R v Elmas
[2016] VSC 405
•21 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0088
Between:
| THE QUEEN | |
| and | |
| EROL ELMAS | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 4 November & 21 December 2015 & 21 March 2016 | |
DATE OF JUDGMENT: | 21 March 2016 | |
CASE MAY BE CITED AS: | R v Elmas | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 405 | Third revision: 28 July 2016 |
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CRIMINAL LAW – Murder and attempted murder – Consent mental impairment hearing – Accused, in grips of psychotic episode caused by schizophrenia, stabbed three men, killing one and injuring two others, and attempted to stab a fourth man – Verdicts of not guilty by reason of mental impairment directed – Custodial supervision order imposed – Accused committed to Victorian Institute of Forensic Mental Health (Thomas Embling Hospital) for nominal period of 25 years – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 24, 26, 27, 28, 41 & 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC | Office of Public Prosecutions |
| For the Accused | Ms K Argiropoulos | Theo Magazis & Associates |
HIS HONOUR:
Overview
(a) A psychotic man kills one man and tries to kill another three
On the morning of Thursday 5 December 2013, Erol Elmas attended the Broadmeadows Turkish and Islamic Cultural Centre (“the Islamic Centre”) in Dallas, a suburb of Melbourne. He was armed with a knife.
While there, he stabbed three men and tried to stab another, with the intention of killing them. One of the men – Omer Ali Aysel – died from his wounds. The other three – Serafettin Can, Bekir Demir and Necati Turgut – survived.
Shortly thereafter, Mr Elmas was arrested at the scene and later was charged with one count of murder and three counts of attempted murder. Ultimately, he was committed for trial and indicted in this Court on those charges.
(b) Consent mental impairment hearing
On 4 November 2015, the matter came before me on what is commonly referred to as a consent mental impairment hearing.[1] Both Mr Tinney, who appeared on behalf of the Director of Public Prosecutions, and Ms Argiropoulos, who appeared on behalf of Mr Elmas, submitted that the proposed evidence established that Mr Elmas had available to him a defence of mental impairment and that, upon hearing that evidence, I should direct a verdict of not guilty by reason of mental impairment. This was because the evidence would show that, at the time of the killing and the attempts to kill, as a result of the effects of his schizophrenia, Mr Elmas did not know the conduct he engaged in was wrong – that is, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.[2]
[1] Usually, in this State, unless there is a plea of guilty, whether a person is guilty or not guilty of murder is determined by a jury. However, pursuant to s 21(4)(a) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), if a person is charged with an indictable offence (such as murder) and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear that evidence and, if satisfied that it does establish the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded.
[2] See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
I heard the evidence, accepted it and the parties’ submissions, and found Mr Elmas not guilty of murder and the three charges of attempted murder by reason of mental impairment. I also declared him liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”); adjourned the matter to 21 December 2015; and directed that, pending the making of a supervision order, he be remanded in custody in a prison,[3] and that the necessary further report and a certificate of available services be prepared.[4]
(c) Final orders
[3] See ss 24(1)(c) and 24(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[4] See ss 24, 26, 41 & 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
By 21 December, I had received a report from Dr Jessica Green, a psychiatry registrar with the Victorian Institute of Forensic Mental Health (“VIFMH”), also known as Forensicare.[5] Dr Green recommended that Mr Elmas be admitted to Thomas Embling Hospital (when a bed became available) under a custodial supervision order for a prolonged period of multidisciplinary psychosocial rehabilitation.
[5] See s 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
However, the matter was not finalised in December because a certificate of available services could not be provided as there was, at that time, no bed available at Thomas Embling Hospital.
Ultimately, the matter came back before me on 21 March 2016, by which time I had received a signed certificate of available services, declaring that a bed had become available for Mr Elmas at Thomas Embling Hospital.
Consistently with the submissions of the parties, I made a custodial supervision order committing Mr Elmas to the custody of the VIFMH (Thomas Embling Hospital) with a nominal term of 25 years from 5 December 2013, the date of his arrest.[6]
(d) Reasons for decisions and orders
[6] See ss 26, 27 & 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
On both 4 November 2015 and 21 March 2016, I gave fairly extensive ex tempore reasons for my decisions and orders. What follows are my revised and more detailed reasons.
