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Catchwords: CRIMINAL LAW – murder – hearing under s 31 Mental Health and Cognitive Impairment Forensic Provisions Act – where psychiatrists agree accused suffering from delusional disorder and/or schizophrenia at time of killing – accused thoughts disordered and delusional – delusional belief in partner’s infidelity – accused unable to reason with a moderate degree of sense and composure – did not know his act was wrong – special verdict entered
CRIMINAL LAW – victim impact statements – where family members travelled hundreds of miles to attend hearing – bewildered at outcome and finding of “not criminally responsible” – language described by family member as “bullshit” – understandable approach to language of statute – dignified and respectful vigil over proceedings – courageous reading of victim impact statements – statements to remain in Court’s archives as enduring testament to a remarkable woman

Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 166, 167, 169
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28(1), 28(2), 28(3), 31, 33, 34

Cases Cited: R v Presser [1958] VR 45
R v Safranko [2025] NSWSC 1543

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): 2024/00412632; 2024/00413634; 2024/00401736

Publication restriction: N/A

JUDGMENT

1. Mavis Stanley [1] lived in a small cottage in Bourke with her partner Andrew Charles Smith for about three to four years. The couple did not have children together, but each had children to other partners. Ms Stanley and Mr Smith both used illicit drugs and the relationship was complex and marred by a history of domestic violence. Over the years, each had taken out apprehended domestic violence orders against the other. At some time between 11:33pm on Saturday 26 October 2024 and 8:00am on Tuesday 29 October 2024 Mr Smith killed Ms Stanley by hitting her several times her with a weapon, most likely a rod of some kind. Mr Smith was originally arrested for the murder of the deceased on 29 October 2024 but this arrest was “discontinued” on 30 October 2024 and he was charged with other offences. He has remained in gaol on remand since that time and was formally charged with murder on 12 December 2024.

2. Based on the opinions of two well qualified and respected psychiatrists, the Prosecutor and the accused man’s lawyers agree that Mr Smith is not criminally responsible for the murder because, at the time he killed Ms Stanley, he was suffering from a mental health impairment, including delusional beliefs, such that he did not know that his actions were wrong and/or that he did not understand the nature and quality of his actions: Mental Health and Cognitive Impairment Forens**ic Provisions Act 2020 (NSW) (“the Act”), s 28*.* The case is before the Court today pursuant to s 31 of the Act to determine whether, in accordance with the parties’ joint position, a special verdict (as that expression is defined in the Act) should be entered.

3. Before I deal with that legal question, I must acknowledge the pain, grief and devastating loss caused by Ms Stanley’s death and will speak now to her family and to her loved ones. I am able to receive victim impact statements from Ms Stanley’s family but only if and after a special verdict is returned. For that reason, before providing these reasons and adjourning to fine tune them, I entered the special verdict formally and received victim impact statements from four of Ms Stanley’s family members. The last of these was from Ms Stanley’s biological mother and incorporated the thoughts and words of a number of other family members, several of whom are in the courtroom today.

Victim impact statements

4. In fact, a large group of Mavis Stanley’s family and loved ones is here in Dubbo, many having travelled hundreds of miles to be here, and they have maintained a dignified vigil over today’s proceedings. They have acted with respect and remarkable poise despite their loss and anger and, no doubt, bewilderment at the nature of the special verdict. As one of them told me, the idea that the accused is not “criminally responsible” seems, to her and I think to the family as a whole, to be “bullshit”.

5. Cheryl Anne Stanley was a cousin to Mavis and she wrote and spoke on behalf of her sisters Ursula, Sissy and Tiesh. She spoke of Mavis with love – she was a woman with a big heart, a big laugh and was full of funny yarns. She spoke of Mavis’s strength and said they, the family and the sisters, are left numb – full of trauma, grief and loss. She thinks the accused is a coward who took away her “sister’s” life but she knows that her sister would have fought to her last breath. She told me about the anger and frustration the family feels and said there will never be closure. She says the family now drives around town at nights, checking on their female relatives just to make sure they are safe. They are triggered – that is my word – by news articles about domestic violence and says their lives have been “shattered into pieces”.

