R v Bivlocheff

[2023] NSWDC 52

District Court

New South Wales

Medium Neutral Citation:

R v Bivlocheff [2023] NSWDC 52

Hearing dates:

28 February 2023

Date of orders:

28 February 2023

Decision date:

28 February 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Special verdict of act proven but not criminally responsible

Orders at [60]

Catchwords:

CRIME - Take/detain person with intent to obtain advantage - Robbery armed with offensive weapon

MENTAL HEALTH - Criminal proceedings –judge alone trial – is a special verdict available – no factual issues – dispute between experts – was mental health impairment “present” or “likely” to be present - special verdicts returned – referral to the Mental Health Review tribunal – report requested - further orders

Legislation Cited:

Crimes Act 1900

Evidence Act 1995

Mental Health and Cognitive Impairment Forensic Provisions Act (NSW)

Cases Cited:

ReM'Naghten (1843) 8 ER 718

Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56

The King v Porter (1933) 55 CLR 182; [1933] HCA 1

Texts Cited:

Introducing the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020, M Ierace, Judicial Officers Bulletin Vol 33 No 2 March 2021.

Category:

Principal judgment

Parties:

Amanda Bivlocheff (the defendant)
Director of Public Prosecutions

Representation:

Counsel:
Mr E Anderson (for the defendant)
Mr T George, Solicitor Advocate (for Director of Public Prosecutions)

Solicitors:
Blaxland Law (for the defendant)

File Number(s):

2021/00245337

JUDGMENT– EX TEMPORE REVISED

Introduction

1. This morning Amanda Bivlocheff was arraigned and said she was not guilty of two serious criminal offences. Each offence is said to have occurred on 23 August 2021 at North Narooma. Count 1 is a charge of detention of person without her consent with intention of obtaining an advantage, namely, a set of car keys; a charge pursuant to s 86(1)(b) of the Crimes Act 1900. Count 2 is a charge that she, being armed with an offensive weapon, robbed another person of a set of keys; a charge pursuant to s 91 Crimes Act.

2. Before today an order was made by a judge of this Court that this matter proceeds before a judge sitting without a jury. That order was not opposed. The matter was listed for this week’s sittings at Bega. Prior to the sittings I was informed that there would be a narrow issue to determine.

3. There are no real issues of fact. The defence position is that on review of all of the evidence, including expert evidence I would be compelled to return a special verdict pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act).

4. In some cases where the defendant and the prosecutor agree on the nature of the impairment and the medical evidence a special verdict can be returned without trial: s 31 MHCIFP Act. Here the prosecution did not agree, but the issue as between the parties was quite narrow.

5. This morning I received as Exhibit 1 a bundle of documents including; two reports from Dr Adam Martin, 17 August 2022, and 21 February 2023 and six witness statements. A Triple‑0 call, exhibit B, was and played in court. It included a real time narrative of the events presently before the Court. I also saw a short mobile phone footage, primarily in audio form, which captured the incident, and a number of extracts from police body-worn videos, and in particular the police officers’ attempts to talk the defendant into surrender and her subsequent apprehension.

6. The defence tendered a report from Dr Calum Smith dated 22 May 2022. Dr Smith and Dr Martin were not required for cross-examination.

7. At this stage I note, that from the material before the police behaviour appeared me to be exemplary. The officer’s handled themselves with appropriate restraint. They showed concern not just their safety and the safety of witnesses but also the safety of the defendant. Although force had to be used it appeared to be entirely appropriate and was done with caution and respect.

The facts for determination

8. The defendant had been living at a motel north of Narooma, New South Wales. At times other residents and the owners noticed that her behaviour was unusual. On 25 August 2021 she appeared to be distressed and behaving and acting erratically. She was talking about “squatters’ rights.” She was seen carrying boxes of clothing, dropping them, picking them up and going to a shed at the rear of the property. One of the owners of the property drove up near her in his truck. He got out to speak with her. As he approached the defendant, she shouted things at him asserting her “squatters’ rights”

9. Her talk about squatters’ rights made no real sense to the owner, and I suspect on the material before me it made no real sense to the defendant. At one stage the defendant put her head inside the truck and went through the front compartment. When she came out of the truck, she was holding a knife with a black handle which she had found in that compartment. She started yelling at the owner who backed away from her. She asked for the truck’s keys.

