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Section 32 Defence

During this case I raised the possibility of a Section 32 defence. I cannot remember the date but when I find some paperwork I will pop back in here and add the details.

According to Sydney Criminal Defence Lawyers website:

4: Determining Fitness to be Tried

The Court must conduct the inquiry into whether the person is fit to be tried. [MHA s10]

The question of a person’s fitness to be tried is determined on the balance of probabilities. [MHA s6] The onus of proof does not rest on any particular party [MHA s12].

Before conducting an inquiry, the Court may do any one of the following:

i) Adjourn proceedings
ii) Grant bail
iii) Remand the accused in custody for a period not exceeding 28 days
iv) Request the accused undergo a psychiatric examination
v) Request that a psychiatric report be obtained.
[MHA s10]

If the Court considers that it is inappropriate to punish the accused, having regard to the trivial nature of the offence and/or the nature of the person’s disability, the court may dismiss the charge. [MHA s10]
If a person is found unfit to be tried the court must refer the person to the Mental Health Review Tribunal. Pending the determination of the Tribunal the court may:

(i) Adjourn proceedings;
(ii) Grant bail; or
(iii) Remand the person until the determination of the tribunal has been completed.
[MHA s14]

I raised the possibility based on the fact that I suffer huge blanks in my memory when I am under stress or ill. This condition appears without warning and often without my knowledge until some time after. This is not an occasional symptom. It happens every day and sometimes quite often during the day when I tire.I also suffer confusion from the side-effects of medication. I asked for the section 32 to be applied to my case.

I was not interested in avoiding sentencing (in a case where I was innocent anyway) as having my limitations recognised when I froze up and could not hold ideas. This occurred constantly throughout the hearings.

Our first lawyer, Heath Bonnefin, was quite worried about applying the section 32 until he spoke to my case worker from Aged Disability Support Services and several other people I had known a long time. He was also present (or at the end of the line) for some of my flurries of emotional and manic emails when I had a break-down from anxiety. He became convinced I was right to make the attempt but then he quit.

That raised the anxiety levels and I became less coherent. I was homeless and in refuges at the time and really suffering. Incoherent and emotional emails were shooting to every address on my contact book. I was given Micheal Nash as a solicitor but as he seemed to be an advisor of the prosecution team. I asked him if defending me was a conflict of interest. His immediate agreement suggested I was right and after he left I chose David Spencer from the phone book and we moved on.

David Spencer was actively hostile to the section 32 appeal. He decided he knew more than the psychiatrist and probably had a load of class distaste for a member of the poor and hapless as well. He totally forgot what a section 32 is designed to do. In court at the section 32 hearing he breezed over it apologetically and disparagingly when speaking to the magistrate. The magistrate then ignored all the decades of evidence and a brief from a psychologist refusing to recognise the condition. David had also been the recipient of a flurry of worried emails but the outcome that he became hostile, refused to recognise any illness at all and became determined to dump me on the stand and leave me to my fate in being questioned. He either did not believe I was hampered in the way I said I was or just did not care. We lost hearings we should not have lost and I fought one alone I should never have even turned up to.

Brian Quinn raised the section 32 appeal again in his office on July 24th when he was asking me what I wanted to do in the appeal hearing. According to him I had only two directions to go. One was to regurgitate the evidence from the final hearing (I have covered my attempts to get evidence re-introduced at this point)and the other was to rebirth the section 32. Brian took a different tack in trying to talk me out of that plan. He told me that if I were to attempt to get a section 32 applied I would have to admit that I was guilty and that I had been under some confusion or blankness when the incident happened. This is interesting and was one of the big markers that had me send the written challenges to him that caused him to quit. A section 32 is normally exactly the opposite of what he told me it was. You can see from what I have already written and from the link supplied at the top of the post that this section is primarily about people who have conditions which prevent them from raising a defence. A person who becomes covered by Section 32 does not plead at all.

8) Special Hearing: If it appears to the jury that the person committed the offence but was mentally ill at the time, the jury must return a verdict of not guilty on the grounds of mental illness [MHA s38]

If found not guilty by reason of mental illness, the person is to be detained in strict custody for a period determined by the court. [MHA s39]

It is unavoidable not be impressed with the fact that the lawyers and magistrates have moral issues with people who ask to be dealt with under Section 32. They actively harass and pressure the defendant. It must be said that a lot of mentally ill people have to be falling through the net because of the court at Wyong’s attitude to this defence. The Court and it’s officers are actively making medical decisions into their personal moral one’s and sabotaging efforts of people to use a legal tool that was designed expressly to protect them from this very activity! The alternative is that a lot of lawyers on the Central Coast of NSW are not able to understand the complexities of the law and spent a lot of their time stumbling around a court room trying to ensure nothing challenging ends up on their plate

I may have been unfair to the solicitors on this page. Speaking to another about the act I was again informed that the accused pleaded guilty and then stood before the court with the understanding that their crime had been comiteed while in some form of mental fog. When I read the act myself I see that the main section is about people who are not able to fight a case or make a plea and where the crime is simple or unproven the court moves out of the legal system and allows mental health professionals to care for them. I am going to follow this up with some other defence lawyers who have the Mental Health Act on their sites and see what they say if they take the time to answer me.

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