R v Eliby - [2016] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ELIBY
[2016] SASC 16
Judgment of The Honourable Justice Bampton
16 February 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was charged with the murder of his wife – he pleaded not guilty on the grounds of mental incompetence – investigation into the defendant’s mental competence dealt with by way of a Judge sitting alone – Court determined to proceed first with the question of the defendant’s mental competence to commit the offence in accordance with s 269FA of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) – Court accepted psychiatric evidence and was satisfied on the balance of probabilities that the defendant did not know his conduct was wrong pursuant to s 269C(b) of the CLCA – prosecution conceded the defendant was not mentally competent at the time of the conduct alleged to give rise to the offence – prosecution and defence agreed the Court could pursuant to s 269FA(5) of the CLCA dispense with further inquiry into the defendant’s mental competence – finding recorded that defendant mentally incompetent to commit the offence of murder – defendant admitted pursuant to s 34 of the Evidence Act 1929 (SA) that he unlawfully caused the death of his wife – finding recorded pursuant to s 269FB(2) that the objective elements of the offence of murder established beyond reasonable doubt – defendant found not guilty of the offence of murder and declared liable to supervision under Part 8A of the CLCA – supervision order committing the defendant to detention made pursuant to s 269O(1)(b)(i) – limiting term of life fixed pursuant to s 269O(2).
HELD:
1. On the balance of probabilities the defendant was suffering a mental illness at the time of the conduct alleged to give rise to the offence.
2. Finding recorded pursuant to s 269FB(5)(b) that the defendant was mentally incompetent to commit the offence of murder.
3. Finding recorded pursuant to s 269FB(2) that the objective elements of the offence established beyond reasonable doubt.
4. Pursuant to s 269FB(3) defendant found not guilty of the offence of murder and declared liable to supervision under Part 8A of the CLCA.
5. Supervision order made committing the defendant to detention pursuant to s 269O(1)(b)(i).
6. Limiting term of life fixed pursuant to s 269O(2).
Criminal Law Consolidation Act 1935 (SA) Part 8A, s 269A, 269B, 269C, 269D, 269E, 269FA, s 269FB, s 269O 269WA; Evidence Act 1929 (SA) s 34, referred to.

R v ELIBY
[2016] SASC 16
Criminal

BAMPTON J: On 28 January 2016, I made an order committing Serik Eliby to detention under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and set a limiting term of life.
These are my reasons for making those orders upon finding Mr Eliby was mentally incompetent to commit the offence of murder and declaring he was liable to supervision.
The charge and the defence raised
Mr Eliby was arraigned in this Court on a charge that on 16 February 2015, at Klemzig, he murdered his wife, Ainur Ismagul.
Mr Eliby pleaded not guilty raising the defence of mental incompetence to commit the offence.
A person’s mental competence to commit an offence is presumed unless the person is found, on an investigation under Division 2 of Part 8A of the CLCA, to have been mentally incompetent to commit the offence.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 269D.
Mr Eliby elected to have the investigation into his mental competence dealt with by a Judge sitting alone pursuant to s 269B(1) of the CLCA.
Psychiatric reports
Mr Eliby’s solicitor obtained an opinion regarding his fitness to stand trial as well as his mental competence to commit the offence from the psychiatrist, Dr Paul Furst dated 13 August 2015. Dr Furst also provided an addendum report dated 24 January 2016 in response to questions put to him by the Director of Public Prosecutions.
In addition the Court, pursuant to s 269WA of the CLCA, ordered that Mr Eliby undergo examination by a psychiatrist nominated by the Director of Forensic Mental Health. The psychiatrist Dr Jules Begg performed that examination and provided a report dated 9 November 2015 and an addendum report dated 12 January 2016 responding to matters raised by the Director of Public Prosecutions.
Dr Begg also gave oral evidence clarifying matters contained in his reports in a preliminary hearing prior to the commencement of the trial investigating Mr Eliby’s mental competence to commit the offence.
Both Dr Furst and Dr Begg considered Mr Eliby was fit to stand trial.
Trial of Mr Eliby’s mental competence
On 27 and 28 January 2016, I conducted an investigation into Mr Eliby’s mental competence to commit the offence pursuant to s 269B(1)(a) of the CLCA.
I had a discretion to proceed first with the trial of the objective elements of the offence or with the trial of Mr Eliby’s mental competence.
In the circumstances of this case, I determined it was appropriate to proceed first to determine the question of Mr Eliby’s mental competence to commit the offence in accordance with the provisions of s 269FA of the CLCA.
Definition of mental impairment and mental incompetence
Mental impairment is defined by s 269A(1) of the CLCA as:
(a)A mental illness; or
(b)an intellectual disability; or
(c)a disability or impairment of the mind resulting from senility but does not include intoxication.
Section 269C of the CLCA provides:
A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.
A person must be found to be mentally incompetent if the person is suffering from a mental impairment at the time of the alleged conduct and as a consequence does not know one of the matters referred to in s 269C(a) or (b) or is unable to control the conduct.
Summary of facts
Mr Eliby and Ainur Ismagul had been married for about 28 years as at February 2015. They were both research scientists engaged by the University of Adelaide. In December 2014, Mr Eliby’s contract with the University ended.
Around 7.00pm on 16 February 2015 Irina Ametov telephoned Ms Ismagul. Mrs Ametov reported that during the conversation Ms Ismagul was stressed, crying and told her that her husband (Mr Eliby) was officially insane and that she (Ms Ismagul) was an alcoholic. Ms Ismagul told Mrs Ametov that her husband had told her that he would kill her then himself. She also described to Mrs Ametov how she had arrived home the week before to find her husband had attempted suicide. The call ended with Mrs Ametov telling Ms Ismagul that she would call back when she could speak to her without Mr Eliby being present. Ms Ismagul called again that evening and Mr Eliby answered the phone telling her his wife was in the toilet. She left a message asking Ms Ismagul to call her back. After half an hour, as Ms Ismagul had not called back, Mrs Ametov called again. Mr Eliby again answered the phone telling her his wife was still in the toilet with a really bad stomach.
Following this, Mrs Ametov asked her husband, Igor Ametov, to go to Mr Eliby’s home to check on him and Ms Ismagul. Mr Ametov drove to the home and called Mr Eliby on his mobile but there was no answer. As he was concerned about Mr Eliby’s wellbeing, he left the Eliby home and went to the Holden Hill police station sometime after 10.00pm to ask for advice and help.
Mr Ametov told the police officer at the station counter that he had a friend who had recently lost his job and had become very depressed. The police officer offered to send a patrol to the home but Mr Ametov was reluctant to ask police to attend and wanted to discuss the matter with his wife. Mr Ametov went home and again tried to telephone Mr Eliby. As there was still no response, he telephoned the police and asked that they attend Mr Eliby’s home. Just before 11.00pm police attended at the home. Mr Eliby answered the door and when asked if everything was all right Mr Eliby said “No, I’ve smashed her head, I think I’ve smashed her head in”.
Mr Eliby directed the police to the upstairs master bedroom. Ms Ismagul was found on the floor of the ensuite bathroom of the master bedroom. She had extensive blunt force head and facial injuries making her unrecognisable. There was a large amount of blood on the floor around her head with traces of body tissue in it. At the centre of the ensuite floor next to her head was a 15kg dumbbell with interchangeable weights. The dumbbell also had blood and body tissue on it. Ambulance officers arrived shortly after and confirmed that the head trauma sustained by Ms Ismagul was not compatible with life. Ms Ismagul died at the scene.
The Consultant Forensic Pathologist, Neil Langlois, in his report dated 18 April 2015, attributes the cause of death to blunt head injuries. Dr Langlois comments that the injuries he noted at autopsy would require multiple blows of extreme force.
