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Texts Cited: N/A

Category: Principal judgment

Parties: Rex (Prosecution)
Andrew Charles Smith (Defendant)

Representation: Counsel:
R Kotsis (Rex)
N Broadbent SC (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Rex)
Legal Aid Commission of NSW (Defendant)

File Number(s): 2024/00401736

Publication restriction: N/A

JUDGMENT

1. Andrew Charles Smith is charged with the murder of Mavis Stanley at Bourke in late October 2024. The accused man was in a relationship with Ms Stanley and there was a history of domestic violence. The accused had exhibited “possessive, jealous and controlling” behaviour towards Ms Stanley. On 27 October 2024 the accused became involved in several altercations with a number of local men including Stephen Cubby, Douglas Smith, Jason Smith and Larry Johnson. Weapons were brandished and threats were made. The accused said to Mr Johnson “come here you cunt, I wanna kill you, you went with my woman.”

2. Over the period of 27-29 October 2024, the deceased was unable to be contacted and at around 7:00am on Monday 28 October a witness known as DS saw the accused and asked where Ms Stanley was. He said “She’ll be back in a minute. She’s gone up to Clem Edward’s place, I’ve done a bad thing. I’ve mixed Ice with Heroin”. It is an agreed fact that the accused killed Ms Stanley at some time between 11:33pm on 26 October 2024 and 8:00am on Tuesday 29 October 2024. The precise mechanism of death is not known but the cause of death was blunt force injuries resulting from the accused striking Ms Stanley with a weapon like a rod. The assault took place inside the couple’s cottage, but the accused later moved the deceased’s naked body on to the street where he left her.

3. Following a litigation and listing history to which I will return, the parties agreed the matter could and should be dealt with under s 31 of the Mental Health and Cognitive Impairment Forensic Pr**ovisions Act 2020 (NSW) (“MHCIFP Act”). That is, the defendant and the Prosecutor “agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment”. The matter is now listed for the inquiry under s 31 next Wednesday 19 August 2026 in Dubbo.

4. At the most recent mention of the matter – when the venue was changed from Bourke to Dubbo at the request of the Prosecutor – Mr Broadbent SC sought an order that the accused appear at the inquiry by audio visual link (“AVL”). The Prosecutor opposed that order, saying:

“Your Honour, the application’s opposed. These are physical appearance proceedings under the Evidence (Audio and Audio Visual Links) Act, and that being so, the legislation provides that the Court may only make a direction for the accused to appear by audio visual link, if satisfied of the relevant factoring in that provision, that it’s in the interests of the administration of justice for the accused to so appear.”

5. The issue was unusually contentious and the submissions somewhat emotive so I called for written submissions so that I could more efficiently resolve the issue in chambers and either make an order that the accused be transported in custody to Dubbo by next Wednesday or a give a direction that he appear by AVL.

6. The Prosecutor submitted that the s 31 hearing or inquiry is a “physical appearance proceeding” within the meaning of that expression in the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (“AVL Act”). Section 3 of the AVL Act provides (amongst other things):

“accused detainee” means a person who is being held in custody in a correctional centre, detention centre, police station or other place of detention and includes, in relation to a proceeding for a summary offence, a defendant who is so being held.

“physical appearance proceeding” means the following--

(a) a trial, including an arraignment on the day appointed for the trial,

(b) a hearing of charges,

(c) an inquiry into a person’s fitness to be tried for an offence.

7. Part 1B (s 5BAAB to s 5BC) makes provision for accused detainees. Relevantly, s 5BA provides:

(1) An accused detainee who is charged with an offence and is required to appear before a NSW court in physical appearance proceedings concerning the offence must, unless the court otherwise directs, appear physically before the court.

Note**.**

accused detainee and physical appearance proceedings are defined in section 3.

(3) Subsection (1) does not apply if the parties to the proceeding consent to the accused detainee appearing before the court by audio visual link from any place within New South Wales at which the accused detainee is in custody other than the courtroom or place where the court is sitting.

(4) The court may make a direction under subsection (1) on its own motion or on the application of any party to the proceeding or of any person on behalf of a designated government agency.