6. Cheryl Anne also read the statement of Cheryl Lulla Stanley, a matriarch of the family. This whole experience has been one of the hardest of her life. She described Mavis as a straight shooter who would fight for people who needed her support. She is full of guilt and grief stricken because she spoke to Andrew Smith during the period where, on the evidence as we now know it, he killed Mavis. She described finding out about the killing and its numbing and devastating impact. She told me that Mavis was about to come back to “Wello” where she would have been safe. She told me how many people attended the funeral and how beautiful it was despite the tragedy. Mavis is actually buried in Cheryl’s plot. She should not be there. She should still be with us bringing joy and laughter to the family. Cheryl Lulla misses absolutely everything about Mavis – even her blaring music which she loved to dance to with “absolute joy”. A person like Mavis should have more than 47 birthdays, 47 Christmases, 47 short years.

7. I also heard from Mavis’ daughter, Jennah. She is hurt. She is outraged. She is angry. Her feelings are completely understandable. She told Mr Smith that while her mother’s physical body was taken away by the events of late October 2024, her spirit can never be taken away and Mavis will remain in the family’s hearts and memory forever and she will be safe there.

8. Finally, I received (as Exhibit C) a statement from Charleen, Mavis Stanley’s mother. Her statement spoke on behalf of many members of the family, some of whom are here in Court and others are watching and listening on the audio-visual link (“AVL”). The statement shows the different and profound ways Mavis Stanley’s death has impacted so many people. Some just cannot go to Bourke anymore. Others took ages to accept that she is gone. Mavis was deeply loved – she was a bubbly, friendly, caring person and family meant everything to her. Looking around this courtroom today, I can see that this love and respect was mutual: Mavis meant everything to the family.

9. It is not much, but these statements will remain on the Court’s records and archives as an enduring testament to a remarkable woman, whose life was taken too soon and by violence. The statements will also be provided to the Mental Health Review Tribunal and be considered over the years if and when consideration is given to Mr Smith’s release.

10. Again, as I have said throughout the day, I don’t have any words that will console you but you have my sympathy, and the Court’s sympathy, and I can only hope that together and channelling the strength and joy that Mavis brought to the world, you are able to somehow recover and to move forward from this devastation.

The agreed facts

11. The facts of the case are agreed between the parties and a document signed by the accused, his solicitor and the Prosecutor formed part of the agreed joint tender bundle.

12. Ms Stanley was last seen alive when captured on CCTV in Bourke on 26 October 2024.

13. The following day, at about 5pm, Mr Smith became involved in a series of altercations with a number of men. He was behaving irrationally, accusing his half-brother (Stephen Cubby) of “rap[ing] my sister” and calling him a “murdering dog”. This behaviour is the basis of an “intimidation” charge (H82629619/3) which is before the Court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). Mr Smith then threw a bottle at Jason Smith’s car, smashing a window. This resulted in a charge of damaging property (H82629619/1) which is also before the Court under s 166. Jason and Douglas Smith intervened, and weapons were brandished. Douglas Smith was armed with two knives and a bat while the accused had a stick. The accused started swearing at Douglas and chased him, conduct which resulted in a further intimidation charge (H82629619/2).

14. On Monday 28 October 2024 just on midnight, a cousin of the accused (Larry Johnson) came across the accused who started to abuse him. He said “come here you cunt, I wanna kill you, you went with my woman”. Mr Johnson tried to flee but the accused chased him repeating his threat and the allegation: “come back here, I’m gunna kill you ya cunt … Mavis told me.” When Mr Johhnson made good his escape the accused yelled out “I’ll come and see you tomorrow.” This incident is the basis of a further intimidation charge (H422723993/1) before the Court under s 166.

15. Later that morning, at around 6:30am, a witness who is referred to in the agreed facts as “DS” saw the accused near his cottage and asked after Mavis Stanley. The accused said, “She’ll be back in a minute. She’s gone up to Clem Edwards place, I’ve done a bad thing. I’ve mixed Ice with Heroin.” At some stage later that day, the accused went and had a sleep at his mother’s place.

16. Meanwhile, nobody had seen or heard from Ms Stanley during those few days. Several people tried to call her on the Sunday at about 5:00pm. At one stage the accused answered the ‘phone and said “she’s not home. I’ve been waiting for her to come home all day.”

