R v Lailna

Baltej Singh Lailna ("Mr Lailna" or "the accused”) has been charged with the murder of his wife, Kamaljeet Sidhu, an offence allegedly committed on 20 May 2020 at the couple’s home in Quakers Hill. When the matter was in the Local Court, going through the procedures prior to committal for trial, an issue was raised on Mr Lailna’s behalf as to his fitness to be tried. The matter then was committed to this Court and came before the list Judge on Friday 2 July 2021, where the issue of Mr Lailna's fitness to be tried was again raised and the matter was then listed for hearing today.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) came into effect on 27 March 2021 (the “Act”). The Act substantially replaced earlier mental health legislation, Mental Health Forensic Provisions Act 1990 (NSW) (the “1990 Act”). The Act applies to the question of an accused person’s unfitness to be tried even when those questions were raised before the Act commenced. The Act makes some formulaic changes to the law, but essentially the law remains as it was before the Act came into effect, although some aspects of the law previously governed by the common law are now codified.

In particular, an inquiry such as the one that has been conducted this morning is one which is to be undertaken in a non-adversarial manner. [1] That was the law before the Act and remains the law now. Similarly, it remains he case that the Court itself or either of the parties to the case (that is, the prosecution or the accused) can raise the issue of fitness. [2] No party bears an onus, but the question of fitness is to be determined on the balance of probabilities. [3] Any determination made by a court on the question of fitness must be justified by reasons, including principles of law applied by the judge and the findings of fact upon which the judge relied. [4]

The provisions of the Act were considered by Beech-Jones J (as his Honour then was) in a case called R v Risi [2021] NSWSC 769 (“Risi”). The principles of law that I apply are those to be found in the Act and, where necessary, as explained by the now Chief Judge at Common Law in Risi.

The parties agreed upon a number of documents to be tendered in the proceedings. That included a prosecution case statement, a transcript of an interaction between the accused and police recorded by way of a body worn video and a transcript of an electronically recorded interview with the accused (“ERISP”). The material satisfies me that, for the purpose of this hearing, at about 6.00pm on 20 May 2020 Mr Lailna used a kitchen knife to stab his wife, Kamaljeet Sidhu. Those stab wounds turned out to be fatal.

It seems very shortly after the stabbing the accused made contact with the deceased's brother and told him he had stabbed or murdered his wife. The accused also made admissions to committing the relevant acts when he spoke with the police shortly afterwards and in the course of the ERISP. Whilst I have not viewed or listened to the ERISP, at least some of the answers provided by the accused in the transcript might be thought to demonstrate some form of delusional belief or paranoia.

The evidence shows - and is helpfully set out in a chronology provided by counsel for the accused - that just a couple of weeks earlier and as recently as the day before the offence, the accused presented at Blacktown Hospital exhibiting signs of holding delusional beliefs. It was in that context that the solicitor for the applicant engaged Dr Richard Furst to provide opinions of various matters relevant to the proceedings, including the question of the accused's fitness to be tried.

Dr Furst met with and interviewed the accused on 20 October 2020 and conducted a survey of various documents concerning his mental health. The contents of that interview are set out in Dr Furst's report, as well as his review of a number of relevant documents. It is unnecessary for the purpose of this judgment to set that out in any detail.

Dr Furst concluded that Mr Lailna met the diagnostic criteria for schizophrenia. Dr Furst also considered the question of whether that illness would impact upon Mr Lailna’s fitness to stand trial at pages 7 – 8 of his report:

Those representing the Director of Public Prosecutions then engaged Dr Jeremy O'Dea, who considered similar material to Dr Furst and interviewed Mr Lailna on 28 January 2021. Dr O'Dea also provided opinions as to the issue of whether Mr Lailna was fit to be tried. He then prepared a report, which was reviewed in turn by Dr Furst.

This morning Dr Furst gave evidence and agreed that Dr O'Dea's opinion, and the history that Dr O'Dea took, appeared to present a more powerful case that Mr Lailna is not fit to be tried. Based on the reported presentation of the accused at the time of Dr O'Dea's interview, Dr Furst said he agreed with the opinions expressed by Dr O'Dea.

