Citation: R v Bivlocheff [2023] NSWDC 52
Court: District Court of New South Wales
Date: 28 February 2023
Judge: Haesler SC DCJ
Background
The defendant faced two serious charges arising from an incident on 23 August 2021 at a motel north of Narooma, NSW. The charges were: detention of a person without consent with intent to obtain an advantage (car keys), contrary to s 86(1)(b) of the Crimes Act 1900; and robbery while armed with an offensive weapon (a knife), contrary to s 91 of the same Act.
The incident involved the defendant, who had been staying at the motel, confronting the owner while in a highly agitated state. She found a knife in his truck, grabbed another resident and held the knife to her throat, then demanded the owner hand over the truck keys. The owner complied and threw the keys to her. The entire detention lasted a matter of seconds, though the victim said it felt far longer. Police later apprehended the defendant using appropriate and restrained force, with the encounter captured on body-worn video.
The matter proceeded as a judge-alone trial, an order that was not opposed. There were no real disputes about the underlying facts. The sole question was whether the evidence compelled the court to return a special verdict of "act proven but not criminally responsible" under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act).
Legal Issues
- Whether the elements of each offence were established beyond reasonable doubt
- Whether a special verdict under the MHCIFP Act was available in circumstances where the prosecution did not consent to a verdict without trial under s 31 of that Act
- Whether the psychiatric evidence established, on the balance of probabilities, that the defendant was suffering a mental health impairment at the time of the offending such that she did not know the acts were wrong or was unable to reason with a moderate degree of sense and composure
- What further orders were appropriate following a special verdict, including whether conditional release was warranted pending review by the Mental Health Review Tribunal
Decision
The court was satisfied beyond reasonable doubt that the elements of both offences were proven. On Count 1, the defendant had detained the resident without consent, intending to obtain an advantage in the form of car keys. On Count 2, she was armed with a knife and used the threat of force against a third person to compel the owner to hand over his keys. All elements of armed robbery were made out.
The central dispute concerned the psychiatric evidence. Dr Adam Martin diagnosed the defendant with chronic schizophrenia and expressed the view that it was "likely" she had been suffering a mental health impairment at the time of the offending that left her unable to know the acts were wrong or to reason with a moderate degree of sense and composure. His opinion was offered in qualified terms. Dr Calum Smith expressed a more definitive professional opinion to the same effect. Neither expert was required for cross-examination.
His Honour noted the distinction in the language used by the two experts but found that, taken together, the expert evidence was not challenged and did assist his assessment. The body-worn video and other evidence further confirmed the defendant's hypervigilant, agitated, disinhibited, and irrational state at the time. The court was satisfied on the balance of probabilities that the defendant was suffering a mental health impairment arising from a psychotic disorder, not caused solely by temporary intoxication, and that this impairment meant she did not know the acts were wrong at the time of the offending. Special verdicts were returned on both counts.
On the question of release, the court declined to make a conditional release order at that stage. The defendant was remanded in custody pending a further report from Dr Smith addressing whether her release would seriously endanger her own safety or that of any member of the public, as required by s 33(3) of the MHCIFP Act. The matter was adjourned for further hearing.
Orders Made
- Special verdict of "act proven but not criminally responsible" entered on each count
- Defendant referred to the Mental Health Review Tribunal pursuant to s 34 of the MHCIFP Act
- Defendant remanded in custody until a further order is made by the Court or the Mental Health Review Tribunal
- Registrar directed to notify the Mental Health Review Tribunal of the judgment and orders as soon as practicable, and to provide the Tribunal with relevant documentation including the judgment and the reports of Dr Smith and Dr Martin
- Report requested from Dr Calum Smith (forensic psychiatrist) pursuant to s 33(2) of the MHCIFP Act, addressing the defendant's condition and whether her release would likely seriously endanger the safety of the defendant or any member of the public
- Report to be filed and served seven days before the next hearing date
- Matter adjourned to 31 March 2023 at Wollongong District Court (part heard); defendant to appear by AVL
- Sequences 02, 03, 04 and 05 withdrawn and dismissed
Key Takeaways
- The District Court confirmed that a judge-alone trial is an available procedure for determining whether a special verdict should be returned under the MHCIFP Act, even where the prosecution does not consent to a verdict being entered without trial under s 31 of that Act.
- A special verdict of "act proven but not criminally responsible" requires the court to be satisfied on the balance of probabilities that the defendant was suffering a mental health impairment that meant they did not know the acts were wrong, or could not reason with a moderate degree of sense and composure. The criminal elements of the offences must still be established beyond reasonable doubt.
- Where two psychiatric experts used different language, one expressing a "likely" finding and the other a more definitive opinion, the court treated the distinction in linguistic confidence as a matter of expert style rather than a substantive disagreement, particularly where the evidence was unchallenged.
- Under s 33(3) of the MHCIFP Act, conditional release following a special verdict is not automatic. The court must be satisfied that the defendant's release will not seriously endanger the safety of the defendant or any member of the public, and may require a further psychiatric report before making that determination.
- Referral to the Mental Health Review Tribunal is mandatory following a special verdict. The District Court here retained oversight of the matter pending that Tribunal's review, remanding the defendant in custody in the interim.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 86(1)(b), 91
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 31, 33, 34
- Evidence Act 1995 (NSW), ss 79, 80
Cases
- Re M'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