(5) The court may make such a direction only if it is satisfied that it is in the interests of the administration of justice for the accused detainee to appear before the court by audio visual link from a place within New South Wales at which the person is in custody other than the courtroom or place where the court is sitting.

(6) Without limiting the factors that the court may take into account in determining whether it is in the interests of the administration of justice to make a direction under subsection (1), the court must take into account such of the following factors as are relevant in the circumstances of the case--

(a) the risk that the personal security of a particular person or persons (including the accused detainee) may be endangered if the accused detainee appears in the courtroom or place where the court is sitting,

(b) the risk of the accused detainee escaping, or attempting to escape, from custody when attending the courtroom or place where the court is sitting,

(c) the behaviour of the accused detainee when appearing before a court in the past,

(d) the conduct of the accused detainee while in custody, including the accused detainee’s conduct during any period in the past during which the accused detainee was being held in custody in a correctional centre or detention centre,

(e) the potential for disruption of the accused detainee’s participation in a rehabilitation or education program if the accused detainee were to be transported to, and appear in, the courtroom or place where the court is sitting,

(f) safety and welfare considerations in transporting the accused detainee to the courtroom or place where the court is sitting,

(g) the efficient use of available judicial and administrative resources,

(h) any other relevant matter raised by a party to the proceeding or other applicant for the making of the direction.

8. Sub-sections (7) and (8) relate to children and are of no relevance to the present application.

9. By contrast, s 5BB applies to an accused detainee required to appear in criminal proceedings “(other than physical appearance proceedings)” and sub-s (1) provides that such an accused “must, unless the court otherwise directs, appear before the court by audio visual link”. Sub-section (2) provides sub-s (1) does not apply unless the necessary technology is available. There is no suggestion that Dubbo courthouse does not have AVL facilities available. The remainder of s 5BB, where relevant, provides:

(3) The court may make a direction under subsection (1) on its own motion or on the application of any party to the proceeding or of any person on behalf of a designated government agency.

(4) The court may make such a direction only if it is satisfied, after taking into account any factors that are relevant in the circumstances of the case together with any factors that are specified in rules of court, that it is in the interests of the administration of justice for the accused detainee to appear physically before the court.

10. The parties joined issue over whether a hearing or inquiry under s 31 falls within the definition of “physical appearance proceedings” in s 3. The Prosecutor submitted it comes within the definition and was, for the purpose of the definition, “a hearing of the charges” in the nature of a trial or hearing of the evidence. His written submission on this issue were as follows:

“10. The Crown submits that a s31 hearing is a ‘hearing of charges’ for the purposes of the AVL Act for the following reasons;

There is no legislative or common law requirement for a s31 hearing to proceed by way of agreement as to facts pursuant to s191 Evidence Act 1995. Whilst the parties have reached agreement as to facts in this case, the interpretation of the phrase ‘hearing of charges’ as that phrase term appears in the AVL Act should not be determined based on the way in which these proceedings are being conducted.

The Court would be unable to consider whether the defence is made out without considering the evidence available to support the charges alleged by the Crown.

The Court must consider whether the Court is satisfied by the evidence adduced in the hearing, that the accused person voluntarily committed the act(s)/omission(s) causing death.

The s31 hearing is the final hearing of the charges before the court exercising criminal jurisdiction.

At the conclusion of the hearing of the matter, the Court may enter a final verdict of ‘act proven but not criminally responsible’. The verdict is a formal finding by the court, based on the evidence adduced at the hearing, that the act alleged by the Crown in the charge is proven.”

11. I do not accept – and it is not submitted – that a s 31 hearing falls within sub-para (a) of the definition contained in s 3 (a trial or arraignment at the beginning of a trial) or (c) (an inquiry into an accused person’s fitness to stand trial).

12. However, it could conceivably fall into sub-para (b) (“a hearing of charges”) although, in the context of the text of the legislative definition – where “a hearing of charges” follows upon the inclusion of “a trial” in sub-para (a), it is not immediately apparent that it does meet that description. More likely, a “hearing of charges” relates to a defended hearing. Further, the section specifically includes a fitness inquiry, and it is notable by contrast that the s 31 process is not specifically included in the apparently exhaustive definition in s 3. The explanation for this may be no more complicated than the fact that s 31 procedure was introduced by legislation enacted in 2020 and did not exist when the AVL Act commenced in 1998. It might also be noted that the s 31 process often arises in the course of the trial (“at any time in the proceedings”) although, as the section makes clear, it can be invoked “before the jury is empanelled”.