Mr Eliby was formally interviewed by the police on 17 February 2015. He admitted that he smashed his wife’s head. He told police that his wife was very upset that night, that she had been crying, and he felt that it was his fault. He said that she had said she did not want to live and she had tried to jump from the balcony. Mr Eliby said he managed to stop her and that she fell on the bathroom floor crying. Mr Eliby said that he decided to kill his wife when he saw her lying on the bathroom floor crying. He hit his wife about 10 times with a dumbbell. He reported that she lost consciousness straight away and did not fight back. Mr Eliby told police that he wanted to set his wife “free from the earthly problems”. Mr Eliby also told police that he was not himself, things had been accumulating for a while since he lost his job and he “felt responsible”.
The history given to Dr Furst and Dr Begg by Mr Eliby
Mr Eliby told Dr Furst and Dr Begg that he was a scientist who specialised in genetic engineering of cereal crops and had been employed at the Australian Centre for Plant Function Genomics at the Waite Campus of the University of Adelaide. In August 2014, Mr Eliby and several colleagues were informed that they would not have their contracts renewed. Mr Eliby reported that as a result he felt very stressed and did not understand what had happened. Mr Eliby said that the level of stress continued to build but that he could manage it. He wrote to several other laboratories seeking work without success.
In October 2014, he travelled to Kazakhstan for work with colleagues. Mr Eliby reported that he began to feel anxious and afraid of one of his colleagues and in hindsight he recognised that it was irrational and something abnormal for him. He started to have suicidal thoughts and this continued when he returned to Adelaide. He reported that he just sat in his office and avoided talking to people. His sleep was poor and he lay awake thinking about his future. When he woke, he did not feel rested and wanted to lie down again. He stopped socialising, playing tennis, and had no enjoyment in activities he had previously found enjoyable, even taking a shower. His appetite was poor and he only ate because he felt he had to.
He described that his depression continued through January 2015 and he attempted to commit suicide on 29 January 2015. His wife found him with lacerations to his wrists and a lot of blood. He was taken to the Royal Adelaide Hospital by ambulance and discharged after two days. Following his discharge he presented to his general practitioner for prescription of antidepressant medication.
After the suicide attempt, Mr Eliby became convinced he was under police surveillance but was not sure why. He also believed he could smell bad things around him all the time, he was hopeless about his future, and thought that he had destroyed his life and that of his family. He felt very guilty about what had happened and stressed about the impending financial strain following the loss of his job. His wife had a contract until May 2015 but he began to fear that she would also lose her job.
In the days preceding the alleged offence, he said he felt increasingly hopeless and his wife had to push him even to wash. His wife went to their general practitioner to talk about his health problems and tried to get him to the park to get fresh air but he would not go because he was afraid to go out. His wife had organised for him to meet with a psychologist. He said he met with the psychologist but could not recall what they had talked about.
His wife had found him a job in Kazakhstan and, on the morning of the alleged offence, she wanted their passports to post to the Kazakhstani Embassy to make travel arrangements. Mr Eliby reported that he did not want to go, he just wanted to sit in the house and do nothing, so he hid the passports. His wife became angry with him and he became afraid of her. His wife shouted at him so he gave her the passports and she left the house to post them.
His wife returned home and they had dinner at 5.00pm. He reported that his wife was very upset and drank a bottle of wine and he just sat there. He indicated that it was unusual for his wife to drink so much alcohol. He said he tried to stop her drinking more but she beat him and was very drunk. She went to the second floor of their home and he reported that she attempted to jump off the balcony. He said he pulled her back and she then lay on the bathroom floor crying “I don’t want to live anymore, please kill me”. Mr Eliby reported that he felt his wife was speaking directly to him and asking him to kill her.
