R v Eleter

[2023] NSWSC 931

Supreme Court

New South Wales

Medium Neutral Citation:

R v Eleter [2023] NSWSC 931

Hearing dates:

07 August 2023

Date of orders:

07 August 2023

Decision date:

10 August 2023

Jurisdiction:

Common Law - Criminal

Before:

Weinstein J

Decision:

See [71]

Catchwords:

CRIME – murder – deceased stabbed multiple times - defence of mental health impairment – special verdict where prosecutor and defendant agree that defence available under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 – court satisfied that evidence satisfies defence is established – court enters special verdict of act proven but defendant not criminally responsible

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:

Fleming v R (1998) 197 CLR 250; [1998] HCA 68

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

Category:

Principal judgment

Parties:

Rex (Crown)
Mahmoud Eleter (Accused)

Representation:

Counsel:
K Jeffreys (Crown)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2021/345586

Publication restriction:

Nil

JUDGMENT

1. The accused, Mahmoud Eleter, stands charged with the murder of Lydia Gacuma on 5 December 2021 contrary to s 18 of the Crimes Act 1900. When Mr Eleter was arraigned in this Court on 7 July 2023, he pleaded not guilty by reason of mental health impairment. On that date the Crown Prosecutor and the accused’s solicitor advised the Court of their agreement, for the purpose of s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act), that the anticipated evidence established a defence of mental health impairment pursuant to s 28 of the Act.

2. On 7 August 2023 the accused was re-arraigned. He once again pleaded not guilty by reason of mental health impairment. Thereafter a special hearing was conducted to determine whether or not the evidence established a defence of mental health impairment. I was so satisfied and entered a special verdict of act proven but not criminally responsible pursuant to s 31 of the Act. I then made further orders and directions.

3. I am grateful to Ms Jeffreys who appeared on behalf of the Crown, and to Ms Coultas-Roberts who appeared on behalf of the accused, for the collaborative manner in which they conducted these proceedings. As I explained to the various persons who were in attendance and online, the purpose of this special hearing was so that I could consider the agreed position of the Crown and the accused by carefully examining the evidence that was put before me. I explained that this was not a trial by judge alone, and was neither adversarial nor accusatorial. Rather, it was an inquiry instigated by the parties at an early stage to obviate the need for a lengthy and costly trial, when both the prosecution and the defence believe that on the available evidence, a defence of mental health impairment was established. It is for the court to find facts and to apply ss 4 and 28 of the Act to determine whether or not the court is satisfied that the defence of mental health impairment is so established.

4. This was not a judge alone trial in the sense prescribed by s 133 of the Criminal Procedure Act 1986. I am not required to expose my reasoning process linking the principles of law with the facts found and which justify the verdict I have reached: Fleming v R (1998) 197 CLR 250; [1998] HCA 68. However, in the interests of transparency and in conformity with the principle of open justice, what follows are my reasons for making the orders and directions on 7 August 2023.

Evidence

5. The following documents were tendered in the proceedings and comprised the entirety of the evidence:

1. A bundle tendered by the Crown which contained a Statement of Agreed Facts signed by Mr Eleter and his solicitor on 31 July 2023 and by the Crown Prosecutor on 7 August 2023, a report of Dr Kerri Eagle, forensic psychiatrist dated 24 March 2023, three photographs (two of the crime scene and one of the knife used as the weapon) and a screenshot from Google Maps of the Riverwood area where the event occurred (Exhibit 1);

2. A report of Dr Andrew Ellis, forensic psychiatrist, dated 19 August 2022 tendered by the defendant (Exhibit 2); and

3. A bundle tendered by the Crown after I entered the special verdict, comprising Mr Eleter’s criminal history and a victim impact statement admitted pursuant to section 30L of the Crimes (Sentencing Procedure) Act 1999 prepared by the victim’s daughter, Jocelyne Gacuma which was read in court by a victim support officer. The victim impact statement also contained six photographs of the deceased, Ms Lydia Gacuma (Exhibit 3).

Statement of Agreed Facts

6. The Statement of Agreed Facts, which I summarise below, contain the following facts which I find:-

Background

7. Mr Eleter was born in 1997 and is now 26 years old. He lived in the family home in Riverwood with his mother, father, an older sister, a younger sister and a younger brother.