13. The accused’s position that these are not “physical appearance proceedings” arguably receives some support in the descriptions of the s 31 process provided in other cases. For example, in R v Lailna [2023] NSWSC 48, Chen J said (at [24] and with citations omitted):

“First, the hearing under s 31 is not a trial: R v Sands at [4]; R v Jackson [2021] NSWSC 1404 at [7]. Secondly, the procedure contemplated by s 31(c), has been described as an ‘evidentiary enquiry’: R v Jackson at [7]. Thirdly, if the court is satisfied that the defence is established for the purposes of s 31(c), the Court is required to enter a special verdict of ‘act proven but not criminally responsible’: R v Jackson at [8]. Fourthly, it has been suggested that, because a hearing under s 31 is not a trial, but an inquiry, strictly, there is no requirement to comply with the legal imperatives contained in s 133 of the Criminal Procedure Act 1986 (NSW); nevertheless, the Court is not relieved of a requirement to provide reasons, which include the findings, and consequences of those findings: R v Tonga at [98]-[100]; R v Siemek (No. 1) at [17]-[18]; R v Sands at [4].”

14. See also, for example, R v Lambros [2023] NSWSC 462 at [5] and the discussion of the modification of procedures by Johnson J in both R v Jackson [2021] NSWSC 1404 at [9]-[13] and R v Siemek (No*.* 1) [2021] NSWSC 1292.

15. None of those cases were dealing with the question with which I am presently concerned, and I do not find them to be determinative or particularly persuasive in deciding whether a s 31 hearing falls within the definition of a “physical appearance proceeding” in s 3 of the AVL Act.

16. If the legislature intends that a s 31 hearing is caught by the definition in s 3, there should be an amendment to the AVL Act because, as it stands, it is far from clear that such a procedure falls within the statutory definition.

17. Even so, for the purpose of argument and resolving the issue, I will proceed on the basis that the s 31 hearing is subject to the provision in s 5BA so that the accused is to attend in person unless the court otherwise directs on the basis that “it is in the interests of the administration of justice” that the accused appear by AVL.

18. It is axiomatic that the interests of the administration of justice is an expression of wide import and is not to be confused or conflated with the interests of the accused. However, the accused’s interests are relevant both generally and in respect of some of the provisions in sub-s (6). So, matters that “must be taken into account” include:

(e) the potential for disruption of the accused detainee’s participation in a rehabilitation or education program if the accused detainee were to be transported to, and appear in, the courtroom or place where the court is sitting,

(f) safety and welfare considerations in transporting the accused detainee to the courtroom or place where the court is sitting.

19. The parties agree the accused is mentally unwell. One of the psychiatrists who provided reports which led to the agreed s 31 process is Dr Elliott. He provided an email concerning the issue of transporting the applicant from the South Coast Correctional Centre to Dubbo (via the Metropolitan Remand Centre at Silverwater). Dr Elliott wrote:

“Mr Smith is currently housed at the South Coast Correctional Centre, where I believe he remains on Non-Association given the threat posed to him by other inmates as a result of the nature of his index offence. He is being reviewed episodically by my forensic psychiatry colleague, Dr Ching Long Ho, and the specialist mental health nurse at the centre, Ms Katherine Rynne. He is being treated with the daily oral antipsychotic medication Abilify, the antidepressant escitalopram and an additional medication for PTSD/anxiety symptoms, clonidine, and his medications for diabetes, asthma and cholesterol.

I do hold concerns regarding the proposed transfers for his appearance in Court. Justice health staff work to avoid treatment interruptions with transfers between centres but, particularly with the rollout of the new Single Digital Patient Record, treatment interruptions do occur. Patients miss doses of medication and fall off waiting lists for psychiatrists and mental health nurses. Wellington Correctional Centre does not currently have a mental health nurse, making it more likely he will experience a treatment interruption. Coupled with this, he is more likely to be assaulted during and immediately following transfers. He will be aware of this. The combination of his anxiety around encountering other inmates with knowledge of his offence and the potential for a treatment interruption could lead to a relapse of his psychosis.