Consent mental impairment hearing
(a) Summary of evidence
(i) Introduction
I turn now to a detailed summary of the evidence on the consent mental impairment hearing. This summary is taken largely from the prosecution opening read to the Court, tendered in evidence by Mr Tinney and accepted as accurate by Ms Argiropoulos. As will be seen, the summary also contains information taken from the reports of three psychiatrists, a hospital discharge summary and the viva voce evidence of psychiatrist Dr Kevin Ong.
(ii) Messrs Aysel, Can, Demir and Turgut
Omer Ali Aysel was born on 1 May 1945. He was aged 68 at the time of his death. He was born in Turkey and migrated to Australia in 1971 with his wife Ayse, with whom he had four children, a son Ahmet, and daughters Aysun, Cigdem and Ceylan.
In 2013, Mr Aysel was living in Glenroy with his wife and his son Ahmet’s children, to whom he was a father figure. He had ten grandchildren in all. He was devoted to Islam and the local Turkish community and spent much of his spare time at the Islamic Centre.
Serafettin Can, Bekir Demir and Necati Turgut were also regular attendees at the Islamic Centre.
(iii) Erol Elmas
Erol Elmas was born in Australia on 8 December 1990. He was 22 at the time of these events. He has an older sister, Melek Elmas. Both children were brought up by their father, Yilmaz Elmas, from a young age, as their mother was afflicted by a serious psychiatric illness.
As a teenager, Mr Elmas used drugs, including methamphetamine (‘ice’) and cannabis, and he exhibited some behavioural problems. He was frequently found by his father to be in possession of knives. He spent a month at the Parkville Juvenile Justice Centre in 2007 in relation to substance use and assaults.
In June 2008, he was detained pursuant to the Mental Health Act[7] after being found in an impulsive, drug-affected and suicidal state.
[7] See Mental Health Act 1986 (Vic) which was repealed on 1 July 2014 and replaced by the Mental Health Act 2014 (Vic).
In late-2008, as a result of the deterioration of his relationship with his father, Mr Elmas left the family home and went to live with his mother in Jacana Avenue, Broadmeadows.
Between 2009 and 2012, Mr Elmas served a sentence in prison for offences involving the stabbing of a man and a woman.
After his release from prison, Mr Elmas resided alone in private accommodation in Carlton. Some months later, he moved in with his sister Melek at her home.
He again spent a month in custody from March 2013 while awaiting trial on a charge of assault. He was ultimately convicted and received a suspended sentence in respect of that charge.
In September 2013, he returned to living with his mother and remained close to his sister Melek.
Mr Elmas had no formal psychiatric diagnosis or input from mental health services prior to December 2013, when the stabbings the subject of the present proceedings occurred.
(iv) The lead-up to the stabbings
On Friday 29 November 2013, Mr Elmas went to the Earthcore Music Festival in Pyalong, where he remained for the weekend.
At about 2:30 a.m. on Sunday 1 December 2013, Mr Elmas was seen near the festival exit gate by his friend, Esad Yorus. Mr Yorus found him to be irrational and hallucinating. Mr Elmas told Mr Yorus that he had taken LSD and was “tripping out”. Mr Elmas repeatedly asked Mr Yorus not to leave him. Mr Yorus arranged for a mutual friend, Yasin Aydar, to come and look after Mr Elmas. As they waited for Mr Aydar, Mr Elmas told Mr Yorus that the stars brought him there and they led him to the woods. He said that, along the way, he met some Masonic Jews and they were taking him up there to sacrifice him. The security guards at the event, he said, were “in on it” and were also Jews, and they were going to call the police on him. Mr Elmas then phoned his sister, Melek, and said, “I see shadow people that want to sacrifice me. I think it’s the acid.”
On Monday 2 December 2013, Melek took her brother to the Meadow Heights medical practice seeking treatment for his hallucinations. Dr Husam Al‑Harafi observed that Mr Elmas appeared restless; reported that he had taken drugs in the preceding days, specifically ice; displayed agitation and delusions, both visual and auditory; and appeared to have a psychological problem, mania or was suffering from the side effects of taking drugs. While Dr Al‑Harafi discussed counselling with Mr Elmas and his sister, he provided an urgent referral to the Northern Hospital Emergency Department. The doctor’s notes recorded a concern that Mr Elmas might be suicidal and a risk to others.
Mr Elmas went with his sister to the Northern Hospital with the letter of referral. He was seen by a Dr Katharina Brand, who conducted a mental health assessment. Dr Brand concluded that Mr Elmas’s visual and auditory hallucinations were attributable to his current drug use and that, having responded appropriately to her questions, he did not require any medication. She instead provided a referral to a drug and alcohol service.
