Where the defence of mental illness is raised by counsel contrary to the accused's express instructions, the defence is not 'set up as a defence by the person' within s 5(2) of the Criminal Appeal Act 1912 (NSW), and the accused retains a right of appeal as a deemed convicted person. However, such an appeal will be dismissed where the evidence overwhelmingly establishes mental illness, because s 7(4) would require the Court to make the same detention order.
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