17. The truth is that Mr Smith killed Ms Stanley at some stage between the CCTV sighting on Saturday night and 8:00am on Tuesday 29 October 2024. He did so by inflicting multiple blunt force injuries upon her. The injuries observed on postmortem examination were consistent with the use of a weapon like a rod of some kind. The injuries are summarised as follows:

“(a) There were features of extensive blunt force trauma injuries observed on the deceased including lacerations and abrasions to the head, torso and limbs.

(b) There were injuries to the neck that could have resulted from direct blunt force injury applied to the neck or from pressure applied to the neck.

(c) Acute fractures to the left ribs were noted.

(d) There was extensive bruising to the entire right arm, left hip, lower left leg, right lower leg, right forearm, right lower leg, right buttock and the left and right side of the back.

(e) There were several ‘tram like’ bruises observed, which are typically caused by a rod like structure.

(f) There was a 2cm laceration, 5cm above the right eyebrow with an associated linear defect present in the skull”

18. I only found out today – through Cheryl Lulla’s statement – that Mavis was so bruised and beaten that the authorities would not allow – or recommended – that the close family not view her body. For that reason, the family did not get to observe traditional practices of dressing Mavis’ body in preparation for the funeral.

19. A crime scene and forensic examination of the couples’ cottage was consistent with the killing having occurred in those premises. It is not necessary to set out the details. At some stage, the accused took Ms Stanley’s naked body into the street where it was found at 8:00am on Tuesday 29 October 2024.

20. At 12:50am on 30 October 2024, the accused was arrested for the offences relating Larry Johnson and refused bail. On 6 November 2024, police attended the Metropolitan Remand and Reception Centre (MRRC) at Silverwater and charged him with wounding Ms Stanley with intention to inflict grievous bodily harm and investigating police installed a listening device in his cell. On 6 November 2024 he was recorded speaking to a cell mate. On 8 and 24 November 2024, the device recorded the accused saying several bizarre things. A short selection of some of the comments, seemingly addressed to some form of deity and which are otherwise set out in more detail in the facts, are as follows:

“Nice one my lord you set my life up for failure.

…

I’m sorry my lord I’m sorry I loved my wife my lord and I love her she was the best thing that ever happened to me but the manipulation and the rowing for years and years and years.

…

Then the devil come up and ripped the heart right out of my chest.

Because it’s your hands my lord you use them through me. Did you mean the energies lord Fuck me.

..

Take my life take who ever fucking life.

…

Keep a tie on I’m fuckin blind.

They still pushing me.

…

What the fuck is going on they’s all being cheeky little ones you know must be nice fucking little cunts.”

21. On 12 December 2024, the police went to the gaol and told the accused he was to be charged with Ms Stanley’s murder. Ten days later, and again on 25 December 2024, he was recorded by the listening device talking it seems to his dead partner. Again, a short selection of the material in the agreed facts includes the following:

“On 22 December 2024 the accused was captured on the SD device apparently talking to the deceased:

Andrew SMITH: You know, and I know what when on and what goes on you know I’m very spiritual and I understand I read all my signs.

Andrew SMITH: I know, and you know only you know what went on my girl only you and you’re not here to tell your story so I will listen to the spirits and I know you’re still with the family and know you’re coming to visit because its Christmas time you know. … I’m glad I’ve got know heater in here and I know my fan is only being used so it shouldn’t be making those noises it should be doing what it’s doing so I’m guessing you’re in my room.

Andrew SMITH: I can feel it I know you’re here my baby I know you’re here my baby you beautiful women you beautiful my baby you know you’re beautiful. I love you love.

…

On 25 December 2024 the accused was captured on the SD device apparently speaking with the deceased again;

Andrew SMITH: I’m putting the sick thing in my head then you put the sick thing in my head you know you know I’m trying to forgive you, you know and look at you and and ask you to be my wife you know.

…

Andrew SMITH: Getting wild with me don’t get wild with me.

…

Andrew SMITH: I know you’re going to wait for me my baby.

…

…it’s going to be weird for me you know after reading the bible to you know and it’s says if you’re married you know you can’t go with anyone else but we haven’t been married you understand that but god put us together the angels and god put us together and Jesus Christ and they put us together and I know that for sure and you know that for sure to now. But you didn’t want to know all that when you was with me

…

Andrew SMITH: And May you must be a angel already. You’re a angel already ay. And if you ‘re a angel already and you’re already visiting and visiting the kids ay. Ay. That means.

