R v Bivlocheff

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].