Mr Eliby said he then went into the bedroom and took a dumbbell from the wardrobe and hit her. He said that, as he did it, he was saying to himself “please die quickly”. He said it happened very quickly and that he would have killed her very quickly as he struck her in the temple.
Mr Eliby said that his actions felt mechanical and he did not feel any emotion. He reported that he went downstairs to get knives as he thought he would lacerate his veins and kill himself, but he was concerned that his wife was not dead, that she would be revived and that, if she lived, she would be terribly brain-damaged.
Dr Furst’s summary of the medical records
Dr Furst notes in his first report that Mr Eliby’s medical records record that he was brought to the Royal Adelaide Hospital Emergency Department on 29 January 2015 following an apparent suicide attempt, and that he was seen by a psychiatrist the following day. The psychiatrist’s notes indicate that Mr Eliby and his wife gave a history of his depressed mood in the preceding weeks with anxiety about his job, associated with a loss of pleasure, motivation and interest in normal activities, poor sleep with early morning wakening, lethargy and loss of appetite with weight loss. His concentration was impaired and his wife had reported some change in him. The attending psychiatrist noted there was no anger or aggression or thoughts of harm to others. The psychiatrist diagnosed a major depressive episode or adjustment disorder with depressed mood occurring in the context of work and financial stress on a background of perfectionist personality tendencies.
Mr Eliby’s wife took two weeks’ leave to care for Mr Eliby. On 2 February 2015, the mental health team contacted Mr Eliby by phone. Mr Eliby reported that he did not have any plans to end his life but had thought twice that day about ending his life. He reported he had been taking medication. His conversation was noted to be vague, monotonous, slow, and quiet.
On 3 February 2015, he was assessed at home by members of the mental health team who noted he had slow, soft speech and low mood.
Mr Eliby was again contacted by the mental health team on 15 February 2015 by phone. The notes of that conversation indicate that he seemed a little better and he reported that he felt better. He also reported that he had obtained employment in Kazakhstan, that he had an appointment with a psychologist on 17 February 2015 and that the medication had helped him. He said his energy had improved, his sleep was almost back to normal, and he enjoyed walking, reading, and watching television.
On 17 February 2015, Mr Eliby’s case was reviewed by members of the mental health team and a senior psychiatrist. It was planned to liaise with his psychologist and general practitioner and ensure that his wife was aware of the mental health contact numbers and referral pathways, with a plan to transfer care to the psychologist and general practitioner once stability and follow-up had been established in two to three weeks’ time.
Dr Furst notes that, following his arrest, Mr Eliby was reviewed at the Adelaide Remand Centre by a senior psychiatry registrar who enacted a Level I Inpatient Treatment Order and arranged for admission to the Glenside campus. Mr Eliby was admitted to Glenside from 18 February 2015 until his transfer to James Nash House on 23 February 2015.
On admission to Glenside, Mr Eliby presented as psychomotor retarded with poor eye contact. He voiced nihilistic delusions and ideas of worthlessness and hopelessness. He expressed regret for killing his wife as she had helped him all of his life. It was noted that he did not seem to be able to think logically and his judgement was impaired. He was interviewed on multiple occasions and he continued to demonstrate depressive symptoms with psychotic features. He reported ongoing thoughts of wanting to harm himself.
Witness statements
In his statement, Igor Ametov describes Mr Eliby’s depressed mental state over the preceding months and how he had developed a delusional belief that his children were starving.
In her statement, Mr Eliby’s daughter describes her father’s weight loss and his odd behaviour on an occasion when he drove her to the airport.
Mr Eliby’s son’s statement details that his father had had some job offers in December 2014 but that he was too depressed by that time to consider them. The son describes that his mother had told him that his father thought there was no point in looking for work as World War III was about to begin and the conflict in the Ukraine was the beginning of this. The son also states that his father had transferred $10,000 into his sister’s bank account because he believed that his children were starving to death. When the son moved the money to a high interest account, his father believed it had been stolen. The son said that he removed his father from having access to the account as he kept checking it and believing that they were starving when in fact they had enough money. The son said that his mother had told him that she thought his father was going to kill her. The son also stated that his father “tried to act as normal as he could” and when he spoke to his mother “she would tell me all the crazy things he was saying to her”.