Mr Elmas’s friend, Ensar Aydin, phoned him while he was at the hospital. Mr Elmas told Mr Aydin that he was “tripping out” about people and how the devil was going to get him.
The following day, Tuesday 3 December 2013, a Northern Hospital social worker, Sneza Filiposki, telephoned Mr Elmas to follow up his drug referral. Mr Elmas did not wish to speak to her and declined any further assistance.
On Wednesday 4 December 2013, Mr Elmas’s mother contacted her daughter, Melek, who in turn rang triple-0 for police assistance in dealing with Mr Elmas. She reported that Mr Elmas was “saying his goodbyes” and had a knife. Mr Aydin arrived at the house and heard Mr Elmas repeating a verse of the Koran, the meaning of which is “I am not possessed”. Melek then arrived and heard her brother say that he was seeing “shadow people” and “masked people”.
Police attended the house and conducted a mental health assessment of Mr Elmas under the Mental Health Act. It was thought that he did not meet the criteria for commitment in that assessment and, accordingly, it was not deemed necessary to take him into custody.
At the request of Mr Elmas, Melek drove him to the Islamic Centre in Dallas. There, he met with Imam Erkan Acicek, the spiritual leader of the mosque, for about 30 to 45 minutes. Mr Elmas told the imam that he had used drugs; that he heard the voices of “Jinn” (the spirits of the other world); that the spirits were trying to make him do bad things; and that the Jews and Masons were following him and trying to kill him. The imam counselled Mr Elmas but told him that he needed the assistance of medical doctors.
Mr Elmas agreed to seek medical advice. However, upon leaving the mosque, he told his sister that he did not need help and that he did not have a drug problem. He refused medical attention and instead returned home to his mother’s house.
At about 9:30 a.m. on Thursday 5 December 2013, Mr Elmas telephoned his sister. She agreed to drive him to the Islamic Centre so he could pray at the mosque, but on the condition that he would later allow her to take him to drug rehabilitation. Shortly afterwards, she picked up her brother and drove him to the Islamic Centre.
The Islamic Centre includes a youth centre, a canteen, a library, prayer rooms and a mosque. There is a CCTV camera on the minaret on the north-eastern side of the mosque.
A number of people were present at the Islamic Centre on the morning of 5 December, including women attending Koran study classes, and Messrs Aysel, Can, Demir and Turgut.
On arrival, Mr Elmas spoke to Ramzan Oztas, the president of the Islamic Centre, who invited him to use the facilities. Mr Elmas removed his shoes, as is the custom, and entered the mosque before exiting a short time later. He stood outside smoking before re‑entering the mosque. He again exited the mosque after a short time.
(v) The stabbings
Mr Elmas then approached Serafettin Can and confronted him seven to eight metres from the entrance to the mosque. Mr Elmas was holding a knife in his right hand and screaming. He stabbed Mr Can multiple times to his head, neck, chest and hand.
Having heard a disturbance, Mr Demir and Mr Aysel approached Mr Elmas and Mr Can in order to intervene. Upon seeing the two men heading towards him, Mr Elmas left Mr Can on the ground and ran at Mr Demir and Mr Aysel. They then turned and tried to run but were chased by Mr Elmas.
Mr Elmas caught Mr Aysel near the minaret and stabbed him to the waist. He then chased Mr Demir, slashing at him with the knife and cutting his jacket but not his body.
Mr Elmas stopped chasing Mr Demir and then returned to the injured Mr Aysel, who, in seeking to flee, had reached the office entry of the mosque. With the knife still in his right hand and the blade pointing downwards, Mr Elmas repeatedly stabbed Mr Aysel in an up and down motion from head height, striking his face and chest as he lay on the ground.
Mr Elmas then entered the car park and confronted Mr Turgut and Mustafa Atmaca. Mr Elmas was covered in blood and screaming at Mr Turgut, “Are you Yahudi?”, which means “Are you Jewish?”, before asking the same question of Mr Atmaca and running off towards King Street.
The two men went through the car park and were seven to ten metres from the canteen when Mr Elmas reappeared and again confronted them. He said, “Are you Yahudi? I kill Yahudi.” Mr Turgut responded, “No Yahudi, me Muslim here.” With the knife in his right hand, Mr Elmas lashed out and struck Mr Turgut to the neck below his left ear.
