A special hearing conducted under s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) is the relevant 'hearing' for the purposes of cl 28 of Schedule 2 to the Evidence Act 1995 (NSW), not the earlier fitness inquiry. Accordingly, amendments to the Evidence Act that commenced between the fitness inquiry and the special hearing apply to the special hearing. An accused's intellectual disability does not diminish the probative value of admissions for the purpose of s 138(3)(a), though it may affect the weight given by the tribunal of fact and will often be a relevant consideration in the overall s 138 balancing exercise. The standard of appellate review applicable to s 138 decisions remains unresolved.
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