Background
Andrew Charles Smith is charged with the October 2024 murder of Mavis Stanley at Bourke. The parties agreed that the evidence establishes a defence of mental health impairment or cognitive impairment, and the matter was listed for an inquiry under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in Dubbo.
Smith sought to attend that inquiry from South Coast Correctional Centre by audio visual link (AVL). The Crown opposed the application, relying on s 5BA of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), and submitted that the s 31 inquiry was a “physical appearance proceeding” because it was a hearing of the charges. The deceased’s family wished to read victim impact statements in Smith’s physical presence.
The Court’s Holding
Hamill J directed, under s 5BA(4)–(5), that Smith appear at the s 31 inquiry by AVL from South Coast Correctional Centre. His Honour proceeded on the assumption, without finally deciding the point, that the s 31 inquiry was a “physical appearance proceeding” and that AVL therefore required a finding that it was in the interests of the administration of justice.
The statutory position was unclear: a s 31 inquiry is neither a trial nor a fitness inquiry, and it was not apparent that it fell within “a hearing of charges.” But the result was the same in practical terms, because if the Crown’s construction were wrong, s 5BB would ordinarily require AVL attendance. The Court gave substantial weight to psychiatric evidence that transporting Smith through several correctional facilities created risks of interrupted treatment, assault, anxiety and relapse of psychosis.
Key Takeaways
- A court may order AVL attendance for an accused detainee where it is in the interests of the administration of justice.
- The Court did not conclusively decide whether a s 31 mental-health inquiry is a “physical appearance proceeding” under the AVL Act.
- Victims’ wishes concerning impact statements are important, but did not outweigh the welfare and treatment risks associated with transporting this psychiatrically unwell accused.
Why It Matters
The decision illustrates the broad, case-specific assessment required by s 5BA. It also identifies an unresolved statutory interpretation issue: the AVL Act does not clearly state whether a s 31 inquiry is a physical appearance proceeding.
The Court confirmed that AVL arrangements can preserve victims’ ability to read impact statements to the accused, while avoiding unnecessary transport risks for a detainee with serious mental illness.