Under s 10 of the Mental Health (Criminal Procedure) Act 1990 (NSW), once the question of fitness to be tried is raised in good faith after arraignment, the court has no discretion — it must discharge the jury and conduct a fitness inquiry. There is no additional threshold requirement that the court be satisfied there is a 'real and substantial question' as to fitness. The party raising the question cannot subsequently withdraw it, as the statutory consequences follow automatically from the raising of the question. The Victorian and ACT authorities requiring a higher threshold (Presser, Kesavarajah, Eastman) do not apply to the NSW statutory regime.
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