Andrew SMITH: That means it was a normal death for you ay. That’s what it means. If you’re back down here and you’re a angel and you coming here from Bourke you’re still playing with my grandchildren ay. That tells me that God took you. You asked God to take you. I know what you’re saying my baby.

…

Andrew SMITH: You understand what I’m saying to you May but you probably already know. Because my sister been murdered, she doesn’t get to come back as a angel straight away until she gets justice you know you got justice because you asked the lord to take you and the lord took you. And there’s a difference you see you weren’t murdered the lord took you because you asked him. My sister got taken.”

22. The joint tender bundle includes three reports by Dr Elliott and three by Professor Greenberg. Those reports, along with some email correspondence, occupies around 140 pages of the bundle. While there are some relatively minor differences of opinion, the psychiatrists are in general agreement as to the nature of Mr Smith’s mental state.

23. Some of the earlier reports were prepared to consider Mr Smith’s fitness to be tried and demonstrate at that early stage of his remand period he was significantly thought disordered and delusional. He spoke at length about his perception of the death of his sister, who died back in 1987. As I understand it, his account does not accord in any meaningful or realistic way with the established facts of the case as they are more generally recounted. As it happens, I worked in Bourke as a young barrister at the time and have a memory of that tragic event which involved the death of two young girls, and the subsequent criminal proceedings of the person thought to be responsible. The case traumatised many members of the local community and there were grave concerns that justice had not been done. Three and a half decades later, “State Coroner Teresa O’Sullivan found that the concerns raised by the family with respect to investigative failures and systemic racism were entirely justified and correct.” [2] It is unnecessary, and I think insensitive, to go further into the details of those events and the systemic failures surrounding the investigation and the court case. Nevertheless, the current accused’s perception of what happened back then appears, on the expert opinion in this case, to be entirely divorced from reality and he exhibited an obsessive pre-occupation with speaking about the case.

24. Dr Elliott at that stage found that Mr Smith was able to meet the “Presser” criteria, [3] it seems because of his extensive experience in the criminal courts, but expressed the opinion that Mr Smith was unfit to be tried because of the “intrusiveness of his delusional beliefs” which would continue to “impair his ability to provide instructions and…to follow the proceedings.” Professor Greenberg also considered the accused to be unfit at that stage. He was of the view that Mr Smith could not “instruct his legal representative so as to mount a defence and provide his version” and that he could not, in his then current psychiatric state, give evidence.

25. Dr Elliott provided two further reports in August and September of 2025. By that stage, Mr Smith had been treated with anti-psychotic medication, and he had responded to treatment. Dr Elliott maintained his view that Mr Smith has “chronic schizophrenia”. As to whether Mr Smith had a mental health impairment at the time he killed Ms Stanley, Dr Elliott concluded:

“Succinctly, I do consider that Mr Smith, at the time of the acts causing Mavis Stanley’s death, had a mental health impairment. I consider he was suffering from schizophrenia and this is recognised as a mental health impairment at s(4)(2)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. I do not consider that he did not know the nature and quality of the act. His account of his actions following the victim’s death indicate he was fearful of being ‘locked up’ for it but eventually reconciled himself to the arrival of police. I do consider that it is more likely than not that he did not know the act was wrong as he was unable to reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.

I have given careful thought whether it could be considered that Mr Smith killed the victim solely out jealous rage. At the time of my assessment for this report, and my assessments conducted on 20 and 26 August 2025, he expressed remorse and appeared acutely aware his actions were wrong. I note again his delusional beliefs regarding the death of his sister, Mona Lisa, did have some bearing upon his behaviour at the time of Ms Stanley’s death. He has now told me repeatedly that he believes the victim’s acts of infidelity were particularly wounding given she was supposedly aware of the true nature of his sister’s death and all that he had been through with what he perceived was a corrupt coronial inquest. Whilst contributing to his anger, there does not appear to be a direct nexus between these delusions and the act of killing the victim. His main motive appears his belief she had been sexually unfaithful. I have been required to take his account that the victim admitted to him she had been unfaithful, with Mr Johnson several years earlier and with Mr Moore a week before her death, at face value. I did challenge Mr Smith on his claims, suggesting to him that his behaviour may have forced Ms Stanley into a false confession, but he quietly disagreed and said again that she did admit to it freely and that she, ‘Knew what she had done was wrong.’ Both the manner with which he stated this and his actual justification for believing in the victim’s infidelity did not suggest the beliefs were deluded. As such, delusional jealousy did not appear to be a factor in his killing of the victim.”

