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.