8. The deceased is Lydia Gacuma who was 67 years of age at the date of her death. She too lived in Riverwood. The accused and the deceased were not known to one another.

Behaviour of the Accused Prior to 5 December 2021

9. The accused has a long history of mental illness which is detailed in the reports of forensic psychiatrists Dr Kerri Eagle and Dr Andrew Ellis (to which see below). He has diagnoses of schizophrenia and borderline intellectual disability.

10. During 2021 the accused had six admissions (both voluntary and involuntary) to psychiatric units at Bankstown, Liverpool and St George Hospitals, all of which related to manifestations of his schizophrenic illness.

11. At the time of the offence the accused was non-compliant with his medication.

12. In the weeks prior to the incident, one of Mr Eleter’s sisters observed that he had become increasingly angry and would scream “Get out of my head, get out of my body, go away, piss off, fuck off, stop it, leave me alone.”

Events on 5 December 2021

13. At about 8:30 am - 9:00 am on Sunday 5 December 2021, the accused’s mother saw him run out the front door of the family home. As he ran down the street, the accused was screaming words to the effect of “Get off my head, get off my heart, leave my body.” She followed the accused and called to him, but she went back inside the house when he did not respond. CCTV captured the accused leaving the home at 9:00 am. He was observed punching the air multiple times and displaying extreme levels of aggression.

14. From the balcony of her home, Mr Eleter’s mother saw him in the park behind the house. He was walking in circles around the park and waving his arms, screaming words to the effect of “Get out of my head, get out of my heart, leave me alone.” The accused’s screaming woke his sisters.

15. An ambulance was called. Ambulance officers attended about 30 minutes later. Police were called to assist and arrived at about 9:55 am. The accused could not be located and his family were told to call police if he was located.

16. At 6:17 pm the deceased and her daughter Jocelyne Gacuma spoke on the phone. The deceased asked her daughter for money to buy cigarettes. The deceased visited Jocelyne’s home at about 6:30 pm and Jocelyne gave the deceased $15 in cash. The deceased told Jocelyne that she was going to buy cigarettes from the newsagency in Riverwood and she left the house.

17. At 7:05 pm the deceased was captured on CCTV buying cigarettes from the tobacconist at the Riverwood shops. Whilst purchasing the cigarettes she was speaking to Jocelyne over the phone.

18. Ms Gacuma continued to speak to her daughter as she walked home to her unit. At 7:11 pm, CCTV footage captures the accused assisting the deceased with her walker to navigate off the footbath to cross the road. The accused followed the deceased towards her unit block. The accused then stabbed Ms Gacuma in the carpark underneath her unit block, while she was still on the phone with her daughter.

19. Jocelyne heard the deceased say “I’ve been stabbed, somebody attacked me, ring the police.” Jocelyne believed that the deceased was crying but her voice was “still clear.” The deceased then said words to the effect of “Jocelyne I am getting stabbed. I am being attacked.” Jocelyne then “lost” the deceased’s voice. After the deceased stopped speaking, Jocelyne could hear a male voice speaking in a calm, soft, relaxed voice. She believed that the male was speaking to himself.

20. Jocelyne terminated the phone call with the deceased and called 000 at 7:19 pm.

21. Sometime after 7:10 pm, a female resident of Ms Gacuma’s unit block heard a woman screaming. Her partner went downstairs to see what was happening. He noticed a man wearing a dark tracksuit top and long dark pants walking in a westerly direction from underneath the southern wing of the building, whom he recognised as the accused.

22. Another resident of the unit block heard screaming and looked out of his bedroom window. He saw a person lying on the ground and moving. The screaming stopped. He next saw a white shoe nudge the deceased’s head a few times, and he then observed a male walking from behind the garage towards the street. His description of the male’s appearance is consistent with that of the accused.