Mr Elmas then ran in the direction of the mosque screaming, “Yahudi”, “the Jews are here” and “I kill the Yahudi, I kill the Yahudi.” Imam Acicek recognised Mr Elmas from their discussion the day before.
A number of those present at the Islamic Centre hid inside the buildings and called triple-0.
Having received a call from Mr Elmas during which he had said, “I kill the Jews,” Melek returned to the Islamic Centre to see him running in front of the mosque covered in blood and holding a knife. Mr Elmas dropped the knife at his sister’s request but picked it up when he saw police.
(vi) Arrest and investigation
Police had arrived at the scene minutes later. First Constables Porter, Kujovic and Richmond observed Mr Elmas to be in an agitated state, covered in blood, holding a knife, foaming at the mouth and pacing around the grounds of the mosque. He was ordered to release the knife and surrender himself to police but refused to do so. He repeatedly screamed, “The Jews have invaded the mosque, the Jews have invaded the mosque. Kill the Jews. We must kill all the Jews.”
Police used a taser to subdue Mr Elmas. He dropped the knife, but then was able to get to his feet and rearm himself, which in turn caused police to deploy the taser a second time, as well as capsicum spray. Additional police assisted in restraining Mr Elmas.
In the course of the arrest, Mr Elmas bit First Constable Richmond on the abdomen, he repeatedly punched Acting Sergeant Carter to the face and he struck First Constable Hodge to the cheek.
Following his arrest, Mr Elmas was taken to St Vincent’s Hospital. A urine sample returned positive results for sympathomimetic amines (amphetamine or methyl-amphetamine) as well as cannabinoids or THC (cannabis).
Crime scene investigators attended the Islamic Centre and found a folding style knife covered in blood. A number of blood trails were identified and swabbed for testing. Investigators also collected a number of bloodstained items of clothing from the scene and located two mobile phones belonging to Mr Elmas.
The CCTV footage showed a male matching the description of Mr Elmas arriving at the mosque and later attacking a number of the attendees.[8]
[8] In the course of the hearing of this matter, Mr Tinney advised that the CCTV footage was quite blurry and he did not consider that it would actually assist me to view it, so I did not do so.
Later on 5 December, a forensic medical officer deemed Mr Elmas to be unfit for interview. In those circumstances, no formal interview of Mr Elmas was ever carried out by the police.
After his arrest, Mr Elmas was initially held in the Acute Assessment Unit of the Melbourne Assessment Prison. On 17 December 2013, he was transferred to the Metropolitan Remand Centre but returned to the Melbourne Assessment Prison three days later because he was still displaying symptoms of hallucinations. He was admitted to the Thomas Embling Hospital on 2 March 2014 and remained there until 19 September 2014. He was then discharged and returned to the Acute Assessment Unit of the Melbourne Assessment Prison. He has remained there since that time.
(vii) Autopsy and other medical examinations
Mr Aysel was pronounced dead at the scene at 11:19 a.m. on 5 December 2013.
The following day, Dr Paul Bedford of the Victorian Institute of Forensic Medicine conducted a post‑mortem examination on Mr Aysel. He had sustained 17 stab wounds in total – to the head, neck, chest, abdomen and the left elbow. One of the wounds penetrated his liver and right kidney. The cause of death was found to be blood loss from multiple stab and incised wounds to the head, neck and abdomen. There was found to be underlying ischaemic heart disease which would have exacerbated the effects of blood loss due to the traumatic injuries.
Mr Can was taken by ambulance to the Royal Melbourne Hospital. He was treated for stab wounds to both sides of his neck, a penetrating stab wound to his left eye leading to the rupture of the globe and retinal detachment, a large laceration to the left cheek, facial fractures, traumatic intracranial injuries, cuts to his left hand and wrist, and a puncture wound to the right side of his upper chest.
Mr Turgut was taken by ambulance to the Northern Hospital. He was treated for a serious stab wound to the left side of his neck. Fortunately, there was no interference with vital structures, including the major blood vessels.
Mr Demir was not physically injured.
(vii) Psychiatric evidence
I turn now to the psychiatric evidence.
[a] Dr Sullivan – first and second reports
On 1 March 2014, while at the Melbourne Assessment Prison, Mr Elmas was examined by forensic psychiatrist Dr Danny Sullivan, who prepared a report dated 15 March 2014. While Dr Sullivan was of the view that Mr Elmas was clearly psychotic at the time of the stabbings, initially, he also said that the issue at hand is “whether Mr Elmas suffers from a psychotic illness or a drug‑induced psychotic disorder”. He indicated that Mr Elmas’s symptoms “onset acutely at the Earthcore festival in the context of polysubstance abuse, and there is no indication that they had been evidence[d] before that”. He concluded that Mr Elmas was suffering from “a drug‑induced psychotic disorder at the time of the alleged offences” and would not have available to him a defence of mental impairment.
On 25 March 2014, Dr Sullivan had a second consultation with Mr Elmas at the Thomas Embling Hospital. He provided an addendum report dated 17 June 2014, in which he sought to clarify whether Mr Elmas suffered from a pre-existing psychiatric illness. Having considered further material, including historical medical records and medical records from the period after the stabbings, Dr Sullivan remained of the opinion that the behaviour occurred “as a result of drug‑induced psychosis”. He concluded that the “temporal evolution of symptoms and their association with his substance use would in my opinion preclude a mental impairment defence”.
[b] Associate Professor Carroll – report
On 15 October 2014, Mr Elmas was examined at the Melbourne Assessment Prison by consultant psychiatrist, Associate Professor Andrew Carroll. Prior to his assessment, Professor Carroll was provided with various material including Dr Sullivan’s two reports. He also interviewed Melek Elmas by telephone on 22 October 2014. He provided a report dated 29 October 2014.
In that report, Professor Carroll concluded that it was well‑established that Mr Elmas now suffered from a paranoid schizophrenic illness. He also found that, at the time of the stabbings:
both [Mr] Elmas’s own account and witness statements suggest that he was floridly psychotic, in the grip[s] of [a] delusional system with a persecutory, supernatural content … He believed that the victims were friends of the devil and were going to kill him … These beliefs were reinforced by intrusive psychotic hallucinations, primarily auditory (hearing voices) but also somatic (feeling that he was being touched on his body) … At the relevant time, therefore, although he knew the nature and quality of his actions, he was not at all able to reason with any degree of sense and composure with respect [to] their wrongfulness.
Professor Carroll went on to say:
It certainly appears that his condition deteriorated after his ingestion of a number of illicit drugs at the music festival several days prior to the offences. However, based on his own account and that of his sister, in my opinion there is very good evidence that he [had] been actively and consistently psychotic for many months, possibly a year or so, prior to the festival. Irrespective of whether he was using ice throughout this period, the overall clinical picture is consistent with an emergent schizophrenic illness (possibly aggravated by illicit drug use), present for many months before the offences, rather than simply a series of substance induced psychotic episodes. In my opinion the most appropriate formulation is that he developed an enduring psychotic illness, namely paranoid schizophrenia, sometime around 2012-2013, in the context of a significant genetic loading (family history) and intermittent illicit drug use, both of which are potent risk factors for this outcome.
He found that, on balance, Mr Elmas was suffering from a mental impairment, namely paranoid schizophrenia, which:
was present at the time of the [stabbings], albeit complicated by substance misuse which had aggravated the underlying, untreated psychotic illness. This mental impairment rendered him incapable of reasoning with respect to the wrongfulness of his behaviours at the time of the alleged offences. … [T]herefore Mr Elmas does qualify for a defence of mental impairment.
The report also set out the ‘collateral information’ that Professor Carroll obtained from his phone interview with Melek Elmas. Ms Elmas reported that she had first noted the possibility of a major psychiatric problem with her brother in 2012 after he was released from a three-year prison sentence. At that time, Ms Elmas recalled that her brother began to make statements such as “something’s taking over me” and she felt he was “trying to deny that he had mental issues”. Ms Elmas reported that, following his release from a second period of incarceration in April 2013, her brother was in a more obviously disturbed state. She stated that “he wasn’t there”; he continued to deny he had mental health problems; began to talk about “Jinn” (the demon) taking over his body; and began to isolate himself from friends. She also recalled that, around June 2013, Mr Elmas “got really into this ‘Jinn’ thing and said it was within him”. Mr Elmas told his sister, “I see them, they communicate with me and tell me to do bad things.”
Melek Elmas also told Professor Carroll that, approximately one week before the stabbings occurred, her mother told her that Mr Elmas had used a handgun to shoot his own reflection in the bathroom mirror at home. Mr Elmas explained this behaviour at the time as “trying to kill the thing within me”. She also confirmed that both her mother and maternal aunt suffer from bipolar disorder and that she had heard that she has a paternal uncle in Turkey with a mental illness, though she did not know further details about this.