Both Dr O'Dea and Dr Furst addressed the question of the accused's fitness to be tried, based on what was known under the common law as the “Presser Criteria”. Those criteria have been essentially codified in s 36 of the Act:

When Mr Lailna was interviewed by Dr O'Dea and asked what the charges were and with which he was charged, the answer he gave was: “My lawyer knows, I dunno”. When asked what he had been accused of doing he replied: “I dunno”. When asked whether his case was in the District or the Supreme Court, he replied: "I dunno…they didn't tell me".

Dr O'Dea went on to ask Mr Lailna much more direct questions, during which time he, as he had with the police, acknowledged that he had committed the stabbing of his wife and that he had "done everything" of which he was accused. At the same time he expressed some thoughts which might have been considered to be - and were considered to be by the expert psychiatrist – paranoid beliefs. For example he said, "I told the police that I stabbed my wife… [because] she was bashing me…she was killing me…because she was giving me the medication that was killing me…I dunno what it was…It stopped my breathing". And the answer goes on from there in a similar vein.

He was also asked about an answer he had given to the police to the effect that, “his wife, her brother and others were all conspiring against him in a large fraud”, and he replied, "everyone was working to kill me, I dunno, now it's the police… doctors…lawyers… yes". Mr Lailna also told Dr O'Dea that he had heard voices telling him to stab his wife, but the voices had not told him to do other things.

Dr O'Dea also noted Mr Lailna's progress following his arrest in August 2018. That material becomes relevant at the second stage of the inquiry, namely whether or not there is a likelihood that Mr Lailna would become fit to be tried for the offence in the next 12 months. It is clear that further psychotic and delusional symptoms were exhibited by Mr Lailna in that period after his arrest. For example, Mr Lailna questioned whether the deceased was in fact his wife "because he said it may have been a duplicate".

Dr O'Dea raised what he described as "Further Fitness Issues" in the following section of his report:

Dr O'Dea also described Mr Lailna's presentation in the interview:

Dr O'Dea expressed the clear opinion that Mr Lailna has a history of severe treatment resistant schizophrenic illness, complicated by a history of substance use disorder. He set out the characteristics of that illness in his report:

Dr O'Dea's opinion was that the symptoms and existence of the schizophrenic illness remained at the time of his interview, in spite of treatment during the period on remand. Dr O'Dea was of the opinion that Mr Lailna did not demonstrate an adequate understanding of the charge and that he did not convey an adequate understanding of the pleas available to him and their consequences. He also was of the opinion that Mr Lailna did not have an adequate understanding of the roles and responsibilities of the people in court and his rights in relation to court proceedings. Dr O'Dea took into account certain cultural issues and a language barrier, but was of the view that the schizophrenic illness and the associated cognitive impairment played a significant part in those deficits to which I have just referred.

As I have said, having reviewed Dr O'Dea's report, Dr Furst shared those opinions. Even though he performed better when he was spoken to by Dr Furst, Dr Furst in his initial report indicated that Mr Lailna's illness and lack of insight would act as a barrier to him raising relevant defences.

The criteria in s 36 of the Act do not purport to be exhaustive. [5] Based on the material before me and paying appropriate deference to the opinions of the two psychiatrists, I have come to the following factual conclusions:

Section 36 of the Act says if an accused person cannot do one or more of the matters in sub-s (a)-(i), some of which I have identified in my factual findings (in the preceding paragraph), that person is "taken to be unfit to be tried for an offence". Accordingly, I will find that Mr Lailna is not fit to be tried at this stage.

Having come to that conclusion, s 47(1) of the Act says that:

As Beech-Jones J pointed out in Risi, s 47 presents the Court with a “binary choice” and that:

Both Dr O'Dea and Dr Furst suggest that the introduction of Clozapine, an antipsychotic medication, may assist in resolving, settling or ameliorating Mr Lailna's current symptoms. Dr O'Dea puts it plainly in para 61 of his report:

I am satisfied, pursuant to s 47(1)(a), that Mr Lailna may become fit to be tried for the offence during the next 12 months. Sections 47 – 49 of the Act provide for the kinds of orders that should be made in the light of those findings, and the parties seem to be in agreement with the orders that should be made. I too agree with the proposed orders set out in the prosecutor's submissions.

For the foregoing reasons, I make the following orders: