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S32 Step By Step Guide

If unsuccessful...

If your application is unsuccessful there are a number of options you may wish to explore.

    These include:
  • Making a second application
  • Exploring whether or not your client has the capacity to enter a plea
  • Appealing to the District or Supreme Court

Client entering custody

    With your client's permission:
  • Notify Corrective Services of your client's disability by speaking with the senior Corrective Services officer at the court complex, and
  • Inform Statewide Disability Services that your client is entering custody

Statewide Disability Services is the part of Corrective Services that assists people in custody who have disabilities. You should email them to advise that your client has intellectual disability and is entering a correctional facility. They can then follow up your client and assess whether or not your client is eligible for the Additional Support Units in some Correctional Centres.

Contact Statewide Disability Services by email on

Please refer to - examples of DIY support plans

Second application

The legislation does not prohibit the making of a second section 32 application. If your initial application is unsuccessful, you may want to consider an adjournment to seek additional supports for your client. Then additional elements could be incorporated into a revised support plan.

Capacity to plead

After an unsuccessful application, the question of whether or not your client has capacity to enter a plea to the charge should be considered. If your client has capacity then the normal procedures in the Local Court will follow, with the matter to proceed to either hearing or sentence. If the matter is to be for sentence, then relevant material and submissions made in support of the section 32 application can be relied upon in most circumstances.

Capacity issue/stay application

At the conclusion of a section 32 application, if the defendant is not fit to plead because of their intellectual disability, an application for a discharge on that basis should be made. (Mantell v Molyneux (2006) 165 A Crim R 83.) Unlike the higher courts, there is no statutory enactment as the law currently stands about what to do with people unfit to plead in the Local Court.

Appeal to the District Court

If your client's section 32 application was unsuccessful and your client has been convicted, then an appeal against sentence or conviction could be made to the District Court. Appeal is by way of rehearing on the basis of the evidence given in the Local Court. Generally, fresh evidence can only be admitted with leave. A further section 32 application could then be made to the District Court.

Appeal to the Supreme Court

If a magistrate errs in the exercise of their discretion, then an appeal to the Supreme Court by way of summons under section 52 of the Crimes (Appeal and Review) Act 2001 (NSW) should be considered.

If the error is one of both law and fact, then an appeal to the Supreme Court under section 53 of the Crimes (Appeal and Review) Act 2001 (NSW) should be considered.

IDRS appreciates the complexity and significant resources that may be involved in any Supreme Court appeal but encourages practitioners to consider this course, particularly in cases where such appeals may have wider application. The Public Defenders Office is willing to advise lawyers considering a Supreme Court appeal where your client is, or could be, legally aided.

After an applicationBreaches

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