[c] Dr Ong – report
On 19 January 2015, Dr Kevin Ong, a consultant psychiatrist, examined Mr Elmas. He prepared a report dated 2 March 2015. He opined that Mr Elmas does have a defence of mental impairment under s 20 of the Act available to him. In his view, at the time of the stabbings, Mr Elmas was:
floridly psychotic and attacked his victims believing that they were going to kill him. He would not have been able to reason with any degree of sense and composure in regards to the wrongfulness of his actions. Mr Elmas’s history is suggestive of an enduring psychotic illness, namely paranoid schizophrenia, rather than simply drug induced psychosis; though I acknowledge his substance use would have exacerbated his psychotic symptoms.
[d] Dr Sullivan – third report
The Director subsequently provided a copy of Professor Carroll and Dr Ong’s reports to Dr Sullivan for his consideration.
In light of these reports, Dr Sullivan changed his view as to the availability of the defence of mental impairment. He prepared a third report dated 20 October 2015. He noted that the collateral information of Melek Elmas, detailed in the report of Professor Carroll, suggested that, “in the few years preceding the [stabbings], Mr Elmas exhibited a greater degree of mental illness than was previously reported”. He was persuaded, as a consequence of this new information, that Mr Elmas had symptoms preceding the stabbings which were not simply attributable to drug use alone. Rather, he was of the view that Mr Elmas would now meet the criteria for a diagnosis of schizophrenia. He noted that Mr Elmas “had more than six months of symptoms while under psychiatric observation in Thomas Embling Hospital and the Acute Assessment Unit of the Melbourne Assessment Prison and while demonstrably abstinent from substance use”. He said that, although the stabbings appear to have occurred during a florid psychotic episode precipitated by substance abuse at the Earthcore festival, he would agree with the reports of Professor Carroll and Dr Ong that, on balance, this occurred against a background of pre‑existing schizophrenia. Thus, Dr Sullivan was of the view that there was now evidence of an underlying “disease of the mind” which would give rise to a mental impairment defence. He regarded Mr Elmas as having been “unable to reason about the wrongfulness of his conduct, due to delusional beliefs arising from schizophrenia and exacerbated by acute intoxication with stimulants and/or hallucinogens”.
[e] Discharge summary at Thomas Embling Hospital
A Thomas Embling Hospital discharge summary dated 19 September 2014 by Dr Prashant Pandurangi, a psychiatric consultant, and Dr Elena Bhattacharya, a senior registrar, in relation to Mr Elmas’s admission between 2 March 2014 and 19 September 2014, was tendered by Ms Argiropoulos. The discharge summary was made available to Professor Carroll and Dr Ong before their respective reports were prepared. It recorded a final diagnosis for Mr Elmas of paranoid schizophrenia. That, of course, is the same diagnosis which Dr Ong, Professor Carroll and Dr Sullivan (in his third report) all reached.
The discharge summary also recorded that, when he was first assessed on arrival at the Thomas Embling Hospital and for several months afterwards, Mr Elmas was reluctant to engage in treatment, was adamant that he did not have a mental illness and that he should not be in hospital, and that he had been cursed by a demon, the “Jinn”. It was this “Jinn” that Mr Elmas claimed had led to his behaviour and was still causing him to hear voices and receive messages.
[f] Dr Ong – viva voce evidence
Finally, at the hearing on 4 November 2015, I heard viva voce evidence from Dr Ong.
He referred to the reports of Professor Carroll and Dr Sullivan. He was asked whether the (earlier) opinions of Dr Sullivan altered his view. His answer was no; and that, in effect, based on the material that he had seen and the interviews that he had conducted, he remained of the opinion expressed in his report.
In Dr Ong’s view, the history was suggestive of Mr Elmas suffering from a psychotic illness that had evolved over several years. Mr Elmas told him that he had started experiencing psychotic symptoms (namely, auditory hallucinations as well as tactile hallucinations) during an earlier time when he was in prison in 2009. Dr Ong noted that this would have been at a time when Mr Elmas had less opportunity for illicit substance use. Further, over the course of the years leading up to the stabbings in 2013, it would appear that Mr Elmas was plagued by symptoms of varying intensity, often exacerbated by his substance use.