The decision about whether Mr Smith should appear by AVL or in person is of course a matter for The Court. I tentatively suggest that section 5 BA (6)(a)(e) and (f) of the Evidence (Audio and Visual Links) Act 1998 may apply to his circumstances.

Should Mr Smith receive a special verdict, he will be transferred to the Hamden mental health accommodation pod of the MRRC to await transfer to The Forensic Hospital. He will be placed on the standard waitlist. With yet further information from the Mental Health Nurse Clinical Nurse Consultant since my last email, I can confirm this waitlist is at least 12 months, and possibly two years. There is nothing in Mr Smith’s circumstances to warrant him being placed above others in the list for earlier transfer.”

20. The Prosecutor acknowledged this email raised relevant matters under the provision but submitted in writing:

“The Crown acknowledges that the matters raised by the accused at [28] of the defence written submissions (‘DWS’) are relevant to this factor and weigh in favour of a finding that it is in the interests of the administration of justice to order that the accused detainee appear by AVL, however the Crown notes the following;

(i) It is accepted by the defence that the accused’s mental health has ‘markedly improved’ (DWS [29])

(ii) It if the accused is required to attend, it is unlikely that he would be away from his usual place of detention for any significant period of time. According to Dr Elliott, upon the finding of a special verdict, the accused is likely to be moved from South Coast Correctional Centre to the Hamden Mental Health Pod at MRRC.

(iii) Whilst the accused is reviewed ‘periodically’ there is no evidence regarding the frequency of those reviews and whether it is likely that any such review would occur during the period of time that the accused would be away from his usual place of detention if required to appear.

(iv) It is acknowledged by Dr Elliott that Justice Health seek to avoid any treatment interruptions

(v) Whilst Dr Elliott refers to ‘potential consequences’ of transfers, there is no evidence of the likelihood of any such consequences, noting the obligation of Corrective Services to ensure the safe transportation or inmates including those who are medicated (DWS [28e])

(vi) Dr Elliott refers to an increased risk of assault during and after transport. Dr Elliott notes that the accused would be aware of this however there is no evidence of that fact. Dr Elliott notes ‘the combination of his anxiety around encountering other inmates with knowledge of his offence and the potential for treatment interruption could lead to a relapse of his psychosis’. There is no evidence that the accused has any such anxiety, or the likelihood of treatment interruption. The likelihood of relapse is unclear from the email of Dr Elliott. Indeed it is unclear based on the terms used in the email, if the opinion rises above a level of speculation.”

21. The Prosecutor submitted that another relevant matter concerned the views and wishes of the victim’s family. This was articulated in the written submissions in the following way:

“The accused is charged with a most serious offence.

The interests of the administration of justice are not limited to the interests of the accused.

The family of the deceased have been profoundly impacted by the violent voluntary acts of the accused which caused the death of the deceased.

Victim Impact Statements (VIS) will be read during the s31 hearing.

Section 30L was introduced by the Crimes Legislation Amendment (Victims) Act 2018. On reading the bill, the Attorney General Mark Speakman SC said;

‘…in many cases the making and reading of a victim impact statement will be the only involvement the victim has in the proceedings. As such, it represents an important opportunity for the victims to have their voice heard and share their experiences in a way that can be empowering, validating and often therapeutic.’

Victims commonly direct the contents of their VIS (or aspects of them) to the accused directly so that the accused can hear the impact that their actions have had.

The family of the deceased have asked the Crown to inform the Court that it is important to them that the accused is present to hear them read their VIS and see them when they do so. The Crown submits that the views of the family are not unreasonable and ought to be afforded weight, noting that the VIS procedure is designed to provide an opportunity that can be empowering, validating and therapeutic.

There is no legislative requirement for the authors to read a VIS from a witness box or any other designated place within the courtroom. The process of reading a VIS is often stressful for victims and family members of deceased persons. Ordinarily family victims are permitted to read the VIS from anywhere in the courtroom where they feel comfortable doing so. That decision is usually made by authors on the day of the hearing, when the layout of the courtroom is known. If the accused appears by AVL, the accused would not be able to see the authors reading the VIS, unless the authors did so from a place in the courtroom which is captured by the AVL system. The precise layout of the courtroom where this hearing will occur, and the direction/angle of the cameras is unknown. If the court makes the order sought by the accused, the choices available to the authors will be limited in a way that would otherwise not be necessary if the accused were present.

