The Court held that the 'agreement' required of the prosecutor under s 31(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 is not a discretionary veto but an evaluative recognition of the state of the proposed evidence: where the Crown does not challenge the expert evidence, does not contend the evidence is insufficient to establish the s 28 defence, and the two psychiatric experts are ad idem, the Crown's agreement may be inferred even without the Crown using the word 'agree'. The Court further held, following Bugmy (No 2), that s 31 is available in proceedings where the accused is unfit to be tried, and that the Crown cannot effectively circumvent s 31 by refusing consent on the basis that the unfit accused cannot personally instruct. The Court left open the possibility of the Crown seeking to test the ruling before proceeding to enter the special verdict.
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