Dr Ong accepted that the fact that Mr Elmas continued to show signs of psychotic illness after the time when it could be demonstrated that he was no longer using drugs (that is, after he was arrested and taken into custody on 5 December 2013) was strongly supportive of the contention that he had a psychiatric condition that was not solely drug-related. In his view, this was “significant evidence that there was an underlying illness even without the effects of intoxicating substances”.
He also said that, when he assessed Mr Elmas on 19 January 2015 at the Melbourne Assessment Prison, he had some degree of insight into his illness. Mr Elmas expressed both the belief that he had been unwell at the time of the offences and a willingness to take medications and participate in ongoing treatment. Significantly, said Dr Ong, Mr Elmas was no longer convinced that the voices he had been hearing were attributable to the devil or “Jinn”. He agreed with Ms Argiropoulos that the situation was quite different from the manner in which Mr Elmas’s insight (or lack of it) was initially described in the Thomas Embling Hospital discharge summary.
Mr Elmas told Dr Ong of his family’s history of mental illness and, in particular, that his mother suffered from bipolar disorder of such a severity that she required medication and frequent hospitalisation. He also reported that he had an uncle who had been diagnosed with schizophrenia. When asked if he agreed with the view expressed in Professor Carroll’s report that those circumstances indicate a significant genetic loading for severe mental illness in Mr Elmas, Dr Ong acknowledged that that is a relevant risk factor for developing such an illness.
Dr Ong’s report records that, in relation to his drug use while at the Earthcore festival, Mr Elmas told him that he had consumed “only a little speed”, one-and-a-half ecstasy pills, one joint of marijuana and that he may have taken some acid‑based MDMA (ecstasy). He asked Mr Elmas about what was reported to be larger amounts of substances that he had related to other clinicians. Mr Elmas told him that he had exaggerated his drug use as he “wanted to explain [him]self”. In particular, Mr Elmas reported that, when assessed by Dr Sullivan, he told him that he had consumed a large amount of substances as he “didn’t want Dr Sullivan to make [him] look crazy”. Dr Ong’s view was that this behaviour – of exaggerating substance consumption – was consistent with a person who, at that stage, refused to admit or accept that he had a mental illness. He opined that it showed a lack of insight, obviously some embarrassment and also shame about the possibility of a mental illness.
Dr Ong reviewed the collateral information in Professor Carroll’s report provided by Mr Elmas’s sister, Melek. He agreed that the behaviours described by Ms Elmas in that report suggest that her brother had an active underlying disorder prior to December 2013.
At the time of giving his viva voce evidence, eleven months had passed since Dr Ong had reviewed Mr Elmas. Ms Argiropoulos informed Dr Ong that Mr Elmas reports that he continues to hear voices, although with less frequency than was previously the case. According to Dr Ong, this confirmed the correctness of his diagnosis that Mr Elmas was suffering from paranoid schizophrenia; and also, given Mr Elmas had, by that time, spent nearly two years in custody, the correctness of the view that this underlying mental illness, as opposed to his drug use around the time of December 2013, caused the symptoms experienced by Mr Elmas at the time he engaged in the stabbings.
(b) Submissions at consent mental impairment hearing
Mr Tinney acknowledged that there was evidence that would compel a conclusion that Mr Elmas should be found not guilty because of mental impairment based on the second limb in s 20(1) of the Act. The position was somewhat unusual in that one of the three experienced psychiatrists, at an earlier time and for some time after that, had expressed a different view. However, the reasons for that earlier view were explained in Dr Sullivan’s final report and, in the end, all three psychiatrists were unanimous as to the opinion that, at the time of these events, Mr Elmas was suffering from the effects of schizophrenia such that he did not know that the conduct he engaged in was wrong in the sense described in s 20(1)(b).
Ms Argiropoulos adopted Mr Tinney’s submissions.
Accordingly, both the prosecution and the defence invited the court to find that, on the evidence, Mr Elmas should be found not guilty of all charges because of mental impairment.
(c) Conclusions and orders at consent mental impairment hearing
After reading all of the reports and relevant materials and hearing from Dr Ong, I was satisfied on the evidence that, at the relevant time, Mr Elmas was indeed suffering the effects of mental impairment of the type and degree required to make out the defence under s 20(1)(b) of the Act. In particular, I was satisfied that, because of the effects of schizophrenia, Mr Elmas did not know that his conduct was wrong – that is to say, he could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong. I therefore accepted the parties’ joint submission that it was appropriate that Mr Elmas be found not guilty by reason of mental impairment. Accordingly, on 4 November 2015, I directed that a verdict of not guilty by reason of mental impairment be recorded in respect of the charges against Mr Elmas.
