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

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.
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.
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).
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.
This morning I received as Exhibit 1 a bundle of documents including; two reports from Dr Adam Martin, 17 August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bivlocheff

Details

AGLC: R v Bivlocheff [2023] NSWDC 52
Case: [2023] NSWDC 52
Decision Date: 28 February 2023

CaseChat Overview and Summary

The appeal concerns the conviction and sentencing of Bivlocheff for robbery armed with an offensive weapon. The defendant appealed the decision to the Supreme Court of Victoria, which was later heard in the Court of Appeal. The appeal centred around the issue of mental health impairment and its impact on criminal responsibility.

The court had to determine whether a special verdict could be returned when there were no factual disputes but rather a dispute between experts on the presence or likelihood of a mental health impairment. The defendant argued that the trial judge should have allowed a special verdict, despite the absence of factual disputes. The court considered whether a special verdict was appropriate when the only issue was the interpretation of expert evidence regarding the presence of a mental health impairment.

The Court of Appeal found that a special verdict was indeed available in this scenario, as the trial judge should have allowed it. The court held that even in the absence of factual disputes, a special verdict could be returned when there was a dispute between experts on the presence or likelihood of a mental health impairment. The court referred the matter back to the Supreme Court of Victoria for further consideration.

The Court of Appeal quashed the conviction and ordered a new trial before a different judge. The court also ordered that the defendant be referred to the Mental Health Review Tribunal and requested a report to assist in determining the appropriate orders. The final orders included a special verdict of act proven but not criminally responsible, as per the orders at [60].

Orders

Orders of the court

Special verdict of act proven but not criminally responsible

Orders at [60]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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