R v Siwan

[2024] NSWDC 83

District Court

New South Wales

Medium Neutral Citation:	R v Siwan [2024] NSWDC 83
Hearing dates:	15 March 2024
Decision date:	15 March 2024
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Return proceedings to the Local Court for a further committal hearing.
Catchwords:	Fitness for trial - defence of mental health impairment.
Legislation Cited:	Criminal Procedure Act 1986 (NSW), ss58, 101(1)(c); Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s39, 40(2)
Category:	Procedural rulings
Parties:	Rex (Crown/respondent) Avinesh Siwan (Applicant)
Representation:	Mr Rose (ODPP Parramatta) Mr Diyab (Solicitor for the Applicant)
File Number(s):	2022/00322965
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Presently before the Court is an application by Avinesh Siwan for the four common assault proceedings committed for sentence by the Local Court to this Court on 14 June 2023 to be referred back to the Local Court pursuant s 101(1)(c) of the Criminal Procedure Act 1986 (NSW).

2. I intend to grant the application, which is not opposed by the Crown, but, before doing so, I want to say something about the most unfortunate history of this matter.

3. On 27 and 28 October 2022, Mr Siwan allegedly committed four common assaults. They involved violence but, for offences of their kind (and without the benefit of submissions), my preliminary opinion is that they are probably towards, but not at, the mid‑range of objective seriousness.

4. By reason of the application of s 58 of the Criminal Procedure Act, and because Mr Siwan was already serving a term of imprisonment, a decision was made for this Court to be the sentencing Court for those four offences.

5. The matter was listed for mention before the list judge of this registry on 14 July 2023 and a sentence hearing date of 6 September 2023 was appointed. The sentence hearing was allocated to me on that date.

6. In accordance with the directions and orders of the list judge, both the Crown and the legal advisors for Mr Siwan filed proposed tender bundles with the registry in anticipation of the sentence hearing.

7. I had the opportunity of reading those bundles the night before the sentence hearing. I was deeply concerned at the contents of medical reports in those bundles because they revealed that Mr Siwan was, and had been for some considerable period of time, severely afflicted by the debilitating mental illness of schizophrenia.

8. Accordingly, when the matter was first called on before me on 6 September 2023, I raised with the legal representatives then appearing for the Crown and the offender whether either of them had considered whether Mr Siwan was fit to plead. Each said that she had not. Each agreed that the medical reports contained within the proposed tender bundles, on their face, gave rise to the potential issue of fitness to plea.

9. The Court accordingly of its own motion raised the question of fitness (cf Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s.39) and directed that steps be taken by the Crown to have Mr Siwan appropriately examined. The matter was stood over (for mention only) to 10 November 2023.

10. When the matter came before the Court on 10 November 2023, that is at the conclusion of a nine week adjournment, the Court was informed that the Crown had been unsuccessful in obtaining a psychiatric assessment report for Mr Siwan, in part because Mr Siwan did not consent to participating in a fitness assessment. That last statement contains no personal criticism of Mr Siwan bearing in mind the nature of the mental illness from which he suffers.

11. Accordingly, on 10 November 2023 I ordered Justice Health to prepare a detailed report regarding the mental health and psychiatric issues of Mr Siwan with particular emphasis on his fitness for trial within the meaning of Part 4 Division 4 of Mental Health and Cognitive Impairment Forensics Provisions Act.

12. In ordering that report, I noted that, if Mr Siwan did not agree to participate in the assessment, Justice Health was asked to prepare a report based on Mr Siwan’s Justice Health records and documents. The matter was stood over for mention to 2 February 2024 bearing in mind the impending Christmas break and the workload of the psychiatrists working for Justice Health.

13. On or shortly after 31 January 2024 the Court received a comprehensive and detailed report dated 31 January 2024 from Dr Ellis. It is obvious from a reading of that report that Dr Ellis contributed an enormous amount of work in the preparation of the report and, at the conclusion of this matter, the Court will write to Dr Ellis expressing its thanks for his efforts. That letter has not been sent to date because the matter has not yet finalised.

14. Dr Ellis’s report sets out succinctly the very serious mental health issues confronting Mr Siwan. Dr Ellis ultimately concluded that, applying the statutory criteria for fitness for trial, Mr Siwan was fit to plead. I therefore determined, pursuant to s40(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act that there was no longer any need for an Inquiry as to fitness to be held.

15. Dr Ellis went on, however, to express the opinion in his report that the defence of mental health impairment was available to Mr Siwan.

16. When the matter was listed for mention before me on 2 February 2024 no application for the matter to be returned to the Local Court was made either by the Crown or the legal representative then appearing for Mr Siwan. Rather both parties asked for the matter to proceed to sentence and, accordingly, today was fixed for that hearing date.

17. In the interval, and on 28 February 2024, the solicitor formerly acting for Mr Siwan sent an email to the Court: first, seeking to vacate that hearing date which was refused in chambers (the hearing date having been fixed with the expressed agreement and consent of that solicitor); and secondly, foreshadowing an application under 101(1)(c) of the Criminal Procedure Act.

18. The sentence hearing resumed today. The foreshadowed application was not raised by the (new) solicitor for Mr Siwan at the commencement of that hearing. A review of the transcript will show in that, in many respects, the manner in which it progressed was unsatisfactory - not least because it is self‑evident that both of the legal representatives appearing today assumed that a further application for adjournment made on behalf of Mr Siwan would be granted. That was a naive assumption, and wrong, particularly given the long history of the matter which I have just set out.

19. Well into the sentencing hearing, and after the evidence had been tendered, a belated application was made on behalf of Mr Siwan in accordance with the email correspondence of 28 February 2024. That application, as I have said, was not opposed by the Crown.

20. Reference to the transcript will also reveal some other less than satisfactory aspects about these proceedings because they are not the only proceedings involving this seriously ill man in the criminal justice system.

21. He is the subject of a Community Correction Order imposed by the Liverpool Local Court. These offences before me constitute breaches of that Community Corrections Order but, for reasons not known to me, that matter has not been brought to the attention of that Local Court.

22. Further, yesterday, Mr Siwan appeared before a magistrate in the Bathurst Local Court where he received a term of imprisonment.

23. Why it was that no one thought it appropriate to have all of these disparate matters brought before one judicial officer who could dispose of everything, namely this Court today, I find difficult to understand.

24. I make an order pursuant to s 101(1)(c) of the Criminal Procedure Act to return these proceedings to the Local Court at Campbelltown for a further committal hearing, with the intent that, on that occasion, Mr Siwan will enter a plea of not guilty to the four counts with which I am concerned, and the matter will proceed to a hearing to give Mr Siwan the opportunity of availing himself of the mental health defence so clearly articulated by Dr Ellis in his very careful report.

25. It will be a matter for the Crown’s judgment to decide whether it wishes to contest any such matter in the District Court at such a hearing.

26. In conclusion, and in passing, I note that the Crown sentence summary sheet tendered today (exhibit A) contains the wrong H numbers for sequences 1, 5 and 6.

27. The matter is listed before the list magistrate in Campbelltown at 9.30am on 27 March 2024.

28. In the circumstances, I direct that a s 77 warrant be issued for Mr Siwan to appear via audio visual link before the Local Court on that date.

29. I direct that these remarks be transcribed and placed in the Court fille.

30. ADJOURNED TO 27 MARCH 2024 AT 9.30AM BEFORE LIST MAGISTRATE IN CAMPBELLTOWN

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Decision last updated: 27 March 2024