23. The deceased was located by residents lying face down with blood around her.

Paramedics attend

24. An ambulance was dispatched and it arrived at the unit block at 7:27 pm. An ambulance officer saw blood on the deceased’s head, in her hair and on her scarf. He checked for a pulse and realised that the deceased was in cardiac arrest. He noticed a wound on the deceased’s neck. Whilst attempting to place defibrillator patches, he noticed numerous cuts to the deceased’s t-shirt and he observed that her jacket was heavy and soaked with blood. He then noticed that the deceased had been stabbed numerous times.

25. Paramedics attempted resuscitation, but Ms Gacuma was pronounced dead at 7:55 pm.

Arrest

26. At about 7:50 pm, police arrived at the Eleter residence to assist with the search for the accused. A police officer opened a door in the hallway and saw the accused lying in bed. He appeared wet and was naked except for a blanket up to his waist. There was a pair of white joggers and grey track suit pants on the bedroom floor. In the hallway, the bathroom door was open and there was blood and water on the bathroom floor.

27. Police arrested the accused and dressed him in a forensic suit. Swabs were taken from the accused’s hands. DNA consistent with the deceased was detected on multiple swabs from each of the accused’s hands.

28. Police took the accused to Campsie Police Station where he was held in the cells. The custody manager arranged for a support person to attend. At about 11:00 pm, a police officer spoke to the accused in the cells and had a conversation with him to the following effect:

Police officer:      Do you know why you are here?

Accused:             Um, no.

Police officer:      The allegation is that you have stabbed a lady.

Accused:             Yeah okay, is she dead?

Police officer:      Yes.

Accused:            Okay.

Police officer:      Do you know?

Accused:            Yeah, I know what you’re talking about, I stabbed her.

Police officer:      Okay, you stabbed her.

Accused:            Yeah. Will I go to gaol for life?

29. A support person arrived at Campsie Police Station at about 11:50 pm.

30. At 1:23 am on Monday 6 December 2021, the accused was cautioned in the cells. A police officer had a conversation with the accused to the following effect:

Police officer:      Can I ask why you stabbed her?

Accused:             My mental health.

Police officer:      Your mental health?

Accused:             Yeah, it has a serious impact on me. And I know what I did was completely wrong, and completely disgusting, and I deeply regret it.

Police officer:      Did you take her phone?

Accused:             Yes.

Police officer:      And where is the--

Accused:            The phone’s at my house. It should be in my house. The murder weapon is in the house.

31. The accused told police that he gave the knife to his sister. He did not take part in an electronically recorded interview.

32. At about 6:45 am on Monday 6 December 2021, police took the accused to St George Hospital to obtain a blood and urine sample. A small amount of methylamphetamine was detected.

Post-arrest investigations

33. Police declared a crime scene at the Eleter residence.

34. A black ‘Gerber’ branded flick knife was found in the top shelf wardrobe in the main bedroom. A DNA profile recovered from the blood stains on the knife was matched to the deceased.

35. A black ‘Gorilla Grip’ branded glove was also located in the top shelf wardrobe in the main bedroom. It was wet and stained with blood. A black ‘Ellesse’ brand jacket was located in the laundry. There were blood stains on the jacket. A mobile phone with a sticker reading “Mahmoud ELETER” was found in the pocket of the jacket. Blood-stained grey track pants and the deceased’s mobile phone were located in the accused’s bedroom.

36. Blood stains with DNA consistent with the deceased were located on several surfaces in the accused’s house, including on the bathroom door, the toilet door and the wardrobe wall of one of the bedrooms.

Autopsy

37. On 8 December 2021, a forensic pathologist, conducted a post-mortem forensic examination of the deceased. The direct cause of death was determined to be multiple stab wounds. There were over 120 stab wounds to the deceased. There was a stab wound on the left anterolateral aspect of the neck with a perforation in the internal jugular vein. Forty-nine stab wounds were present on the left posterior and lateral aspect of the back extending through the back muscles, the ribs and into the left lung, where at least 20 stab wounds were found. Thirty stab wounds were present on the left anterior aspect of the torso, and there were 2 stab wounds in the left abdominal area extending through the ribs into the left lung and heart. Fifteen stab wounds were present on the right posterior and lateral aspect of the back, extending into the ribs and the underlying lung. There were 12 wounds present on the right anterior aspect of the torso. There were 7 stab wounds on the left arm and hand, and 15 incision wounds on the arm and hand. There was a stab wound on the right upper arm and 3 stab wounds on the right hand. There were 2 stab wounds on the left leg.

