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Federal Mental Health Diversion

Act & Section

Crimes Act (CTH) s.20BQ


Mental health diversion


Application before the Local Court


Alternative to punishment – Federal offences


IMPORTANT NOTE: If you have a matter that is to be dealt with in the District or Supreme Court, this process, unless on appeal from the Local Court, cannot be utilised, an entirely different regime in s.20B – 20BP needs to be referred to.

 An application for diversion from the criminal punishment regime, sometime referred to as being “dealt with according to law” can only be made in respect of matters that will be finalised in the Local Court: s.20BQ

 The application to seek diversion from the criminal punishment to treatment is laid out in s.20BQ. Sometimes magistrates will require a plea to be entered, in short, the court can insist that you advise it whether you will plead guilty or not guilty should the s.20BQ application fail.

 A s.20BQ application can only be made if it appears to the court that a person is suffering from a relevant condition at that time. It can be sought by an advocate appearing for a person or a magistrate can instigate their own investigation of the matter.

 There are three mandatory tests that need to be satisfied in order to engage in a successful application:

 1.     The jurisdictional test: that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability.

 If a medical report is prepared and served on the court and the prosecution, stating the person suffers from such a condition, it is usual that the magistrate will be satisfied of the jurisdictional test.

 There are some magistrates who form a view that only a psychiatrist can deliver such a diagnosis. This was certainly true for many years however the law has developed over time and the most recent decision of Jones and Anor v Booth and Anor [2019] NSWSC 1066 has made this point; though it does not say a psychologist will be appropriate in all circumstances – it will be fact dependent.

2.     The second test, sometimes called the balancing exercise is: that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law (which could include a non-conviction finding, with or without a conditional release order).”

In applying this test, the magistrate is not bound by the rules of evidence and can take into account any information which, to them, applies relevant to the consideration of the question of the balancing test.

There is no absolute bright line on what makes an application successful. It is important to take into account, that while this application is available, it may be, in the circumstances of some matters, that to make such an application will be to diminish remorse and contrition; and thereby put other penalties out of reach. An example of this point is making applications in traffic offences. The court is loathed to grant such applications because of the public safety considerations.

3.     The third test is: is that a treatment plan which provides the court with some degree of comfort that the person is being assisted with their condition, such that it will guide and assist them not to offend again.

A treatment plan does not guarantee there will not be further offending, it also does not, and there are no reasons to suggest it should, guarantee the applicant’s condition will be cured. In some instances, the applicant will be suffering from a lifelong condition e.g. schizophrenia.

Although not a condition of the legislation, the application is more likely to be successful if the report writer undertakes to report any breaches of the treatment plan to the relevant authorities during the course of the Order – which is a for a maximum of 3 years.

Following the application, the magistrate may do one of the following:

(a)   Adjourn the proceedings,

(b)   Grant bail,

(c)    Make any other order the magistrate considers appropriate.

If the application for diversion is successful, the magistrate may make an order dismissing the charge and discharge the applicant:

(a)   Into the care of a responsible person (often the doctor who will be monitoring the treatment plan), unconditionally or subject to conditions for up to 3 years, or

(b)   On condition the applicant attend on a person or at a place specified by the magistrate for assessment, treatment or both of the applicant’s mental condition for up to 3 years, or

(c)    unconditionally.

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