Forensic mental health reports prepared under s 315A(1)(b)(ii) of the Crimes Act 1900 (ACT) are admissible notwithstanding the hearsay rule by virtue of s 315A(1)(b)(iii) and s 8(4)(b) of the Evidence Act 1995 (Cth). However, the prosecution must be given a reasonable opportunity to cross-examine the report's author and to make submissions before a finding of unfitness to plead is made. The statutory criteria in s 311 are to be applied in a reasonable and commonsense fashion, consistently with the Presser test. A party that wishes to cross-examine the author of a fitness to plead report bears a degree of responsibility to make the court aware of that wish, but the court must ensure a real opportunity is afforded.
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