38. A radiological examination showed a pneumothorax, pneumoperitoneum and hemopericardium. Multiple rib fractures were present. The fourth metacarpal bone of the hand showed a fracture.

39. The accused committed the acts that establish the physical elements of the offence, namely that he stabbed the deceased with a knife over 120 times.

Legislative framework

40. Sections 4 and 5 of the Act defines mental health impairment and cognitive impairment as follows:

4    Mental health impairment

(1)  For the purposes of this Act, a person has a mental health impairment if—

(a)  the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b)  the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c)  the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

(2)  A mental health impairment may arise from any of the following disorders but may also arise for other reasons—

(a)  an anxiety disorder,

(b)  an affective disorder, including clinical depression and bipolar disorder,

(c)  a psychotic disorder,

(d)  a substance induced mental disorder that is not temporary.

(3)  A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—

(a)  the temporary effect of ingesting a substance, or

(b)  a substance use disorder.

5      Cognitive impairment

(1)  For the purposes of this Act, a person has a cognitive impairment if—

(a)  the person has an ongoing impairment in adaptive functioning, and

(b)  the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and

(c)  the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

(2)  A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—

(a)  intellectual disability,

(b)  borderline intellectual functioning,

(c)  dementia,

(d)  an acquired brain injury,

(e)  drug or alcohol related brain damage, including foetal alcohol spectrum disorder,

(f)  autism spectrum disorder

41. Section 28 of the Act provides a defence of mental health impairment or cognitive impairment:

28   Defence of mental health impairment or cognitive impairment

(1)  A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person—

(a)  did not know the nature and quality of the act, or

(b)  did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

(2)  The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.

(3)  Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.

(4)  In this Part, act includes—

(a)  an omission, and

(b)  a series of acts or omissions.

42. Section 31 of the Act provides the Court with the power to enter a special verdict under the Act when the defendant and prosecutor agree that the proposed evidence establishes a defence of mental health impairment or cognitive impairment:

31   Special verdict where defendant and prosecutor agree on impairment

The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if—

(a)  the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and

(b)  the defendant is represented by an Australian legal practitioner, and

(c)  the court, after considering that evidence, is satisfied that the defence is so established.

Evidence

43. I will now summarise the two forensic psychiatrist reports tendered by the parties. Both Dr Eagle and Dr Ellis are well regarded experts in their field.

Dr Kerri Eagle

44. Dr Eagle conducted a psychiatric assessment of Mr Eleter in custody on 14 March 2023 for 90 minutes, and had a 15 minute telephone call with him on 22 March 2023. She was provided with extensive material from the police brief. At the time of assessment, Mr Eleter was taking olanzapine tablets in the morning, paliperidone tablets at night and an olanzapine depot every two weeks. Dr Eagle reported on 24 March 2023.

45. Dr Eagle set out, at length, the accused’s documented psychiatric history which includes a first admission to a psychiatric unit at 12 years of age when he reported hearing voices. He had frequent admissions to psychiatric units (both voluntary and involuntary) and interactions with mental health services thereafter, more often than not when experiencing persecutory delusions and auditory hallucinations. His presentations escalated from early 2020, in the context of non-compliance with treatment and poor engagement with mental health services. A Community Treatment Order was granted for 6 months in mid-2020, but it was revoked in November 2020 due to Mr Eleter’s inability to comply with the terms of the order. He had six admissions to psychiatric units in 2021.

44. In Dr Eagle’s opinion, the accused was acutely psychotic at the time of the alleged offence. She observed that he appeared to be experiencing intense auditory hallucinations, delusions and passivity phenomena. He was observed by several witnesses responding to unseen or internal stimuli in a manner consistent with experiencing auditory hallucinations prior to the offending. In Dr Eagle’s view, the accused was likely pre-occupied with intense internal stimuli (hallucinations) that were distressing, and had a persecutory belief that the voices were “demons” wanting to harm him. The accused said that he was hearing voices telling him to kill someone and he informed Justice Health staff following his reception into custody in December 2021 that he was “under the control of an external force” at the time of the alleged offence.

