Under s 10(2) of the Mental Health (Criminal Procedure) Act 1990 (NSW), the 'good faith' threshold for conducting a fitness inquiry is met wherever there is a real and substantial question as to the accused's unfitness to be tried. Where such a question exists — particularly where supported by medical evidence — good faith is to be presumed, and the trial judge is bound to conduct an inquiry under s 10(1). The trial judge must not conflate the threshold question with the substantive determination of unfitness, which is a matter for the jury. The threshold question is not to be treated as an adversarial contest or determined on the balance of probabilities.
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