The Court held that the 'agreement' required under s 31(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 relates to whether the proposed evidence in the proceedings establishes the defence of mental health impairment, not to consent to the process itself, and that such agreement can be inferred where the Crown does not challenge the expert evidence and makes no submissions that the evidence is insufficient to establish the defence. The Court further held that s 31 agreement is not a discretionary power or veto available to the prosecutor; where all expert evidence is unchallenged and points one way, there is only one legally permissible answer and the Crown's agreement is an inevitable inference. This extends Bugmy (No 2) [2026] NSWSC 70, where the Supreme Court found it could not proceed under s 31 absent unequivocal Crown agreement, by holding that unequivocal use of the word 'agree' is not required where the inference is clear from the Crown's conduct and concessions.
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