R v Siemek (No. 2) - [2021] NSWSC 1293

Supreme Court

New South Wales

Medium Neutral Citation: R v Siemek (No. 2) [2021] NSWSC 1293
Hearing dates: 13 October 2021
Date of orders: 13 October 2021
Decision date: 13 October 2021
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1 Pursuant to s.33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the Court orders that Justin Karl Siemek be detained in a correctional facility, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.
2 Pursuant to s.34 Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the Court refers Justin Karl Siemek to the Mental Health Review Tribunal.
3 In addition:
(a) The Registrar is to notify the Minister for Health and Medical Research, as soon as practicable, of the making of these orders.
(b) The Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation:
(i) a copy of the Court’s reasons for verdict and for making these orders;
(ii) the transcript of the trial;
(iii) copies of exhibits from the trial including the reports of Professor Greenberg and Dr Furst;
(iv) a copy of the victim impact statement of Kelly Hipolito.
(c) The Registrar is directed to notify Justice Health and Forensic Mental Health Network, as soon as practicable, of the verdict and orders in this matter and to provide to Justice Health copies of the following documents:
(i) a copy of the reasons of the Court for verdict and making these orders;
(ii) copies of the reports of Professor Greenberg and Dr Furst.

Catchwords:
CRIME – Judge alone trial – murder – special verdict of “act proven but not criminally responsible” – consideration of orders to be made under ss.33 and 34 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – victim impact statement of family member received under s.30L Crimes (Sentencing Procedure) Act 1999 – importance of victim impact statement – orders made including order for detention until release by due process of law

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:
Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392
R v Kemball [2020] NSWSC 1559

Texts Cited:
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Category: Sentence
Parties: Regina (Crown)
Justin Karl Siemek (Accused)
Representation:
Counsel:
Mr BN Queenan (Crown)
Mr B Neild (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2020/158889
Publication restriction: ---

Judgment

JOHNSON J: Earlier today, the Accused, Justin Karl Siemek, was found to have committed an act that led to the death of Vincent Evans without being criminally responsible for that act due to a mental health impairment within ss.4 and 28 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“MHCIFP Act”). A special verdict of “act proven…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Siemek (No. 2)

Details

AGLC: R v Siemek (No. 2) [2021] NSWSC 1293
Case: [2021] NSWSC 1293
Decision Date: 13 October 2021

CaseChat Overview and Summary

The case of R v Siemek (No. 2) involved the respondent, Siemek, who had been charged with murder. The trial was held in the District Court of New South Wales. The primary legal issue the court had to address was whether Siemek was criminally responsible for the murder, given the special verdict of "act proven but not criminally responsible" rendered by the jury. This verdict raised questions about the appropriate orders to be made under sections 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The court also considered a victim impact statement submitted by a family member of the deceased under section 30L of the Crimes (Sentencing Procedure) Act 1999. The court's task was to balance Siemek's mental health needs with the need to ensure public safety, while also considering the emotional impact of the crime on the victim's family.

The court examined Siemek's mental health status and the evidence presented during the trial, including expert psychiatric opinions. It was crucial to determine whether Siemek had the capacity to understand the nature and quality of the act or to know it was wrong at the time of the offence. The court also assessed the risk Siemek posed to the community if not detained. The victim impact statement provided by the deceased's family was given significant weight, as it highlighted the profound emotional and psychological harm caused by the crime. This statement was instrumental in shaping the court's understanding of the broader impact of Siemek's actions and the need for measures that would protect the community and provide support for the victim's family.

After careful consideration of the evidence and the submissions made by both parties, the court concluded that Siemek was not criminally responsible for the murder. Consequently, the court made orders under sections 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. These included an order for Siemek's detention in a secure mental health facility until his release by due process of law, reflecting the need for ongoing treatment and supervision. The court also acknowledged the importance of the victim impact statement in informing its decision-making process. The final orders ensured that Siemek received appropriate mental health care while also addressing the safety concerns of the community and the emotional needs of the victim's family.

Orders