Consistently with the parties’ further submissions, I also made orders that are commonly made following such a finding. In particular, I declared Mr Elmas liable to supervision under Part 5 of the Act and adjourned the matter to 21 December 2015 so that, in the interim, pursuant to ss 41 and 47 of the Act, a report could be prepared and a certificate of available services might be provided.
Hearing on final orders
(a) Hospital bed not available initially
When the matter returned to Court on 21 December, a certificate of available services was not provided. This was not because Mr Elmas failed to meet the criteria for such a certificate, but simply because there was no bed available at Thomas Embling Hospital for him at that time. The matter was adjourned to 21 March 2016 in the hope and expectation that, in the interim, a bed would become available.
(b) Further evidence
(i) Certificate of available services
When the matter resumed on 21 March, the Court, by that time, had received a certificate of available services indicating that a bed was available at Thomas Embling Hospital.
(ii) Reports of impact on others
At the hearing on 21 December, Mr Tinney tendered reports made by some of the persons who had been affected by this horrible tragedy.[9] In particular, the reports were from Mr Turgut and Mr Demir; Cigdem Sonmez and Ceylan Yilmaz (the daughters of Mr Aysel); Arzu Atak (the daughter of Mr Can); and Stewart Carter (a police officer involved in Mr Elmas’s arrest). The reports are moving documents which attest to, among other things, the great sadness and loss the family of Mr Aysel feels at their loved one’s horrible death; the devastating and lasting impacts that Mr Elmas’s actions have had on the lives of Mr Turgut, Mr Can and Mr Demir and their loved ones; and the disturbing impact behaviour of this type can have on police who are confronted with such scenes in the course of their work.
[9] See s 42 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
(iii) Dr Green’s report
As I indicated earlier, Dr Jessica Green provided a report, pursuant to s 41 of the Act, in which she recommended that Mr Elmas be admitted to Thomas Embling Hospital under a custodial supervision order for a prolonged period of multidisciplinary psychosocial rehabilitation.
In her report, Dr Green noted that Mr Elmas has been diagnosed with paranoid schizophrenia by several psychiatrists and is now managed with Zuclopenthixol (an anti-psychotic medication). She opines that he appears to have responded well to his treatment, with the development of insight and improved judgment. He is accepting of the need for a transfer from prison to Thomas Embling Hospital for ongoing treatment and rehabilitation. In her opinion, there remains some evidence of residual symptoms of psychosis. For example, he still hears “voices” (auditory hallucinations), albeit only about twice a week now. While some of these symptoms have continued despite treatment with antipsychotic medication and abstinence from drugs and alcohol, his symptoms are still greatly improved on medication.
In Dr Green’s opinion, Mr Elmas would benefit from: further psycho-education regarding his mental illness; further offence-specific work; dual diagnosis therapy (substance use in the context of mental illness); ongoing psychiatric support for monitoring and titration of his medication; graduated reintegration into the community through a graduated leave programme; education and support for his family; and vocational training and guidance in preparation for his eventual release back into the community.
(c) Submissions on final orders
Both Mr Tinney and Ms Argiropoulos submitted that, on the evidence, and given the principles outlined in the Act, the only appropriate order to be made in this case was a custodial supervision order.
(d) Conclusions on final orders
Section 26(1) of the Act provides that, once a person is declared liable to supervision under Part 5, the Court must make a supervision order. Section 26(2) provides, at least in the circumstances relevant to this case, that a supervision order may commit the person to custody in an appropriate place (such as the VIFMH, i.e. Thomas Embling Hospital) or release the person on conditions decided by the Court.
I agreed with Dr Green’s opinion and the parties’ submissions that the only appropriate order in the present case is a custodial supervision order committing Mr Elmas to the custody of the VIFMH.
Given that the charges of which Mr Elmas has been found not guilty by reason of mental impairment include a charge of murder, the nominal term required by s 28 of the Act in respect of such a custodial supervision order must be 25 years. Thus my order that the nominal term be 25 years.
I also directed that the nominal term commence from the day of Mr Elmas’s arrest, namely 5 December 2013. I made that direction given Mr Elmas’s relatively young age, the fact that he has been in custody in either Thomas Embling Hospital or prison since his arrest and that, because of the unavailability of a bed at the hospital, he has spent at least three months more in prison than was warranted by the orders I ultimately made in this matter.
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