45. In Dr Eagle’s view, the accused’s symptoms of psychosis fulfil diagnostic criteria for a psychotic exacerbation of schizophrenia which resulted in a disturbance of thought, mood, volition, perception and (potentially) memory at the time of the alleged offending. She is of the opinion that his symptoms were significant for clinical diagnostic purposes and that his psychotic state impaired his judgment, influenced his behaviour and impaired his emotional well-being. On that basis, Dr Eagle is of the view that Mr Eleter has a mental health impairment within the meaning of s 4 of the Act. She also referred to the accused’s diagnosis of mild intellectual disability. She observes that Mr Eleter has consistently been observed to display deficits in adaptive function. On that basis, Dr Eagle is of the view that Mr Eleter also likely has a cognitive impairment within the meaning of s 5 of the Act.

46. Dr Eagle refers to the methylamphetamine which was detected in the accused’s blood and urine after his arrest, noting that he denied any substance abuse. In her view, methylamphetamine use would have exacerbated Mr Eleter’s symptoms of psychosis. She distinguishes the accused’s chronic illness, with persistent symptoms of psychosis in the absence of substance abuse, from the temporary effects of ingesting such a substance.

47. In Dr Eagle’s opinion, the accused appeared aware of the physical quality of his actions and was likely able to reason as to the legal wrongfulness of his actions following the event. However, due to the severe episode of psychosis he was suffering at the time of the event, she is of the view that Mr Eleter was unable to reason as to the moral wrongfulness of his actions at the time: s 28(1)(b) of the Act.

Report of Dr Andrew Ellis

50. Dr Ellis, forensic psychiatrist, reported on 19 August 2022. He had a 30 minute telephone call with Mr Eleter on 5 July 2022 and then conducted a 2 hour clinical interview with Mr Eleter at Long Bay Hospital Correctional Centre on 19 July 2022. Dr Ellis was provided with parts of the police brief, extracts of the accused’s medical records and he had a discussion with Dr Elizabeth Jackson, Justice Health psychiatrist, prior to preparing his report.

51. Dr Ellis notes that prior to his arrest, Mr Eleter was living with his extended family in Department of Housing accommodation. He had never been employed and was in receipt of a disability support pension for his schizophrenia. He was under the care of various community and inpatient mental health teams in the latter half of 2021 and was non-compliant with his medication.

52. Mr Eleter reported first hearing voices when he was about 7 years of age. He told Dr Ellis (contrary to what was contained in the medical records) that the voices went away between the ages of 13 and 23. Mr Eleter told Dr Ellis that he hears both male and female voices, who he believes are demons. He said that they tell him to “kill yourself, you can’t take care of yourself, I hate you, I hope you never achieve anything in life, grab the officer, punch the officer.” They also talk to each other and comment on his behaviour. Mr Eleter told Dr Ellis that he talks back and resists the voices. Since being on medication in custody, the accused reported that they have become fifty percent less prominent. However, he still experiences them daily when he is alone in his cell. He also sees an image inside his mind of a “beautiful lady” who has black eyes, tattoos, rings and an evil face, who he believes is an image of his mental illness, and which is “a demon itself.” He believes that demons can enter computer games and communicate with him. He experiences thoughts of suicide when he hears the voices.

53. Dr Ellis noted the accused’s extensive documented psychiatric history, which was consistent with that recorded by Dr Eagle. He observes that in 2021, Mr Eleter’s psychiatric care became fractured between multiple services. He was distressed by the limitations on his activities due to COVID-19 restrictions. He had one failed placement in NDIS supported accommodation.

54. Mr Eleter told Dr Ellis that in early December 2021, he was living with his family and was only sometimes compliant with his medication. On the day of the offence, Mr Eleter felt possessed by his mental illness and the voices told him to buy a knife and kill someone. He felt that he could not resist the voices who directed him to kill the woman. The voices told him to take her phone. Mr Eleter told Dr Ellis that it was difficult to remember what had occurred, but by the time of his arrest he had napped and the voices were gone for a short period of time. Mr Eleter told Dr Ellis that “I was in remorse, I couldn’t believe what I had done.”

