Chapters poster

Download your Mental Health Rights Manual poster here

print-text Print this section

Chapter 6 Section D: Criminal cases in the courts

6D.1: Overview of the courts, crime and mental illness

This section of the Manual provides you with information about how criminal cases are dealt with in the courts. It has separate sections on:

6D.1.1: The criminal courts

There are a number of different courts that deal with criminal cases. Less serious crimes are dealt with by the Local Courts. More serious crimes are dealt with by two higher courts: the District Court and the Supreme Court. The Supreme Court deals with the most serious crimes.

If you are facing criminal charges in the District or Supreme Court, and you plead not guilty, there would normally be a jury present as well as a judge.

Decisions by the Local Court in criminal cases can be appealed to the District Court. Similarly, decisions of the District Court can be appealed to the Supreme Court and then to the Court of Criminal Appeal.

6D.1.2: Crime and mental illness

You are said to have committed a crime when it is proven beyond reasonable doubt that you have done something that is prohibited by criminal law which is punishable by a court. In general, to be found guilty (‘convicted’) of a crime you must have deliberately (‘with intention’) carried out a prohibited act.

If a mental illness prevents you from having that intention, you cannot be found guilty of the crime. If you do not even understand what the crime is and are therefore not able to either plead guilty, or not guilty to the allegation that you committed the crime (or not able to understand enough to talk to a lawyer about it), then you are said to be ‘not fit to be tried’.

In these circumstances, you may not be allowed to go straight back to the community.

Click here to find out about your rights, and the processes that apply in NSW if you are found either not guilty of a serious offence dealt with in the District or Supreme Courts because of mental illness or if you are found to be unfit to be tried of an offence in the same courts.

In NSW, if you are found not guilty of an offence because of mental illness or you are found not fit to be tried, you become a forensic patient.

The next section of this Chapter on Local Courts gives you general information about the Local Courts and then about how the Local Courts deal with people who have been charged with less serious crimes and who have been diagnosed with a mental illness or a mental disorder .

6D.2: Local Courts

Local Courts, sometimes still called Magistrates’ Courts, deal with the less serious crimes, including traffic offences, and with the first stage of trials of more serious crimes.

Local Courts also deal with cases other than criminal cases. They deal, for example, with Apprehended Violence Orders (AVOs), and some civil law matters, such as small debt claims.

Although Local Courts deal with less serious crimes, they are still very formal compared to tribunals such as the Mental Health Review Tribunal.

Each Local Court is controlled by a magistrate who is the judge in the Local Court. There are formalities (‘etiquette’) about being in Local Court that you can read about on the next section.

6D.2.1: Court ‘etiquette’ (behaviour in court)

When you are in court, you should call the magistrate ‘Your Honour’.

The magistrate and other court officers, such as the prosecutor, are likely to call you by your formal title and family name, for example, ‘Mr Jones’ or ‘Mrs Palaos’ or ‘Ms Ng’.

It is also usual for everyone to stand when the magistrate comes into the courtroom and when he or she leaves the courtroom. This is to show respect for the institution of the court. You will also be expected (and asked) to stand if the magistrate speaks directly to you in the court.

If you have never been to court before, try to go along to your Local Court before your case is being dealt with so you can see what goes on.

For a list of where the Local Courts are, click here.

The next page has more about how the Local Courts deal with criminal cases, click here to go to the next page.

6D.2.2:Criminal cases in the Local Courts

Local Courts deal with criminal cases in two ways, depending on the seriousness of the crime.

If you are alleged (suspected) to have committed a serious crime that will, if you plead not guilty, have to be dealt with by a judge in the District or Supreme Court, and a jury, you will first be taken to a Local Court to be formally charged. The Local Court magistrate may also have to decide whether you should be given bail (released back into the community usually on certain conditions) or have to stay in custody. You may have to go back to the Local Court and appear before the magistrate several times even if you plead not guilty before your case gets sent to the Supreme Court or District Court where a different judge will deal with it.

If the crime is less serious, all of the court hearings will take place in the Local Court until you are found not guilty, or are found guilty and sentenced. There are no juries in criminal hearings in the Local Court.

Sometimes, depending on the crime you are charged with, you can decide whether to have the case dealt with by the Local Court or have it sent to a higher court for trial with a jury if you plead not guilty, or (if you decide to plead guilty) for a hearing by a single judge who will determine what penalty (‘sentence’) will be given to you.

The Local Court can take into account if you have a mental illness and are facing criminal charges. To find out more, go to the next page of the Manual .

6D.2.3: If you are mentally ill and facing criminal charges in the Local Court

Mental illness is dealt with in a different way in the Local Court from the Supreme and District Courts.

The higher courts can decide that you are ‘not guilty due to mental illness’ or are ‘not fit to plead’ and particular processes flow from these decisions.

With criminal cases in the Local Court, there is no process for dealing with a person who is ‘not fit to plead’. If a person is ‘not fit to plead’ in a Local Court, other than dealing with them under section 32 or section 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the magistrate has to let them go.

You can plead not guilty because of mental illness in the Local Courts in NSW, but it is extremely rare for a magistrate to decide that a person is not guilty because of mental illness. If a magistrate decided that a person is not guilty because of mental illness the outcome would be the same as any other ‘not guilty’ finding: the criminal charge would be dismissed and the person would be free to leave the court without a criminal conviction or penalty.

The usual way magistrates in the Local Court deal with people with mental illness who are charged with criminal offences is by making a section 32 orderor a section 33 order . (This refers to sections 32 and 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW)).

Section 32 applies if you have (or had at the time of the alleged offence) a mental condition or developmental disability that does not constitute mental illness as that term is defined in the Mental Health Act 2007 (NSW), whereas section 33 applies if you have (or had at the time of the alleged offence) a mental illness as defined in the Mental Health Act 2007.

If you are in the Local Court facing a criminal charge and you want the magistrate to deal with your case by getting you treated for your mental illness, your lawyer should make a section 32 application. Section 32 allows a magistrate to let you go on condition that you attend a specified place for treatment or you agree to go into the care of a particular person. If you agree to the condition, no conviction is recorded. The magistrate makes this sort of order after he or she is given a treatment plan that has been designed for you by a suitably qualified person, who is usually a health care professional. Under section 32, the magistrate can also let you go with no conditions.

For more about section 32 orders, click here .

Section 33 only applies if you are found to be mentally ill under the definition in the Mental Health Act 2007 (NSW). If you are dealt with under section 33 the Court may order that you are referred to a psychiatric unit or hospital for further assessment, or it may order that you be discharged into the care of a responsible person on conditions or unconditionally. The Court also has the power to make a Community Treatment Order if it is provided with a treatment plan by a Mental Health Facility.

If you are ‘Ordered’ to go to a Mental Health Facility for assessment, as a result of that assessment, you can become an involuntary patient or be returned to the Local Court if you are not mentally ill under the Mental Health Act 2007 (NSW).

For more about section 33 orders, click here.

If the magistrate does not deal with you under section 32 or section 33, you can still give the magistrate the details of your mental illness as part of what is called a ‘plea in mitigation’ (that is, the things you want the magistrate to consider before you are sentenced). This can include reports from health care professionals and community mental health services. This sort of information might also be included in a pre-sentence report (usually prepared by the Probation and Parole Service), which is sometimes requested by the magistrate before you are sentenced.

The Court can also take a range of other issues into account before sentencing you, some of which may be related to your mental illness, for example, your social circumstances. You should discuss anything you think may be relevant with your lawyer so that they are able to put any relevant information before the Court.

6D.2.4: Section 32 orders

You should try to have a lawyer to represent you if you want to make an application for a section 32 order.

For information about how to find an appropriate lawyer, click here.

One of the reasons for this is that you must have a treatment plan before a magistrate will make an order under section 32. The lawyer is not the person who prepares this plan, but he or she is the best person to arrange for the plan (if you don’t already have one) to be prepared by the treating team in the mental health facility or by a psychiatrist in the community and to make sure that you are at court when you have to be.

A treatment plan could include the following information about you:

  • Your background, personal situation, including information about your childhood, education and/or training, housing history, relationships with other people, employment history and any history of drug and/or alcohol use.
  • Your medical history including any diagnoses of mental illness.
  • Results of psychometric testing of you.
  • DSM-IV Global Assessment of Functioning Score and diagnoses.
  • Your prognosis, that is, the expected outcomes from your treatment as set out in the plan.
  • Resources needed to treat and support you according to the plan, including who will provide the treatment and support and who will pay for it.
  • How suitable you are for a treatment plan.
  • How motivated you are to have the treatment set out in the plan.
  • How you will be able to comply with the plan.
  • Who will be responsible for putting the plan into effect.
  • What would be a major reportable breach of the plan.
  • What will happen if you breach (fail to follow through with) the plan.
  • Information about what sort of ongoing treatment is planned once the section 32 order ends.
  • Your consent to the plan.
  • Your version of what happened that led to you being charged with the criminal offence.