The audio (and video) may be interrupted during the reading of the VIS without this being apparent to the author or presiding judge. If that occurs the accused may not hear all or part of the VIS as it is being read.

The audio/video may fail entirely on the day of the hearing which could lead to an adjournment and delay in the proceedings which would cause unnecessary further distress to the family of the deceased.”

22. I accept that the wishes of the victim’s family are relevant and must be treated seriously and with sensitivity.

23. I do not accept that the possibility that AVL may “fail entirely” is a matter that can be given much weight. Such a submission could be made in every case and, at least since COVID-19, occasions of complete failure are very unusual.

24. Obviously, the secondary victims will be permitted to decide the position in the courtroom from which they read their statements. If the accused appears by AVL, he will be able to see and hear the courtroom and the authors of the statements will be permitted to sit or stand in a location where they will be seen and heard by the accused. They will not be required to sit in the witness box if they choose not to do so. The accused himself will be visible on the screen.

25. I am unable to accept that Dr Elliott’s opinions should be disregarded or given less weight because there is “no evidence” in respect of some of the details. Nor do I accept that his opinions are based on speculation. In my assessment, his opinions concerning the problems of transferring Mr Smith from the South Coast Correctional Centre to Sydney, then to Wellington Gaol, and finally to Dubbo for court, are based on his considerable experience. They are deserving of substantial weight in determining where the interests of the administration of justice lie. I consider the risk of interrupting Mr Smith’s positive progress over recent times to be a very important consideration.

26. It goes without saying that the offence with which the accused stands charged is extremely serious. But it must be remembered that the parties’ joint position is that he is not criminally responsible for that offence by virtue of his mental health issues.

27. According to the reports of Dr Elliott, Mr Smith suffers from “chronic schizophrenia” and has had “psychotic symptoms from as early as 2021.” Dr Elliott was of the opinion that listening device recordings made shortly after his arrest, and his presentation in early examinations, showed the accused to be “markedly thought disordered”. Dr Elliott was of the view the “severity of his symptoms would have prevented him from reasoning with any degree of composure” and it is only since receiving antipsychotic treatment that his delusions no longer “dominate an interview”. Since that treatment has started to improve his symptoms, he has expressed remorse and acknowledged the wrongfulness of his acts.

28. Professor David Greenberg was retained by the Prosecution to provide a report on issues arising under the MHCIFP Act. He has provided three reports dated 14 May 2025, 16 December 2025 and 26 June 2026. At the time of writing, those reports have just been filed and I am yet to have time to read them closely. However, Professor Greenberg generally agrees with the substantive reports of Dr Elliott. He expressed the opinion that Mr Smith “suffers from a psychotic disorder (mental illness/mental impairment); i.e. either a Delusional Disorder or a Schizophrenic Disorder”. Professor Greenberg also refers to Mr Smith having post-traumatic stress disorder and a mild cognitive impairment. Like Dr Elliott, Professor Greenberg is of the opinion that the defence of mental health impairment under s 28 of the MHCIFP is established. In his view, “Mr Smith did not know that the act was wrong” because “he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong”: MHCIFP Act, s 28(1)(b).

29. As I have said, I am conscious of the deceased family’s needs and wishes. The Court has, in listing the matter, attempted to accommodate their needs. When the matter was first before the Court, the trial management form filed by the Prosecution said in relation to the appropriate venue:

“As the offence was committed at Bourke; the closest jury Court location is Dubbo. The deceased has a large extended family who prefer to be able to attend in person accordingly the Crown seeks a listing at Dubbo, or as close as possible to Bourke.”

30. At the arraignment on 5 June 2026, Senior Counsel for Mr Smith indicated he had no problem with the matter being heard in Sydney, but I had the following exchange with the learned Crown Prosecutor (who appeared at the arraignment but is not trial counsel):

“PROSECUTOR: Your Honour, the other issue though, in terms of location, is that the deceased has a large extended family who would like to attend.