55. In Dr Ellis’s opinion, Mr Eleter meets the criteria for a diagnosis of schizophrenia with delusions and hallucinations present for at least the past three years, with a likely insidious onset in childhood with first symptoms noted at age 12. He observed that whilst the accused has shown some improvement when medicated, he has a treatment resistant condition. Mr Eleter was not receiving treatment at the time of the alleged offence, with his last depot medication most likely to have been in October 2021.

56. In Dr Ellis’s view the accused has a mental health impairment (schizophrenia) and a cognitive impairment (borderline intellectual function with possible further decline related to schizophrenia) within the meaning of ss 4 and 5 of the Act. Both were extant at the date of the report and at the date of the offending. Dr Ellis believes that the accused experienced chronic hallucinations which commanded him to action, and a belief that his body, actions and thoughts were controlled by demons.

57. In Dr Ellis’s opinion, the accused likely knew the nature and quality of stabbing someone would lead to potentially lethal outcomes, as this is basic knowledge not impacted by his delusions and hallucinations. However, in his view, the accused’s ability to reflect on the wrongfulness of his actions at the time of the acts was severely impacted by delusions of control and hallucinations, and on that basis, it was not likely that he was able to reflect with a moderate sense and degree of composure as to whether a course of action was right or wrong at the time. Dr Ellis observed that Mr Eleter attributed his actions to a supernatural force controlling him. In his view it is likely that a court could find the defence of mental health impairment or cognitive impairment open to Mr Eleter with respect to the offending.

Parties’ submissions

58. Both the Crown and the accused provided the Court with comprehensive submissions.

59. Ms Jeffreys and Ms Coultas-Roberts each submitted that I would be satisfied on the evidence tendered that Mr Eleter had a mental health impairment and that a defence pursuant to s 28(1)(b) of the Act was made out. They submitted that if I was satisfied that the defence was made out, I should enter a special verdict in accordance with s 31 of the Act. Ms Coultas-Roberts agreed with the orders proposed by the Crown.

60. I raised the issue of cognitive impairment with both Ms Jeffreys and Ms Coultas-Roberts, as both Dr Eagle and Dr Ellis expressed a view that Mr Eleter’s borderline intellectual function satisfied s 5 of the Act. The issue of the accused’s cognitive impairment was not fully explored by either Dr Eagle or Dr Ellis. In my opinion, the most that can be said, absent any neurological or neuropsychological evidence, is that Mr Eleter’s schizophrenia likely exacerbated his cognitive impairment. I do not and cannot find, on the evidence before me, that Mr Eleter’s cognitive impairment had the effect that he did not know the offending was wrong pursuant to s 28(1)(b) of the Act.

Consideration

61. Based on the material in Exhibits 1 and 2, I am satisfied beyond reasonable doubt that Mr Eleter committed the acts that killed Ms Gacuma.

62. Both Dr Eagle and Dr Ellis agree on a diagnosis of schizophrenia. Based on their evidence, I am satisfied on the balance of probabilities that Mr Eleter suffers from a mental health impairment, being schizophrenia, within the meaning of that term in s 4 of the Act. It is a psychotic disorder causing him an ongoing disturbance of thought, mood, volition, perception and memory, and is regarded as significant for clinical diagnostic purposes. The disturbance impairs Mr Eleter’s emotional well-being, judgment and behaviour.

63. Both Dr Eagle and Dr Ellis agree that at the time of the offence, the accused did not know that his actions were wrong. Based on their evidence, I am satisfied on the balance of probabilities that at the time of carrying out the acts that killed Ms Gacuma, Mr Eleter had a mental health impairment (schizophrenia) that had the effect that Mr Eleter did not know that the acts were wrong, i.e., he could not reason with a moderate degree of sense and composure about whether the acts, as perceived by reasonable people, were wrong, satisfying s 28(1)(b) of the Act.

64. I observe that for the purpose of s 31(a) of the Act, the defendant and the prosecutor agree that the evidence in the proceedings establishes a defence of mental health impairment. The defendant is represented by an Australian legal practitioner which satisfies s 31(b) of the Act. After considering the evidence of Dr Eagle and Dr Ellis, I am satisfied on the balance of probabilities that the defence of mental health impairment is established: s 31(c) of the Act.

