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Supreme Court 10 August 2023

R v Eleter

[2023] NSWSC 931

Homicide
CRIME MURDER DECEASED STABBED MULTIPLE TIMES DEFENCE OF MENTAL HEALTH IMPAIRMENT

Citation: R v Eleter [2023] NSWSC 931
Court: Supreme Court of New South Wales
Date: 10 August 2023
Judge(s): Weinstein J

Background

The accused was charged with the murder of a 67-year-old woman in Riverwood on 5 December 2021, contrary to s 18 of the Crimes Act 1900. The accused and the deceased were strangers. CCTV footage and witness accounts placed the accused at the scene, and the deceased was found with multiple stab wounds; she was pronounced dead shortly after paramedics arrived.

The accused had a diagnosed history of schizophrenia and borderline intellectual disability. In the year leading up to the incident, he had been admitted to psychiatric units on six occasions and was non-compliant with medication at the time of the offence. Witnesses, including family members, observed him behaving in an acutely disturbed manner on the morning of the day in question.

When arraigned in July 2023, the accused entered a plea of not guilty by reason of mental health impairment. Both the Crown and the defence agreed that the available evidence established the statutory defence of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act).

  • Whether the evidence established a defence of mental health impairment under ss 4 and 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020
  • Whether the court was satisfied, on that evidence, to enter a special verdict of act proven but defendant not criminally responsible pursuant to s 31 of the Act
  • What consequential orders were appropriate following such a verdict

Decision

Weinstein J conducted a special hearing on 7 August 2023, re-arraigning the accused, who again pleaded not guilty by reason of mental health impairment. The hearing was not a judge-alone trial within the meaning of s 133 of the Criminal Procedure Act 1986, and the court characterised the process as an inquiry, not an adversarial or accusatorial proceeding.

The evidence tendered comprised a Statement of Agreed Facts signed by both parties, reports from two forensic psychiatrists (Dr Kerri Eagle and Dr Andrew Ellis), crime scene photographs, and related material. Both psychiatric reports supported the conclusion that the accused's mental health impairment satisfied the statutory defence.

His Honour was satisfied that the evidence established the defence of mental health impairment under ss 4 and 28 of the Act. Weinstein J entered a special verdict pursuant to s 31 of the Act: the act was proven, but the accused was not criminally responsible by reason of mental health impairment.

Consistent with the Act's framework, the accused was ordered to be detained and referred to the Mental Health Review Tribunal. The Tribunal is responsible for ongoing supervision and periodic review, and the accused may be released only if the Tribunal is satisfied his release would not seriously endanger his own safety or that of any member of the public.

Orders Made

  • A special verdict entered pursuant to s 31 of the Act: the act proven but the defendant not criminally responsible due to mental health impairment.
  • The accused ordered to be detained in a correctional facility, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law (s 33(1)(b) of the Act).
  • The accused referred to the Mental Health Review Tribunal pursuant to s 34 of the Act.
  • The Registrar directed to notify the Minister for Health of the orders as soon as practicable.
  • The Registrar directed to notify the Mental Health Review Tribunal and provide specified documentation, including the court's reasons, transcript, exhibits (including the psychiatric reports), and the victim impact statement.
  • The Registrar directed to notify the Justice Health and Forensic Mental Health Network and provide copies of the court's reasons and the psychiatric reports.

Key Takeaways

  • Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, where both the prosecution and defence agree that evidence establishes a mental health impairment defence, the court must still independently examine the evidence and be satisfied that ss 4 and 28 of the Act are met before entering a special verdict.
  • A special hearing of this kind is neither a judge-alone trial under s 133 of the Criminal Procedure Act 1986 nor an adversarial proceeding; it functions as a court-conducted inquiry into whether the statutory defence is established.
  • Weinstein J noted that, consistent with Fleming v R (1998) 197 CLR 250, there is no strict obligation to expose the full chain of reasoning from legal principles to facts, but transparency and open justice nevertheless warranted published reasons.
  • A special verdict of act proven but not criminally responsible results in mandatory referral to the Mental Health Review Tribunal, which holds ongoing supervisory jurisdiction, with release possible only upon the Tribunal's satisfaction that public safety would not be seriously endangered.
  • The victim impact statement was admitted and read in court pursuant to s 30L of the Crimes (Sentencing Procedure) Act 1999, confirming that this provision applies in special hearing proceedings.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 29, 31, 33, 34, 78, 84, 109
- Criminal Procedure Act 1986 (NSW), s 133
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30L

Cases
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68
- R v Siemek (No 2) [2021] NSWSC 1293