Mental illness and health issues affect many individuals within our community. The effects of this are that the person suffering the mental condition is often brought into the criminal justice system when they would not ordinarily be a person who has experienced any issue with the law previously.

This will usually result in the person and their family placed under pressure which at the end of the day, if not handled professionally, will only add to what is already a challenge for all concerned.

In circumstances where a person comes before the Court in a criminal matter where that person understands the court process and the difference between right and wrong but still suffers from what might be considered to be a mental health condition, they can be diverted from the criminal justice system (and as such, punishment) in certain circumstances.

People who fall into this category can be dealt with under the Mental Health (Criminal Procedure) Act 1990.

The Legislation


32 Persons suffering from mental illness or condition.

  1. If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
    1. that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

      1. developmentally disabled, or
      2. suffering from mental illness, or
      3. suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and

    2. that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provision of this part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3).

2. The Magistrate may do any one or more of the following:

    1. adjourn the proceedings,

    2. grant the defendant bail in accordance with the Bail Act 1978,

    3. make any other order that the Magistrate considers appropriate.

3. The Magistrate may make an order dismissing the charge and discharge the defendant:

    1. into the care of a responsible person, unconditionally or subject to conditions, or

    2. on the condition that the defendant attend on a person or at a place specified by the Magistrate:

      1. for assessment or treatment (or both) of the defendant's mental condition or cognitive impairement, or
      2. to enable the provision of support in relation to the defendant's cognitive imparement, or 

    3. unconditionally.

The intention of the NSW Parliament in passing the Act

The legislation (as the Mental Health Act) first appeared in 1990 and the (then) Minister for Health said the Act would:

“provide the opportunity for those suffering from a mental illness or a mental disorder to get the care and treatment they need.  The primary objective of this treatment will be to ensure that the individual can have as normal and satisfying a life as possible.  This should ensure that the community is protected adequately from abnormal or threatening conduct of a mentally ill or mentally disordered person.

At the same time the Bill protects the civil liberties of the mentally ill.  Any restriction of personal freedom will be only the minimum necessary for the well-being of the individual or for the protection of others."

See New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 22 March 1990 at 886.

What approach should the Court take in considering the application?

In Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154 (19 June 2006) Spigelman CJ, Handley, J and McColl, JA set out the methodology for considering an application under section 32.

The approach (as set out at [75] by McColl, JA) is most effectively summarised by the posing of the following 3 questions to be considered by the Magistrate:

  1. Is the defendant eligible to be dealt with under the section?
  2. Having regard to the facts alleged or other relevant material, is it more appropriate to deal with the matter under s.32 than according to law?
  3. If the answer to questions(1-2) is in the affirmative, what action should the Magistrate take pursuant to his or her power at s.32 (2) & (3) of the Act.

What orders can the Court impose?

In all cases, the court will not allow the matter to be dealt with under section 32 unless the defence has provided a detailed ‘treatment plan' setting out the treatment strategy for the person including the medical practitioners involved, the frequency of treatment and medication regime.

If the magistrate agrees to dispose of the matter under section 32, the court will not impose a conviction penalty but will order the person to comply with the treatment plan.

If the person fails to do this, the court can call them back and have the matter dealt with according to law which may result in a conviction or other punishment.

Contact Sharon Ramsden on or phone (02) 4626 5077.