Citation: R v Smith (AVL) [2026] NSWSC 978
Court: Supreme Court of NSW
Date: 17 August 2026
Judge(s): Hamill J
Background
The accused was charged with the murder of his partner at Bourke in late October 2024, in circumstances involving a history of domestic violence and a brutal assault. The parties agreed the matter should proceed under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), meaning both the prosecution and the defence were satisfied that the evidence established a defence of mental health impairment or cognitive impairment. An inquiry under that provision was listed for 19 August 2026 in Dubbo.
Counsel for the accused applied for him to appear at the inquiry by audio visual link (AVL) from the South Coast Correctional Centre, where he was held. The prosecution opposed the application. The victim's family had made clear their wish to read Victim Impact Statements in the physical presence of the accused, and the court had already made considerable efforts to accommodate that family, including arranging to sit in Bourke before later changing the venue to Dubbo at the prosecution's request.
Given the submissions became somewhat emotive at the mention hearing, Hamill J called for written submissions to resolve the question in chambers.
Legal Issues
- Whether a s 31 inquiry under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 constitutes a "physical appearance proceeding" under s 3 of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- If it is a physical appearance proceeding, whether the interests of the administration of justice were satisfied so as to permit an AVL direction under s 5BA of the AVL Act
- What weight, if any, should be given to the wishes of the victim's family in determining the AVL application
Decision
Issue 1: Is a s 31 inquiry a "physical appearance proceeding"?
The definition of "physical appearance proceeding" in s 3 of the AVL Act includes a trial, a hearing of charges, and an inquiry into a person's fitness to be tried. The prosecution argued a s 31 inquiry is a "hearing of charges" because the court must be satisfied that the accused voluntarily committed the relevant act, and the hearing is the final determination of the charges in a criminal jurisdiction.
Hamill J found the legislation unclear on this point. His Honour declined to resolve the definitional question conclusively, but proceeded on the basis that the s 31 inquiry is a physical appearance proceeding. This meant the default position under s 5BA was that the accused must appear physically, and the court could only direct otherwise if satisfied it was in the interests of the administration of justice to do so.
Issue 2: Interests of the administration of justice
The accused's psychiatrist, Dr Elliott, provided an opinion raising concerns about transporting the mentally unwell, cognitively impaired accused from the South Coast to Dubbo. Hamill J treated that psychiatric evidence as carrying the most weight in the analysis. His Honour was not satisfied that having the accused physically present in the courtroom would meaningfully enhance the purpose of the Victim Impact Statement process.
As the prosecution itself had acknowledged, reading those statements is an important and potentially therapeutic process, but not an exercise in shaming. Taking all relevant factors into account, Hamill J was positively satisfied that it was in the interests of the administration of justice for the accused to appear by AVL.
Issue 3: Fallback position under s 5BB
Hamill J noted that if the prosecution's argument about "physical appearance proceedings" was wrong, s 5BB would apply instead. Under that provision, the default position is reversed: an accused detainee in non-physical-appearance proceedings must appear by AVL unless the court directs otherwise. The AVL direction made under s 5BA would therefore produce the same practical outcome in either event.
Orders Made
- A direction under s 5BA(4)-(5) that the accused appear at the s 31 hearing by AVL from the South Coast Correctional Centre.
Key Takeaways
- The Supreme Court left open whether a s 31 inquiry under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 constitutes a "physical appearance proceeding" under s 3 of the AVL Act, describing the legislation as unclear on the point.
- Under s 5BA of the AVL Act, where proceedings are classified as physical appearance proceedings, the default is physical attendance; an AVL direction requires the court to be affirmatively satisfied it is in the interests of the administration of justice.
- Psychiatric evidence about the accused's mental illness and the risks of transportation can carry significant weight in the administration of justice analysis, even where victims' families have expressed a strong wish for the accused to be physically present.
- A victim's desire to read Victim Impact Statements in the physical presence of the accused is a relevant consideration, but Hamill J found it did not outweigh the psychiatric concerns in the circumstances of this case, noting that the process is therapeutic rather than an exercise in shaming.
- Where the classification of proceedings as physical appearance or non-physical appearance proceedings is uncertain, the practical outcome may be the same either way: under s 5BB, non-physical appearance proceedings carry a default obligation to appear by AVL, making the definitional question less consequential in some cases.
Legislation and Cases Referenced
Legislation
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW) , ss 3, 5BA, 5BB
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 28(1)(b), 31
Cases
- R v Jackson [2021] NSWSC 1404
- R v Lailna [2023] NSWSC 48
- R v Lambros [2023] NSWSC 462
- R v Siemek (No. 1) [2021] NSWSC 1292