HIS HONOUR: They will be coming from Bourke?

PROSECUTOR: They are coming from - it doesn’t actually say - but it says Dubbo or as close as possible to Bourke, so presumably Bourke, yes.

HIS HONOUR: That’s important, I think.”

31. The matter was listed for trial on 26 October 2026 in Dubbo and allocated to another Judge (Weinstein J). It could not be listed in Bourke because that location can no longer obtain sufficient numbers to empanel a jury.

32. Some time later, the parties approached the Court to indicate their joint position that the matter could be dealt with under s 31 and would be much shorter than the original estimate. The matter was placed in the arraignment list on 7 August 2026. Because there was no longer a need to empanel a jury, it was possible for the matter to be heard in Bourke and, based on the information provided, I understood this would be preferable for the victim’s family. I had the following exchange with the Prosecutor (again, not trial counsel):

“HIS HONOUR: … My understanding is that the main reason for the desire for this to be in western New South Wales is that the deceased’s family reside in the township of Bourke.

PROSECUTOR: That’s correct.

HIS HONOUR: What do you think about doing this case in Bourke?

PROSECUTOR: If it is an earlier date in Bourke or Dubbo, then I have no objection to that.

HIS HONOUR: We can give you Tuesday 18 August [in Bourke] and that seems to fit in with everyone’s availability.

PROSECUTOR: I believe so.

HIS HONOUR: Mr Broadbent?

BROADBENT: Certainly suitable for me, your Honour, thank you.

HIS HONOUR: And that means the witnesses or the victims don’t have to travel.”

33. Within a week of this listing being made, the trial Prosecutor approached my Associate and indicated the family was concerned about the listing in Bourke for various reasons and that the family’s preference was for the matter to be heard in Dubbo, rather than Bourke. An urgent listing was arranged and there was a mention at 9:30am on 12 August 2026. I took account of a letter from Detective Sergeant Mark Symons which spoke of tensions between the families and concerns expressed by the Stanley family about the case being held in Bourke. The police officer requested that a different venue, preferably Dubbo, be considered. On the basis of that information – much of which, without criticism, was based on hearsay and untested opinion – the venue was changed to Dubbo on the Prosecutor’s application. While I was not prepared to delay the hearing further, and took the view that no valid reason was provided to do so, I remained conscious of the sensitivity surrounding the case and the wishes of the victim’s family.

34. The history I have just recounted is not – in any sense – designed to be critical of the prosecuting authority. Rather, it demonstrates that the Court has attempted to accommodate the wishes of the grief-stricken relatives of the deceased in its listing and relisting of the matter and in selecting the most appropriate venue. This included making arrangements for the Court to sit in the outback town of Bourke, which was understood to be the most convenient venue for the family. When concerns were raised about that venue, an urgent listing was arranged and the venue was changed to that preferred by the victim’s family.

35. The question that now arises is a difficult one and I am grateful to both counsel for the provision of written submissions on very short notice. It is a difficult decision, but I am satisfied that the opinions of Dr Elliott and the concerns he raises about transporting the accused man to Dubbo are matters which must carry the most weight in determining where the interests of the administration of justice lie in this case. I am not satisfied that the purposes of receiving the victims’ impact statements will be greatly enhanced (if at all) by having the psychiatrically ill, cognitively impaired accused man in the same room as those who will read their victim impact statements to the Court. As the Prosecutor acknowledged at the mention on 12 August 2026, the reading of those statements is important and hopefully therapeutic, but it is not an exercise in shaming. [1]

36. Considering all relevant matters, I am positively “satisfied that it is in the interests of the administration of justice for the accused detainee to appear before the court by audio visual link” from the South Coast Correctional Centre.

37. Accordingly, I make a direction under s 5BA(4)-(5) that the accused appear at the s 31 hearing by AVL from the South Coast Correctional Centre. In making that order under s 5BA, I am conscious that if the Prosecutor’s submission as to the meaning of “physical appearance proceeding” in s 3 is incorrect, the accused would be required by s 5BB to appear by AVL unless the Court were to direct otherwise.

**********

Endnote

Tcpt, (12.8.26), p 6.