NSW and, if necessary, apply for an adjournment to obtain reports and a support plan to assist the application. It may take eight or more weeks to source reports, so be realistic about the length of adjournment you seek.

It is not unheard of for some magistrates to indicate to lawyers at the time they initially flag the application with the court that the application will not be entertained favourably. All section 32 applications should be dealt with in accordance with the principles of procedural fairness and without bias. Such a comment is not indicative of either. IDRS suggests that it may be appropriate to ask the magistrate to disqualify him or herself from hearing the matter or for you adjourn the matter and seek advice from IDRS or the Public Defenders.

Contact details - IDRS contact details

Contact details - Public Defenders Office

Step 3 Minimising court appearances for your client

Often a section 32 application will involve numerous court appearances for your client, with not a lot happening on each occasion. It may be of benefit to your client to be excused if it is unlikely that the application will go ahead on the next occasion. This might be appropriate when you have referred your client to ADHCAgeing, Disability and Home Care (ADHC)
ADHC is the main agency that provides services to people with intellectual disability in NSW.
ADHC Contact details:
or another service provider and the purpose of returning to court is to inform the court of the status of the application rather than to finalise the matter.

Seeking markings

Consider seeking a marking such as 'not before 12 pm' or '2 pm' for your client's matter for the next court appearance. This will save your client the stress of having to wait around a busy courthouse with many other stressed people. A later time in the day for the hearing of the substantive application will also allow the magistrate to devote more time and attention to the details of your application.

Having your client and supporter on standby

Sometimes, in spite of your best efforts to minimise appearances for your client, things will not go according to plan. You may have an ever increasingly distressed client in the foyer of a busy court. In such instances we recommend your client and their supporter wait at a calmer location nearby such as a coffee shop or a park. They can be called by mobile phone and asked to return to court at an appropriate time. Sometimes a brief walk outside the courthouse environment will be enough to settle someone down.

Step 4 Talking to the prosecution

It is always helpful to have the prosecution on side before you walk into court. Contact the prosecutor beforehand and explain your client's situation to them. Outline how you intend to prove your client's disability and what supports will be put in place. Discuss their concerns with them.

Amending the alleged facts

The magistrate must take into consideration an outline of the facts alleged by the prosecution. The prosecution may be amenable to amending the alleged facts to something that casts events in a more neutral light. It is best to seek any proposed amendments to the facts in advance of the court date rather than at the bar table.

Remember, you do not have to admit the facts, so always refer to them as 'alleged facts'.

Step 5 Tendering documents

Tender all documents before you make submissions. Some courts set a timetable for service of documents on the prosecution. If you are unable to comply with the timetable, you should notify the prosecution and explain why you cannot comply. If the magistrate has not made this order and you have a lot of material, it is a good idea to provide the prosecution with a copy in advance to allow them time to consider the material.

Some courts will require that practitioners provide the registry with a copy of any documents to be tendered in advance of the court date. If you have already provided the court with documents, you should still formally tender the documents in court so that a list of documents that have been tendered appears on the record.

The types of documents normally tendered in support of a section 32 application will be a psychological assessment or other document to prove that your client has the relevant disability, support plans and other documents from service providers, reports from any treatment providers such as counsellors or doctors, and in some cases documents from family members. (See Part 6: Obtaining evidence, services and a support plan.)

Consider preparing a chronology if it will be of assistance to the magistrate, particularly in cases where there are voluminous papers. Alternatively, you may choose to draw the magistrate's attention to the relevant sections of the documents by referring them to specific portions of important documents in submissions.

Allow the magistrate time to read the reports before embarking on your submissions.

Step 6 Calling evidence

Generally evidence in section 32 applications is by way of documentary evidence. However, there may be cases where it could be of assistance to call evidence from someone other than your client such as a family member. It may be useful if there is something about your client's circumstances that will not be covered in a report that could potentially link the offending behaviour to your client's disability.

Consider the example of a client in his fifties who approached a young girl at a bus stop who has a key ring attached to her backpack and said, 'Nice key ring. Can I play with it?'.

Without knowledge of this client's disability and his social isolation resulting from the death of his parents, coupled with the fact that this client is an avid collector of key rings, these actions could be cast as predatory behaviour.

Collecting key rings is something that is unlikely to be commented upon or known by a report writer. A case worker or family member may be best placed to give brief evidence on such habits. They may even bring the key ring collection to court to show the magistrate. Providing the court with such information has the potential to recast the behaviour in a less sinister light.

Consider whether or not it may be helpful to have a key person involved in the support plan or a family member present in court to demonstrate that your client is supported regardless or not of whether they are required to give evidence.

Principles relevant to discretionPossible submissions

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