If the magistrate is satisfied that the treatment plan is appropriate, and that you understand the plan, and are willing to keep to the plan, he or she will discharge you (let you go) on condition that you keep to the plan.

If you don’t keep to the plan, this will be treated as a breach of the section 32 order and you can be brought back to court and be dealt with for the original criminal offence you were charged with. If this happens, it will be very difficult for you or your lawyer to convince the magistrate to continue the section 32 order. If the magistrate won’t let the section 32 order continue, he or she will then hold a hearing into the criminal charge and, if you are found guilty, you could then be fined, put on a bond or sent to prison to serve a period of time in prison for the offence.

6D.2.5: Section 33 orders

Section 33 is different to section 32 because the magistrate must have evidence that you are ‘mentally ill’ under the definition found in the Mental Health Act 2007 (NSW).

If you are charged with an offence that can be dealt with in the Local Court, and the magistrate decides to deal with you under section 33, usually he or she will order you to be taken to a local psychiatric unit or hospital for assessment under the Mental Health Act 2007 (NSW). This is not a voluntary process and you can be taken for the assessment even if you don’t want to go.

The other option is for the magistrate to make a Community Treatment Order. For more about Community Treatment Orders, click here.

A third option is for the magistrate to discharge you (let you go) into the care of a ‘responsible person’, usually with conditions. This doesn’t happen very often, and won’t happen unless there is strong medical and other evidence presented to the magistrate supporting this.

When a hospital assesses you under a section 33 order from a magistrate, it is exactly the same as any other initial assessment under the Mental Health Act 2007 (NSW) and your rights and obligations are exactly the same.

If at least two doctors (one of whom must be a psychiatrist) decide that you are not mentally ill under the Mental Health Act 2007 (NSW), then you will be sent back to the Local Court and again have to appear before a magistrate.

That magistrate will then deal the criminal charge. The magistrate can do one of two things:

  • Make an order under section 32, but this requires a treatment plan, and you would need the magistrate to delay the hearing to have that prepared unless you already have one.
  • Start the hearing by asking whether you are guilty or not guilty to the criminal charge.

If you are in custody, the Justice Health Court Liaison Service, found at the larger Local Courts, can help you to get the information you need to give to the magistrate to convince him or her to make a section 33 order.

6D.3: Legal advice and representation

You should get legal advice before you plead guilty or not guilty to a criminal charge in the Local Court or make any other decision when you have been charged with a criminal offence.

The magistrate will usually agree to at least one adjournment (delay in the hearing) to give you time to get legal advice before he or she requires you to indicate whether you are pleading guilty or not guilty.

Legal help (both advice and some representation) is available for criminal matters from Legal Aid NSW. Legal Aid NSW has Duty Solicitors in Local Courts.

If you are Aboriginal or Torres Strait Islander you can also contact the Aboriginal Legal Service NSW/ACT (ALS).

Legal Aid NSW and the Aboriginal Legal Service generally provide free advice and representation, subject to their guidelines. Legal Aid NSW often asks for an amount of money as a contribution to the cost of the legal services but this will depend on your financial and other circumstances.

If you can afford to, you can also choose to pay for legal advice and representation through a private lawyer. There are lawyers who specialise in criminal law. You can contact the Law Society of NSW to find one in your local area.

Some Community Legal Centres have lawyers who represent people (for free) in criminal cases, and most provide free legal advice (usually on particular days of the week).

LawAccess gives limited, over-the-phone advice on all legal problems and can also refer you to a lawyer. This is also a free service.

If you are homeless or at risk of being homeless, and are facing a criminal charge in a Local Court in Sydney or its suburbs, you can contact the Homeless Persons’ Legal Service for free legal advice and representation.

It is strongly advised that you get an experienced criminal lawyer if you want to make an application under section 32 or section 33, even if you do have help from your usual treatment team or the Court Liaison ServiceIf you are in custody, Legal Aid NSW will usually provide free representation.

You should ask your lawyer about diversionary options.

Legal Aid NSW also runs the Prisoners Legal Service, click here for more information.

Updated January 30, 2015