26. Professor Greenberg also provided two further reports, dated 16 December 2025 and 26 June 2026. Professor Greenberg gave lengthy consideration to the material in the prosecution brief and to the history of domestic violence and took a cautious view as to whether the accused could rely on the defence of mental health impairment. He also did a thorough document review which demonstrated a lengthy history of drug abuse and psychiatric admissions and interventions.

27. Like Dr Elliott, but without the double negatives, Professor Greenberg was of the view “Mr Smith did know the nature and quality of his act at the time of the alleged offence”. However, the Professor concluded that he did not know that his actions were wrong. His conclusion in the report of 16 December 2025 was as follows:

“I’m of the opinion that at the time of the alleged offence, Mr Smith had a mental health impairment, that had the effect that:

Mr Smith did know the nature and quality of his act at the time of the alleged offence.

I’m of the opinion that Mr Smith did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). As stated previously, Mr Smith was labouring under fixed systematised delusions of infidelity and paranoia. These false beliefs involved the complainant having recent sexual relations with his partner. In my view, it is likely his intoxication or early withdrawal from substances at that time was a disinhibiting behavioural factor and possibly aggravated his psychotic symptoms.”

28. Around six months later, Professor Greenberg was provided with further health records and asked by the Prosecutor to provide a supplementary report and to indicate “whether those records have any impact on the opinions [he had] expressed”. Professor Greenberg provided an extensive summary of the material and concluded that his opinions remained the same. His helpful and firm conclusions on the question are as follows:

“CONCLUSIONS

The above medical records from Justice Health confirm the diagnosis of a psychotic disorder. The records confirm an underlying chronic delusional belief system which is partially resistant to treatment. These delusions persist despite him ceasing substances in custody. The records confirm he likely had these underlying chronic delusions at the time of his offending. The medical records confirm a relatively improved mental state due to him taking prescribed antipsychotic and antidepressant medication. However, he remains chronically deluded, although he is reportedly less preoccupied and ruminates less about his psychotic beliefs.

PSYCHIATRIC DIAGNOSES

Diagnostically, I remain of the view, Mr Smith suffers from a psychotic disorder (mental illness/ mental impairment); i.e., either a Delusional Disorder or a Schizophrenic Disorder. In addition, diagnostically, he has a history of a co-morbid diagnosis of a chronic Substance Use Disorder (alcohol and drug addiction) and he likely a post-traumatic stress disorder (PTSD), as opined in my previous report. In addition, Mr Smith may have some mild cognitive impairment which will require further psychometric testing to diagnostically define further. I am of the view he also has long-term antisocial personality traits.

DEFENCES

Therefore, I remain of the opinion that Mr Smith qualifies for a legal concept of ‘mental health impairment as defined in sections 4 of the Mental Health and Cognitive Impairment Forensic Provisions 2020. Mr Smith has a Delusional Disorder or alternately a Schizophrenic Disorder which is a mental illness with psychotic symptoms (paranoid and grandiose delusions).

Regarding the charges of murder (DV)-SI s 18(1)(a) Crimes Act 1900 and wound person intend to cause grievous bodily harm (DV)-SI s 33(1)(a) Crimes Act 1900, destroy or damage property (DV) s 195(1)(a) Crimes Act 1900 and stalk/intimidate intend fear physical etc harm (domestic)-T2 s 13(1) Crimes (Domestic and Personal Violence) Act 2007 times 2 counts and stalk/intimidate intend fear physical etc harm (domestic)-T2 s 13(1) Crimes (Domestic and Personal Violence) Act 2007,

Whether a defence based on mental health impairment pursuant to s.28 Mental Health & Cognitive Impairment Forensic Provisions Act 2020 is available, and if so, on what basis.

Mr Smith reportedly had a history of domestic violence. His relationship with the deceased was allegedly turbulent with frequent arguments and there were previous instances of physical violence.

