Surge in criminal carges dismissed on mental health grounds

The amount of people having criminal charges dismissed on mental health grounds in the Local Court of NSW has snowballed, with cases increasing by 50 per cent in the past four years.

The amount of people having charges dismissed on mental health grounds in the Local Court of NSW has surged, with cases increasing by 50 per cent in the past four years, data shows.

The figures have prompted former magistrate David Heilpern, a 22-year veteran of the bench and now Southern Cross University’s Dean of Law, to call for a review into the requirements for a mental health application.

“You have to ask yourself, with that sort of explosion, is it a situation where people are thinking: ‘How can I get out of liability of this? I’ll go mental health’,” Professor Heilpern said.

And mental health defences are especially common in affluent areas of Sydney such as Waverley and Manly, with senior legal sources saying it can cost anywhere from $3500 up to $6000 to hire a lawyer to secure it – an amount unaffordable to many.

The Daily Telegraph can reveal 3521 cases ended with charges dismissed under the Mental Health Act in 2024, a number that has been rising year on year, with only 2350 in 2020, Bureau of Crime Statistics and Research numbers state.

Prof Heilpern said the benchmarks to have charges dismissed under the act in what is called a section 14 application ought to be looked at. “This is exploiting what some people would perceive as a loophole,” he said.

Sydney model Paris Ow-Yang’s lawyer pushed for a section 14 ruling in court after she was charged with assault.

“That’s not suggesting there are not genuine cases – of course there are.

“The threshold ... is arguably too low, there should be a greater hurdle than just suffering from a condition.

“I think it’s worth having a very careful look at whether the bar is too low to escape liability.”

Prof Heilpern said any overuse of mental health applications could undermine legitimate claims.

“It would be a shame to throw the baby out with the bathwater,” he said.

“Currently, clearly my view is there are just too many of these, and there’s a risk the genuine claims could get lost.”

To secure a section 14, someone needs to prove they had a mental health or cognitive impairment at the time of an offence.

Leading law academic David Heilpern, who used to be a magistrate, says mental health applications ought to be reviewed in court.

They must also suggest a suitable treatment plan that is supported by a health professional.

Victims advocate Howard Brown said of the rise of section 14s: “There is no question that it is problematic”.

According to the data, Waverley Local Court had 98 cases where people had their charges dismissed in 2024, Manly court had 97, while Newtown court had 48.

Downing Centre Local Court had the most cases at 445 due to the amount cases at the CBD complex.

Former St George Illawarra NRL player Talatau Junior Amone’s lawyer argued in court he was suffering from a mental impairment when he spat on a woman.

In October 2024, singer Kamahl had a charge of intimidation dismissed after a Sutherland Local Court magistrate decided the offence should be dealt with on mental health grounds.

A court was told the 89-year-old had gone off anxiety and depression medication when he allegedly made threats to a woman over a loan. It is not suggested Kamahl’s section 14 application was not justified.

At Waverley, high-profile model Paris Ow-Yang unsuccessfully applied to have a common assault charge dismissed on mental health grounds recently.

Music legend Kamahl successfully secured a section 14 application in court.

The court heard Ow-Yang had consumed cocktails and four glasses of champagne at an event before she punched a victim at a Double Bay unit.

Her lawyer, Michael Bowe, sought a section 14 order, imploring to magistrate Magistrate Paul Mulroney “to give her a break”. She later pleaded guilty and was sentenced without a conviction.

Former St George Illawarra NRL player Talatau Junior Amone also had a section 14 application refused after being charged with common assault over spitting on a woman.

Amone’s lawyer Elias Tabchouri argued his client was suffering from a “mental impairment” at the time of the offending, sparked by the termination of his $500,000 Dragons contract. He later pleaded guilty.

There is no suggestion that the mental health applications made in either the Ow-Yang or Amone cases were not arguable.

The most common offence dismissed due to mental health was common assault in 974 cases, followed by contravening an AVO at 816.

Cases dismissed on mental health grounds

2020 – 2350

2021 – 2587

2022 – 2951

2023 – 3347

2024 – 3521

Top offences dismissed due to mental health in 2024

Common assault – 974

Contravening an AVO – 816

Stalking – 804

Source: Bureau of Crime Statistics and Research