The unfitness of an accused to stand trial, which is the basis for engaging the special hearing process under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), cannot of itself provide a basis for permanently staying that process. A permanent stay of a special hearing requires the applicant to demonstrate that it would be 'out of accord with common humanity' to allow the matter to proceed, and instances warranting such a stay are likely to be rare. The standard of appellate review for refusal of a permanent stay is governed by House v The King principles.
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