In my view and on balance, the accused likely was intoxicated or possibly in early withdrawals from substances at the time of the alleged offences.

On balance, I remain of the opinion that Mr Smith likely has a defence of mental health impairment available to him.

Whether this information changes my diagnosis all my opinions about his mental health defence under section 28 and the Delaney v R [2025] NSWCCA 76 decision.

I remain of the view, Mr Smith was on balance, acting on psychotic delusions of infidelity regarding his partner who he believed had engaged in sexual relations with two men, Larry Johnson and Michael Moore. In my view at the time of the alleged offences, he lacked insight and judgement into his false beliefs. It is likely his intoxication or early withdrawal from substances at that time was a disinhibiting behavioural factor and possibly aggravated his psychotic symptoms. Mr Smith had a pre-existing mental impairment which was active at the time of the offending. In my view, intoxication, or withdrawal was not the cause of the applicant’s impairment. These substances exacerbated the existing impairment, i.e., his underlying psychotic delusional disorder. The accused had a long history of domestic violence towards both his previous partner/s and the deceased. The history of domestic violence (as a pattern of behaviour) put the deceased at heightened risk of being victimised but was not the cause or reasoning for his justification for her beating.”

The accused is not criminally responsible for the murder and a special verdict should be entered

29. I have provided a very scanty review of the lengthy, well-structured and erudite reports that both Dr Elliott and Professor Greenberg have provided to the Court. For the purpose of this judgment, it is not necessary to go into the extensive detail of Mr Smith’s personal history, his pervasive – and understandable – pre-occupation with his sister’s death, his frequent offending over many years, or his interaction with corrective services and mental health professionals. I have read the reports carefully and paid close attention to the history of domestic violence between the parties.

30. I have been greatly assisted by the written submissions of counsel for the prosecution and senior counsel who appears for Mr Smith.

31. I have considered the history of domestic violence within the relationship and Mr Smith’s controlling behaviour, but I am satisfied that that his pre-occupation with Ms Stanley’s perceived infidelity was born not of a rational but wicked jealousy but rather was, as the doctors say, the product of his disordered thought processes and delusions at the time of the killing.

32. It is clear from the listening device recordings that he was very unwell from the time of Ms Stanley’s death until he began to improve with anti-psychotic medication months after he was taken into custody. He was thought disordered and delusional. Some of the listening device recordings suggest he may have been experiencing some form of auditory hallucinations. In his report of 25 September 2025 (at [18]), Dr Elliott said Mr Smith “is heard actively responding to auditory hallucinations on the listening devices.” Similarly, in paragraph (q) under the heading “Sources of Information” on page 8 of the report of 27 August 2025, Dr Elliott said “the bulk of the transcripts consist of him talking to himself in what appear to be responses to auditory hallucinations and in a thought-disordered manner about his delusions”. In his first report Dr Elliott said:

“I was never able to confidently exclude auditory hallucinations. He spoke repeatedly of hearing spirits but he drew back from acknowledging that he hears these aloud in the room. He was unable to recognise my cues to end the interview and was once again off on yet more elaborations about his beliefs regarding his sister’s death.”

33. Professor Greenberg provided no clear opinion as to whether Mr Smith was hearing voices (that is, experiencing auditory hallucinations) and said in his report of 16 December 2025:

“I note Dr Elliott was of the view he had observable responses to hallucinations and thought disorder on the video material. At [the] time of submitting this report I have not had an opportunity to review the video material.”

34. The reference to the “video material” is a reference to the audio recordings obtained from the listening device as well as the body worn audio/visual recordings obtained in Mr Smith’s interactions with police. That observation by the Professor came immediately after he expressed the following opinion:

“The prominent feature in his mental health presentation is his systematised fixed ongoing delusions. He has some disorganisation of thoughts on occasion and at time[s] these thoughts seem to disordered but this has not been a prominent feature. Disorganisation of his thoughts appears to be more prominent [in] the recordings in his cell and body worn video transcripts shortly after the alleged offences”.

35. I can see no rational or logical reason not to act on what is, essentially, the joint opinion of the two psychiatrists. The objective evidence of surrounding events strongly supports their opinions.