65. Accordingly, on 7 August 2023, I entered a special verdict of act proven but that Mr Eleter was not criminally responsible pursuant to section 31 of the Act.

Following the Entry of the Special Verdict

66. After I entered the special verdict, I received Exhibit 3 into evidence.

67. The victim impact statement of the deceased’s daughter, Jocelyne Gacuma was received into evidence pursuant to section 30L of the Crimes (Sentencing Procedure) Act 1999, which relevantly provides that a court may accept a victim impact statement after the entry of a special verdict of act proven but not criminally responsible under the Act. The court acknowledges receipt of Ms Jocelyne Gacuma’s victim impact statement. Ms Jocelyne Gacuma describes her mother as a delightful and very patient person with a genuine and beautiful soul. On behalf of the community, the court extends its condolences to Ms Gacuma in recognition of their long and loving relationship. The statement demonstrates that Ms Lydia Gacuma pursued an active life and persevered in the face of considerable personal adversity. We are less as a community because of the death of one of our contributing members.

68. Mr Eleter’s criminal history also formed part of Exhibit 3. I note that Mr Eleter did not stand to be sentenced by the Court. As Johnson J observed in R v Siemek (No 2) [2021] NSWSC 1293 (Siemek (No 2)) at [10]:-

“The Court has been provided with the criminal history of Mr Siemek. It is important to emphasise that Mr Siemek is not being sentenced or punished by the Court. Section 33 of the MHCIFP Act is directed to the protection of persons in the community, together with the welfare of the person who has committed the act which gives rise to the special verdict: Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392 at [87] – [92].”

69. Mr Eleter’s criminal history was said to be relevant in two respects. The first was for the purpose of supporting an order pursuant to section 33(1)(b) of the Act that Mr Eleter be detained in a place and a manner that the Court thinks fit until released by due process of law. No other order was cavilled for in this case. The criminal history was also said to be relevant in demonstrating that the decline in Mr Eleter’s mental health over the last decade mirrors his increasing involvement with the criminal justice system. I observe that the criminal history was tendered by consent, but it was relevant only for the limited purposes referred to above.

70. To paraphrase Johnson J in Siemek (No 2), it is important that the community appreciates the effect of the verdict which has been returned and the orders and directions made by the court. Mr Eleter will remain in custody and be held as a forensic patient under the supervision of the Mental Health Review Tribunal. He may be released only if the Tribunal is satisfied that the safety of the defendant or any member of the public will not be seriously endangered by his release: ss 29(d) and 84(2) of the Act. His case will be reviewed by the Tribunal as soon as practicable and will be subject to review at six monthly intervals: s 78 of the Act. If Mr Eleter is released in the future, it may be with conditions, and if any of those conditions are breached or his mental condition deteriorates to a point where he may become a serious danger to others, the Tribunal may order that he be apprehended and further detained: s 109 of the Act.

Orders

71. On 7 August 2023, I made the following orders and directions:-

1. A special verdict be entered pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, that the act is proven but the defendant is not criminally responsible due to mental health impairment.

2. Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, I order that Mahmoud Eleter 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.

3. Pursuant to s 34 of Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the Court refers Mahmoud Eleter to the Mental Health Review Tribunal.

4. I direct the Registrar to notify the Minister for Health, as soon as practicable, of the making of these orders.

5. I direct the Registrar to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to the Tribunal the following documentation:-

1. A copy of the Court’s reasons for verdict and for the making of these orders;

2. The transcript of these proceedings;

3. Copies of the exhibits from the proceedings including the reports of Dr Eagle and Dr Ellis; and

4. A copy of the victim impact statement of Jocelyne Gacuma.

6. I direct that the Registrar notify the Justice Health and Forensic Health Network (Justice Health), as soon as practicable, of the verdict and orders in this matter and to provide Justice Health copies of the following documents:-

1. A copy of the reasons of the court for verdict and the making of these orders; and

2. Copies of the reports of Dr Eagle and Dr Ellis.

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Decision last updated: 10 August 2023