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Court of Criminal Appeal 13 December 2023

McDiarmid v R

[2023] NSWCCA 322

Sexual offencesAssault & violenceTheft & property
CRIME APPEALS WHERE SPECIAL VERDICT ENTERED

Citation: McDiarmid v R [2023] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 13 December 2023
Judges: Harrison CJ at CL (lead judgment); Wilson J and Ierace J (agreeing)

Background

The appellant was tried before a judge sitting alone in the District Court on charges arising from an alleged break and enter at a Liverpool apartment in November 2020. The charges included break and enter with intent to commit a serious indictable offence, assault, and multiple counts of sexual touching without consent. The central issue at trial was a factual dispute between the complainant's account of events and the appellant's account.

Neither the appellant nor the Crown raised a mental health or cognitive impairment defence at trial. After closing submissions concluded, the trial judge contacted the parties by email to indicate he wished to hear from them on the possible defence of cognitive impairment. When the matter was relisted the following day, the appellant, through counsel, expressly and repeatedly disavowed any such defence and maintained his innocence. The Crown also opposed the entry of a special verdict.

Despite both parties' opposition, the trial judge delivered judgment the next day and entered a special verdict of "act proven but not criminally responsible" under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The verdict was based primarily on the judge's observations of how the appellant presented, together with some general evidence the appellant had given about historical brain trauma. Following the verdict, the appellant was remanded in custody and referred to the Mental Health Review Tribunal, leaving him without a release date.

  • Whether the trial judge erred in making findings about the operation of the brain in the absence of any expert or specific evidence directed to the appellant's cognitive functioning.
  • Whether the trial judge made factual errors productive of a miscarriage of justice by ignoring or failing to address aspects of the complainant's evidence.
  • Whether the trial judge failed to comply with s 133(2) of the Criminal Procedure Act 1986 by not adequately setting out principles of law and findings of fact regarding "adaptive functioning."
  • Whether the special verdict was unreasonable in all the circumstances.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal on Ground 3, finding it unnecessary to address the remaining grounds. Harrison CJ at CL held that it was not, in principle, an error for the trial judge to take judicial notice of the general proposition that frontal lobe damage can impede executive functioning. General knowledge of the relationship between brain damage and behaviour is an accepted matter of common knowledge.

However, the Court drew a critical distinction between that general proposition and the specific factual question of whether this particular appellant suffered from frontal lobe damage at all, and if so, what consequences followed for his behaviour and cognition. No expert evidence addressed those specific questions. In the absence of such evidence, the trial judge had impermissibly elevated his own lay observations of the appellant's presentation into conclusions about his cognitive functioning, without any medical foundation.

Wilson J added that even accepting it was open to the trial judge to conclude there was a cognitive impairment within the meaning of s 5 of the Act, there was no evidence capable of establishing that the impairment had the further required effect: that the appellant did not know the nature and quality of his act, or that it was wrong. The evidentiary foundation for the special verdict was therefore insufficient on any view.

The Court also addressed the practical consequences for the appellant of allowing the appeal. Setting aside the special verdict would end his status as a forensic patient and return him to the custody of NSW Corrective Services, potentially placing him in a less favourable position with respect to release than continued Mental Health Review Tribunal supervision. The appellant was made aware of this and nonetheless instructed his lawyers to proceed with the appeal.

Orders Made

  • Leave to appeal granted on Ground 3.
  • Appeal allowed on Ground 3.
  • Special verdict entered in the District Court on 4 November 2021 set aside.
  • Matter remitted to the District Court at the Downing Centre on 19 January 2024 for allocation of a fresh trial date.
  • Bail refused pending any release application.

Key Takeaways

  • A trial judge may take judicial notice of the general relationship between frontal lobe damage and executive functioning, but that general knowledge cannot substitute for specific evidence about the nature and extent of a particular accused's impairment and its effects on their cognition and behaviour.
  • Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a special verdict of "act proven but not criminally responsible" requires an evidentiary foundation capable of establishing both the existence of a cognitive impairment and that its effect was that the accused did not know the nature and quality of the act, or that it was wrong.
  • Lay observations by a trial judge about an accused's presentation, unsupported by expert medical opinion, are insufficient to ground a special verdict where no party has raised the defence and neither the accused nor the Crown has adduced relevant expert evidence.
  • Allowing a criminal appeal can produce adverse practical consequences for an appellant, particularly where a special verdict has resulted in forensic patient status under tribunal supervision. The Court of Criminal Appeal noted this tension directly, and the appellant nonetheless proceeded.
  • Applying Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, the Court confirmed that there is a clear boundary between matters of general common knowledge (amenable to judicial notice) and specific factual conclusions about an individual that require evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61KC, 112
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 144
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 5, 28, 30, 33, 34, 83

Cases:
- Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9 (applied)
- EE v R [2023] NSWCCA 188
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Smoje v Forrester [2017] NSWCA 308
- Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15
- Yebdoo v Holmewood [2021] NSWCA 119