Dr Furst’s opinion
Dr Furst is of the opinion that Mr Eliby was suffering a Major Depressive Episode with psychotic features as part of an underlying Bipolar Disorder at the time the alleged offence occurred. Dr Furst considers that Mr Eliby knew the nature and quality of his actions in killing his wife and he was able to control his behaviour. However, Dr Furst considers that, as a result of his nihilistic delusions, Mr Eliby believed that not only was his life over but it was the end of the world for his family and he did not have the capacity to understand that his nihilism was not shared by his wife or others. Accordingly, Dr Furst believes that Mr Eliby was not able to reason about the wrongfulness of his actions with a moderate degree of sense and therefore suffered a mental impairment.

Dr Furst considers that Mr Eliby’s comment during the police interview that he had destroyed everything was consistent with the nihilistic delusions that he had reported to him. Further, Dr Furst considers that Mr Eliby’s comments to police that his wife wanted to have him treated and that he had problems since he lost his job, together with his belief that his children were starving, demonstrates that his insight was poor and that he had little appreciation of the severity of his depression and the effect on his family. Dr Furst considers that Mr Eliby’s apparent composure when interviewed by police was due to a degree of psychomotor retardation and increased response latency as a result of his severe depression and that he most likely was not mentally fit for police interview at that time as he lacked insight and judgement.
Dr Furst was asked his opinion regarding Mr Eliby’s conduct in washing his hands and changing his singlet after his wife’s death. Dr Furst said whilst this could be viewed as attempts to hide his offence and therefore indicate knowledge of wrongfulness, it is more likely that the actions simply reflect automatic actions to remove blood from his person.
Dr Furst considers that Mr Eliby telling Irena Ametov that his wife was in the toilet on each of the two occasions she rang is consistent with the actions of a man trying to stall for time because he could not explain why his wife was not able to come to the phone.
In his addendum report, Dr Furst explains that he believes that Mr Eliby knew the nature and quality of his actions in that he knew he was hitting his wife with the dumbbell and that this would kill her and he was able to control his behaviour to some degree. However, he believed that he had killed his wife in response to nihilistic delusions and that in killing her he was setting her free. He lacked the insight to understand that his beliefs were delusional and that he was so depressed that he could not accept that he may have had work overseas, that his children were not starving and that he was not being watched. His complete inability to see the reality of his situation indicated to Dr Furst that his reasoning was impaired generally and, more specifically, his reasoning about the wrongfulness of his conduct was impaired.
Dr Furst is of the opinion that Mr Eliby was unable to reason about the wrongfulness of his conduct with a moderate degree of sense.
Dr Begg’s opinion
Dr Begg considers the death of Mr Eliby’s wife was likely triggered by her reported intense distress. Dr Begg comments that it would have been very distressing living with Mr Eliby. His wife would have been aware of his distress including his poor decision-making regarding his future employment. Dr Begg is of the opinion that when Mr Eliby’s wife fell to the floor in a distressed state asking to be killed, she was in Mr Eliby’s mind in effect telling him to do what he had believed for some time was a necessary thing to do; that is to kill her and himself so that the fantasy of a better life in the future could be fulfilled. Dr Begg states that at that point Mr Eliby was not able to differentiate between his own feelings and impulses and his wife’s. As such, his ability to reason with a moderate degree of sense and composure was affected by the delusion that life was not worth living for either of them. Dr Begg says that this is a consequence of the psychotic depression Mr Eliby was suffering.
