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:
(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
(i) developmentally disabled, or
(ii) suffering from mental illness, or
(iii) suffering from a mental condition for which treatment is available in a mental health facility,
but is not a mentally ill person, and
(b) 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 provisions 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:
(a) adjourn the proceedings,
(b) grant the defendant bail in accordance with the Bail Act 1978 (NSW),
(c) make any other order that the Magistrate considers appropriate.
(3) The Magistrate may make an order dismissing the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or
(c) unconditionally.
(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.
(3B) If the defendant fails to appear, the Magistrate may:
(a) issue a warrant for the defendant’s arrest, or
(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 (NSW) to issue a warrant for the defendant’s arrest.
(3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately:
(a) issue a warrant for the defendant’s arrest, or
(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 (NSW) to issue a warrant for the defendant’s arrest.
(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.
(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.
(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3).
(4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.
(5) The regulations may prescribe the form of an order under this section.
33. Mentally ill persons
(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 that the defendant is a mentally ill person, the Magistrate (without derogating from any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 1978 (NSW) or otherwise):
(a) may order that the defendant be taken to, and detained in, a mental health facility for assessment, or
(b) may order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the person be brought back before a Magistrate or an authorised officer, or
(c) may discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person.
(1A) Without limiting subsection (1) (c), at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, the Magistrate may make a community treatment order in accordance with the Mental Health Act 2007 (NSW)for implementation by a declared mental health facility in relation to the defendant, if the Magistrate is satisfied that all of the requirements for the making of a community treatment order by a Magistrate under that Act (other than the holding of an inquiry) have been met in respect of the defendant.
(1B) The provisions of the Mental Health Act 2007 (NSW) (other than section 51 (1) and (2)) apply to and in respect of the defendant and that order as if the order had been made by a Magistrate under that Act.
(1C) A Magistrate must, before making an order under subsection (1A), notify the Director-General of the Department of Health, or a person authorised by the Director-General of the Department of Health for the purposes of this section, of the proposed order.
(1D) If, at the commencement or at any time during the course of the hearing of proceedings under the Bail Act 1978 (NSW) before an authorised officer, it appears to the authorised officer that the defendant is a mentally ill person, the authorised officer (without derogating from any other order under the Bail Act 1978 (NSW) that the officer may make in relation to the defendant):
(a) may order that the defendant be taken to, and detained in, a mental health facility for assessment, or
(b) may order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the defendant be brought back before a Magistrate or an authorised officer.
(2) If a defendant is dealt with at the commencement or at any time during the course of the hearing of proceedings before a Magistrate or authorised officer in accordance with this section, the charge which gave rise to the proceedings, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, is to be taken to have been dismissed unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge.
(3) If a defendant is brought before a Magistrate to be further dealt with in relation to a charge as referred to in subsection (2), the Magistrate must, in dealing with the charge, take account of any period during which the defendant was in a mental health facility as a consequence of an order made under this section.
(4) The fact that charges are to be taken to have been dismissed under subsection (2) does not constitute a finding that the charges against the defendant are proven or otherwise.
(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1) or (1A).
(4B) An authorised officer is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1D).
(4C) A failure to comply with subsection (4A) or (4B) does not invalidate any decision of a Magistrate or authorised officer under this section.
(5) The regulations may prescribe the form of an order under this section.
(5A) An order under this section may provide that a defendant:
(a) in the case of a defendant who is a juvenile, be taken to or from a place by a juvenile justice officer employed in the Department of Human Services, or
(b) in the case of any defendant, be taken to or from a place by a person of a kind prescribed for the purposes of this section.
(6) In this section, a reference to an authorised officer is a reference to an authorised officer within the meaning of the Criminal Procedure Act 1986 (NSW).