10. Another resident who had been friendly with the defendant walked towards her asking that she calm down. She had also taken the mobile phone coverage.

11. Things happened very quickly thereafter. The defendant was able to grab the good Samaritan spin her around, held her facing the owner. The knife was held up against the right side of her throat. At one stage the knife actually touched her throat.

12. The defendant yelled to the owner of the premises “Give me the fucking keys, I’ve got a hostage now”. Understandably the witness being held feared for her life. And, understandably the owner acted appropriately and threw the keys towards the defendant. At which point she pushed away her hostage. She then went to a building on the site, which was under construction.

13. At all relevant times the owner of the premise was talking to Triple‑0. The Triple‑0 call records his narrative of events as in the background the defendant is yelling. Although in her police statement the witness said she was held for what seemed to take quite a long time the actual incident took a matter of seconds.

14. What occurred thereafter is the subject of police body-worn video footage. The body-worn video also captures the hypervigilant, agitated, disinhibited, distressed and irrational statements and behaviour by the defendant.

Can the elements of the offence be proved?

15. Turning to the elements of the offence, Count 1. I am satisfied beyond reasonable doubt that the defendant detained the witness. It is clear that the witness did not consent, and to the extent that she was able, not taking into account mental health matters, the defendant intended to get some advantage - the car keys.

16. Accordingly, each of the elements of Count 1 are satisfied beyond reasonable doubt.

17. So far as Count 2 is concerned, the evidence indicates that the defendant was armed with an offensive weapon, the knife. Pursuant to her demand the victim provided property to her, because of the threat to another with that offensive weapon. The car keys which were his property, satisfying all the elements of evidence of armed robbery.

The issue in dispute

18. The real issue is whether based on the expert psychiatric evidence before me a special verdict can be returned.

19. It is accepted that Dr Adam Martin and Dr Callum Smith have specialised knowledge based on their training, study, and experience, and are entitled to give opinions to the Court presumed to be outside my experience: s79 Evidence Act 1995.

20. While technically I do not have to accept even unchallenged evidence, those opinions were not challenged and did assist in my assessment of the evidence and the critical issue.

21. The apparent distinction between them is that Dr Martin expressed what he believed to be a “likely” prognosis and finding, whereas Dr Smith was more definite in his professional opinion. I noted in discussion that some experts are reluctant to express an opinion about the ultimate issue; although that option is available to them: s 80 Evidence Act.

Dr Martin’s opinion

22. Dr Martin’s first report sets out the defendant’s personal and psychiatric history noting that she had multiple admissions to psychiatric hospitals since 2015 and regular prescriptions for antipsychotic medication. It appears that while she may have had a prescription in August 2021, she may not have been taking that mediation. There is also a history of long-term alcohol and other drug use, which he factored into his opinion.

23. When he saw the defendant in August 2022 she was still presenting with persecutory and grandiose statements and delusions. He noted no major or acute cognitive deficits, but in his opinion, the defendant was suffering, had been suffering at the relevant time, from a chronic illness - schizophrenia. At page p 34 he says:

“Schizophrenia --is essentially the description of a person being vulnerable to experience of psychotic phenomenon such as delusional thinking, hallucinations, disordered thought form and disorganised behaviour. Schizophrenia and related conditions are considered severe because of the relevant impairment associated, often associated with impaired insight or self-awareness for one’s condition and the need for treatment.”

24. Having reviewed the evidence presented to him which is essentially what was presented to me, and having had an opportunity to speak with, albeit by AVL, the defendant, Dr Martin formed the view that it is “likely” that a court would find the defendant is suffering a mental impairment as defined in the Mental Health Cognitive Impairment Forensic Provisions Act (the Act).

25. In Dr Martin’s “view”:

“At the time of the alleged offending she was experiencing an ongoing disturbance of thought, mood, volition and perception which will be regarded as significant for clinical diagnostic purposes, and which impaired her emotional wellbeing, judgment and behaviour.”

26. He notes that in his view the mental health impairment so described arose out of a psychotic disorder. He also formed the view that it was not caused solely by the temporary effect of ingesting a substance or the defendant’s substance use disorder.

27. Accordingly, his preliminary view was that it was:

“--likely that while experiencing mental health impairments that she did not know that the alleged acts were wrong, and that she would be considered to have been unable to reason with a moderate degree of sense and composure about whether the acts as perceived by reasonable people were wrong.”

28. He noted that in his opinion a mental health impairment defence could be reasonably be argued.

29. Dr Martin was asked to provide a supplementary report as he was provided with additional material going to the offender’s drug use history. Having reviewed that material he concluded that while the notes provided did demonstrate a varying mental state and various clinical impressions, the material provided to him did not cause him to change his original opinion.

Dr Smith’s opinion

30. Dr Smith provided a detailed report. He had also reviewed all the relevant factual material. He took a personal and psychiatric history. He appropriately considered the question of the defendant’s fitness to stand trial and found in his opinion she was fit.

31. He then gave his clinical opinion that Ms Bivlocheff has schizophrenia. He summarised that illness in similar terms to Dr Martin. He also noted that she meets the criteria for complex trauma and a substance use disorder (currently in remission). He noted a previous diagnosis of Attention Deficit Disorder.

32. In his opinion at the relevant time, and the time of interview, Ms Bivlocheff’s most significant mental health impairment was schizophrenia.

33. Dr Smith noted the causes of schizophrenia are complex and multifactorial. He noted that the cause of the illness is difficult to establish He was asked in his letter of instruction whether there was a likely causal connection between the defendant’s impairment and the events. He said:

“Causality is difficult to establish in science. Nevertheless, the descriptions in the facts sheet and the account given by the patient suggest a link between her mental impairment and her behaviour on the day.”

34. Dr Smith concluded that the defendant is, and was, suffering from a mental health impairment, schizophrenia. He noted that she was not being treated at the time. He noted that at the time the symptoms of the disorder appear to have impaired her thought - by delusions and possibly her perception - by hallucination.

35. In his opinion it is likely she was suffering from delusions and hallucinations across the period of time of the offences, and it did not appear she had much ability to reason about the wrongness of her acts; “The overall mental state appears linked to the psychotic symptoms I believe she has experienced”.

36. He considered the possibility of intoxication, but in his opinion her mental processes were impaired around the time of the offence.

37. The material put before me so far as the defendant’s behaviour is concerned is consistent from a layman’s point of view with those conclusions.

Resolving the dispute

38. Having considered the opinions of Dr Martin and Dr Smith and the submissions of counsel, I can find no real difference between the two experts other than how they are expressed.

39. Dr Martin’s opinion is clear. He chose however to express it in terms of how the court is “likely” to regard his opinion. That deference does not reduce its effect. Like Dr Smith, in his opinion Ms Bivlocheff was suffering from a mental health impairment, schizophrenia. Schizophrenia is a mental health impairment.

40. Accordingly, I proceed on the basis that both experts agree that at the relevant time the defendant she did not know that the alleged acts were wrong, and she was unable to reason with a moderate degree of sense and composure about whether her acts as perceived by reasonable people were wrong.

The MHCIFP Act

41. The MHCIFP Act contains specific definition provisions that govern how a defendant with a mental illness who is charged with serious offences can be dealt with:

42. Section 4 MHCIFP Act defines 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.

43. Section 28 MHCIFP Act deals with the 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.

44. The MHCIFP Act replaces common law provisions which previously applied and which described what is now defined as a “mental health impairment” as an “abnormality of mind arising from an underlying condition”.

The defence of mental health impairment

45. The defence mental health impairment has until recently been known as the defence of mental illness. It was first spoken of in 1843 in Re M'Naghten (1843) 8 ER 718. It was applied in more modern times in terms explained by the High Court in The King v Porter (1933) 55 CLR 182; [1933] HCA 1 and Stapleton v The Queen; (1952) 86 CLR 358; [1952] HCA 56. It is now set out in s 28(1) MHCIFP.

46. Section 28(1) MHCIFP Act now incorporates what were previously known as the two limbs of the defence of mental illness and the M’Naghten rules as modified by The King v Porter, where it was said that “What is meant by wrong, is wrong having regard to the everyday standards of reasonable people.”