Dr Begg is of the opinion that, at the time of the offence, Mr Eliby was suffering from severe mental illness namely psychotic depression as a result of Bipolar II Disorder. Dr Begg considers that Mr Eliby understood the nature and quality of the conduct and was able to control it. However, Dr Begg believes Mr Eliby was not able to reason with a moderate degree of sense and composure about the nature and quality of the conduct.
In his addendum report, Dr Begg states that he does not consider that Mr Eliby cleaning himself after killing his wife changes his knowledge of the wrongfulness of the action. Dr Begg considers Mr Eliby knew, in the sense that he understood his actions would lead to her death, that by striking her she would die. He would have known afterwards that his hands were bloodied and his singlet was also stained.
Dr Begg considers that Mr Eliby’s conversation with Irena Ametov about his wife being in the toilet suggested he was covering up his conduct but it may also suggest he was not in a position to process what to do about the situation. By putting off the caller he was putting off facing how he was going to manage the reality of his wife’s death.
Dr Begg states Mr Eliby’s delay in answering police questions was likely due to his depression which slowed down his mental functioning.
Dr Begg considers Mr Eliby had the capacity to physically control his conduct, but could not reason about the nature and quality of his conduct with sense and composure and he therefore did not understand the wrongfulness of his conduct at the time of the offence
In his oral evidence, Dr Begg confirmed his opinion that Mr Eliby did not have an ability at the time of the offence to reason about the wrongfulness with a moderate degree of sense and composure.
In summary, Dr Furst and Dr Begg are of the opinion that Mr Eliby did not know that his conduct was wrong, in the sense that by virtue of his severe mental illness at the time of his conduct, he could not reason about its wrongfulness “with a moderate degree of sense and composure”.
I accept the evidence of both Dr Furst and Dr Begg and am satisfied on the balance of probabilities that Mr Eliby did not know his conduct was wrong at the time he killed Ainur Ismagul.
Mr Eliby was mentally incompetent to commit the offence because at the time of the conduct alleged to give rise to the offence he was suffering a mental impairment and in consequence of that impairment did not know that the conduct was wrong in accordance with s 269C(b) of the CLCA.
Finding of mental incompetence
The prosecution and defence agreed that I could, pursuant to s 269FA(5) of the CLCA, dispense with any further investigation into Mr Eliby’s mental competence to commit the offence
It was my opinion, having read the statements filed in this matter and having accepted the evidence of Dr Furst and Dr Begg, that it was appropriate to dispense with any further investigation into Mr Eliby’s mental competence to commit the offence and record a finding that he was mentally incompetent to commit the offence of murder.
Accordingly, I recorded a finding that Mr Eliby was mentally incompetent to commit the offence.
Trial of the objective elements of the offence of murder
Having made that finding, I embarked upon an inquiry into the objective elements of the offence of murder.
When interviewed by police on 16 and 17 February 2015 Mr Eliby admitted killing his wife.
For the purpose of these proceedings Mr Eliby admitted, pursuant to s 34 of the Evidence Act 1929 (SA) in submissions made by his counsel, that on 16 February 2015 he caused the death of Ainur Ismagul by striking her multiple times with a dumbbell.
The admissions are consistent with the witness statements and the Record of Interview. In my opinion, the admissions and witness statements established the objective elements of the offence beyond reasonable doubt.
I therefore recorded, pursuant s 269FB(2) of the CLCA, a finding that the objective elements of the offence had been established beyond reasonable doubt.
As mandated by s 269FB(3), having found the objective elements established and that Mr Eliby was mentally incompetent to commit the offence, I found him not guilty of the offence of murder and declared him to be liable to supervision under Part 8A of the CLCA.
Supervision for life
Having declared Mr Eliby to be liable to supervision, I made an order committing him to detention pursuant to s 269O(1)(b)(i).
In accordance with s 269O(2) of the CLCA, I fixed a term equivalent to the period of life imprisonment being the term of imprisonment that would have been imposed if Mr Eliby had been convicted of the offence of murder.
Mr Eliby is liable to supervision for the period of his life.