36. I have taken into account the presumption in s 28(3) of the Act that Mr Smith does not suffer from a mental health impairment unless that presumption is rebutted (on balance) by evidence.

37. I am satisfied, on the balance of probabilities, that at the time he did the acts causing Ms Stanley’s death, Andrew Smith was suffering from a mental health impairment, probably schizophrenia with a delusional belief system or (as Professor Greenberg put it) “a Delusional Disorder or Schizophrenic Disorder”. This mental health impairment meant that Mr Smith “did not know that the act was wrong (that is, [he] could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong)”.

38. Accordingly, there will be a special verdict pursuant to Part 3 of the Act.

The other charges

39. There are four matters on a certificate under s 166 of the Criminal Procedure Act. Unfortunately, due to what I assume is a lacuna in the legislative provisions, the parties agree I have no power to deal with those matters. Section 167 provides:

(1) If, following a plea of guilty by an accused person to an indictable offence or at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person guilty of the offence, the court--

(a) is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and

(b) is to deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.

(1A) If at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person not guilty of the offence, the court is to deal with any back up offence or related offence with which the person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.

(2) If a court is dealing with an accused person for an indictable offence following the person’s committal for sentence, the court--

(a) is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and

(b) may deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.

(4) A court may deal with a back up offence or related offence with which an accused person has been charged even though it is not doing so in relation to a back up offence or related offence with which another accused person in the same proceedings is charged.

40. In R v Safranko [2025] NSWSC 1543 McGuire J held that the Court did not have the jurisdiction to deal with back up or related charges following the entry of a special verdict. While his Honour did not refer to sub-s (1A), which relates to the procedures following a not guilty verdict, I am constrained to accept the parties’ joint position that the entry of a special verdict is not the same as a verdict of not guilty.

41. Accordingly, as urged by both parties, the s 166 offences will be remitted to the Local Court. I would recommend that the Court allow for Mr Smith to appear by AVL and think, for reasons the parties would understand, that the matter is better dealt with in Dubbo than in Bourke.

Orders

42. Before making the formal orders, I again pay my respects to the family and loved ones of Mavis Stanley. I admire their courage and appreciate the respect they have shown today in circumstances where their bewilderment at the outcome is as palpable as it is understandable. Thank you all.

43. The orders I must make are these:

44. In relation to the count of murder, I enter a special verdict pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) of “act proven but not criminally responsible”.

45. Pursuant to ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Andrew Charles Smith is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.

46. Pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Andrew Charles Smith is referred to the Mental Health Review Tribunal.

47. The Registrar of the Supreme Court is to notify the Minister for Health of these orders within 7 days.

48. The Registrar is to notify the Mental Health Review Tribunal of the verdict and these orders within 7 days.

49. The Registrar of the Supreme Court is to provide the Mental Health Review Tribunal with a copy of these orders and my reasons for judgment and the exhibits within 7 days.

50. The Registrar of the Supreme Court is to notify Justice Health of the verdict and orders, and provide a copy of the reasons for judgment and orders and exhibits to Justice Health within 7 days.

51. The Registrar of the Supreme Court is to provide a copy of the victim impact statements marked as Ex B(i), B(ii), C and D to the Mental Health Review Tribunal within 7 days.

52. The following charges are remitted to the Local Court at Dubbo on Thursday 3 September 2026, pursuant to s 169 of the Criminal Procedure Act 1986 (NSW):

(i) Intimidation (H82629619/3) (ii) Damage Property (H82629619/1) (iii) Intimidation (H82629619/2) (iv) Intimidation (H422723993/1)

10. I recommend the Judge of the Local Court dealing with the matter permit the accused to appear by AVL.

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Endnotes

Before naming Ms Stanley I checked with the Prosecutor, and confirmed with her family in Court, that there was no cultural disrespect in naming her.

Inquest into the deaths of Mona Lisa and Jacinta Smith, Findings of State Coroner published 23 April 2024, for example at [293] and [312]: https://coroners.nsw.gov.au/documents/findings/2024/Inquest\_into\_the\_deaths\_of\_Mona\_Lisa\_and\_Jacinta\_Smith\_.pdf and National Justice Project, April 24, 2024: https://www.justice.org.au/media-release-mona-and-cindy-smith-inquest/

R v Presser [1958] VR 45.