47. Section 28(3) MHCIFP Act reflects the common law principle dating back to at least the M’Naghten rules, but for the purposes of the defence it is presumed the defendant did not have mental health impairment or cognitive impairment or both. I note the helpful article by Justice Ierace, Introducing the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Judicial Officers Bulletin Vol 33 No 2 March 2021.

48. I need to be aware, as I would have directed a jury, of the legal and practical consequences of returning a special verdict of act proven but not criminally responsible.

49. A defendant who is found to have committed the act constituting the offence but not to be criminally responsible because of mental health impairment or cognitive impairment, or both will, be subject to review by the Mental Health Review Tribunal, and generally if they are detained at the time of review, will not and cannot be released to the community unless the safety of the defendant and any member of the public will not seriously be endangered by their release: s 29 MHCIFP Act.

Determination

50. Having reviewed the material before the Court. I accept the expert opinions of Dr Martin and Dr Smith. Having applied the tests in s 28 MHCIFP Act, it is clear to me both because of the expert opinion and the defendant’s behaviour at the relevant time that she did have a mental health impairment.

51. While she was able to know, superficially, what she was doing, she did not know the nature and the quality of her acts. She did not know what she was doing was wrong because she could not reason with a moderate degree of sense and composure about whether her acts, as perceived by reasonable people were wrong. That is because she had a mental health impairment.

Verdicts

52. Given those findings - the verdicts of the Court are:

1. Count 1 - a special verdict of act proven but not criminally responsible will be returned.

2. Count 2 - a special verdict of act proven by not criminally responsible is returned.

Further orders

53. The result of those verdicts is that Ms Bivlocheff has become a forensic patient. She must be referred to the Mental Health Review Tribunal. But the question of her immediate disposition needs to be resolved. Ms Bivlocheff has been in Corrective Services custody since her arrest for this matter in August 2021.

54. On the return of a special verdict of act proven but not criminally responsible, the court has a number of options. It may make one or more of the following orders:

1. an order that the defendant be remanded in custody until a further order is made under this section,

2. an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law,

3. an order for the unconditional or conditional release of the defendant from custody,

4. other orders that the court thinks appropriate: s33 (1) MHCIFP Act.

55. Before making an order for the release of a defendant, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public: s 33 (2) MHCIFP Act.

55. The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant’s release: s 33(3) MHCIFP Act.

56. Ms Bivlocheff must be referred to the Mental Health Review Tribunal, but I was advised that their review may take some time. Mr Anderson asked that I make an order for the conditional release of the defendant from custody.

57. Having discussed what further orders must be made. I indicated that I would keep the matter before me so that a determination could be made about whether or not the Ms Bivlocheff should remain in Corrective Services custody or be conditionally released pending the determination of the Mental Health Review Tribunal.

58. Accordingly, I adjourned the matter and requested a report be obtained from Dr Smith directed to “the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public.”

Orders

60. I make the following Orders:

1. On each count special verdict of act proven but not criminally responsible

2. I refer the defendant to the Mental Health Review Tribunal pursuant to s34 Mental Health and Cognitive Impairment Forensic Provisions Act 2020

3. I order that the defendant be remanded in custody until a further order is made by the Court or the Mental Health Review Tribunal.

4. I direct the Registrar of the Court, as soon as practicable, to notify the Mental Health Review Tribunal of this judgment and order;

5. I request a copy of today’s judgment be prepared by RSB as soon as possible for that purpose;

6. I direct the Registrar of the Court provide to that Tribunal the relevant documentation including a copy of my judgement and the reports of Dr Calum Smith and Dr Adam Martin.

7. Pursuant to s33(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020, I request a report by Dr Calum Smith, Forensic psychiatrist, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public.

8. I adjourn the proceedings for further hearing on 31st March 2023 at Wollongong District Court – part heard. The defendant is to appear by AVL.

9. The report requested to be filed and served 7 days prior to the hearing date on 31st March 2023

10. Sequences 02,03,04 & 05 are withdrawn and dismissed.

Decision last updated: 10 March 2023