Director of Public Prosecutions (NSW) v Marmara & 1 Or

The Director of Public Prosecutions (NSW) appealed to the Court of Appeal of New South Wales against a decision of Dodd DCJ concerning the fitness of the first opponent, Marmara, to be tried. The dispute arose after Marmara was found unfit to be tried before arraignment, and the Mental Health Review Tribunal subsequently determined he was suffering from a mental illness but would likely be fit to stand trial within 12 months, leading to the grant of bail. The Attorney-General then directed a second inquiry into Marmara's fitness.

The central legal issue before the Court of Appeal was whether Dodd DCJ erred in law by not ordering a further inquiry into Marmara's fitness to stand trial, and whether the question as to Marmara's unfitness had been raised in good faith by the Attorney-General.

The Court of Appeal held that the Attorney-General's direction for a second inquiry was a valid exercise of power under the *Mental Health (Criminal Procedure) Act 1990* (NSW). The court reasoned that the Attorney-General was entitled to form an opinion that a further inquiry was necessary, and this opinion was not required to be based on new evidence. The court found that the trial judge had erred in failing to conduct the further fitness hearing as directed.

Consequently, the Court of Appeal made a declaration that Dodd DCJ was bound to conduct a further fitness hearing for Marmara and remitted the proceedings to the District Court to be determined according to law.