McDiarmid v R

1. [1]

   HARRISON CJ at CL: Jamie McDiarmid seeks leave to appeal against a special verdict of act proven but not criminally responsible pursuant to s 28 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) entered by his Honour Judge McClintock SC on 4 November 2021. Mr McDiarmid was tried before his Honour sitting without a jury charged with the following offences:

2. [2]

   His Honour returned the special verdict on Count 1. No verdict was given on the remaining charges which were brought in the alternative to count 1. Following the verdict, Mr McDiarmid was remanded in custody and referred to the Mental Health Review Tribunal: ss 33(1)(a) and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Mr McDiarmid remains without a release date.

3. [3]

   Four grounds of appeal are relied on:

4. [4]

   In my opinion, for the reasons that follow, leave to appeal should be granted, Ground 3 should be upheld and the appeal allowed. It becomes unnecessary in the circumstances to consider the other grounds of appeal.

Background

1. [5]

   The events that give rise to the charges occurred at an apartment in Liverpool on 5 November 2020. The complainant, aged 29, had lived there since May the same year. She did not know Mr McDiarmid. It was not in issue that he was then aged 38 when he attended the unit and interacted with the complainant. The terms of that interaction are disputed.

2. [6]

   The complainant gave evidence that at 6:30pm she was “lightly dozing” in bed when she heard the closed but unlocked door to her unit open. She left her bedroom and saw Mr McDiarmid standing in her living room. She said “who are you? What are you doing here?” She said that in response he mumbled and spoke “gibberish”. He appeared to be “very intoxicated or high”.

3. [7]

   The complainant said she was shocked but pretended to treat him like a friend she had not seen for a long time. This was a method of trying to persuade him to leave voluntarily. She gave him a cigarette and a drink. They sat next to each other on the lounge. Mr McDiarmid said something like “I had a friend that lived here” or “I used to live here”. He also introduced himself. The complainant could not remember what name he used, but she said it started with the letter “J”. The complainant wrote a fake name and number on a piece of paper and gave it to Mr McDiarmid, saying something like “call me later, see you again soon”. She walked to the door of the unit and said, “it’s time for you to leave, it was so good seeing you”.

4. [8]

   After the complainant went to the door, she alleged Mr McDiarmid pushed the door shut and pulled her pants down on one side by touching the waist band and feeling her cheek. This occurred while she was facing the door and he was behind her. She said that he then licked the right side of her face, including the neck and jaw area and put his arms around her such that she could feel his erection against her backside.

5. [9]

   According to the complainant, when Mr McDiarmid first touched her, she recalled saying something along the lines of “What the fuck?...Get the fuck out. No way, get the fuck out”. She also said that at some point Mr McDiarmid stood very close to her face and said, very aggressively, “you’re a fucking gold digger, you’re a fucking gold digger”.

6. [10]

   The complainant left the unit via a door that led to the balcony. She then left the balcony, which is on the ground floor, by climbing over the balustrade. She walked around the side of her unit block and hid behind a vehicle. She called triple-0 and reported what had just happened. The complainant told the operator that she thought Mr McDiarmid was “on ice or something, he is like mumbling and he smells like alcohol”. She said that Mr McDiarmid was initially aggressive towards her, before she offered him a drink and cigarette. She said, “he was like you’re a very pretty girl and I was like oh here take my number um then he was like trying to kiss me in the house and I was pushing him away…”. The complainant said, “I tried to walk towards my like, walk towards my door, he pulled me back by the back of my trackpants, he tried to pull my trackpants down, which I pulled up…He was trying to feel up the back of my shirt and um I don’t know but…he was doing those sorts of things like”.

7. [11]

   In cross-examination, the complainant disagreed that Mr McDiarmid rubbed her feet. She also disagreed there was any conversation about sore feet.

8. [12]

   The police attended the unit block and spoke to both the complainant and Mr McDiarmid in separate conversations. Those conversations were captured, in part, by body worn cameras. The recorded conversations with Mr McDiarmid, are difficult to follow. However, some things said by Mr McDiarmid include the following:

9. [13]

   Mr McDiarmid was arrested and taken to Liverpool Police Station. The Custody Management Records showed Mr McDiarmid said he had taken ice, cannabis and alcohol. His intoxication level was described as “seriously affected”. He was described as “highly irate, agitated and not making sense...abusive, threatening and violent”. Some four hours later, at 10:30pm, Mr McDiarmid was described as no longer displaying the effects of being under the influence of alcohol or drugs. He was described as abusive, aggressive and violent when speaking to the police but calm when left alone.

10. [14]

    The officer-in-charge of the investigation gave evidence about his interactions with Mr McDiarmid on the evening of the incident. He said he attempted to “get a forensic procedure from him” but that did not occur until the following morning because of Mr McDiarmid’s “aggressive nature at that time”. He also formed the view Mr McDiarmid was intoxicated or affected by some sort of intoxicating substance at the time he spoke to him.

11. [15]

    Mr McDiarmid gave evidence. He said he attended the complainant’s address that day because he was looking for his friend, Ray, and he had previously attended a party there. He said he was hoping to get some drugs from that place so that he could make some money.

12. [16]

    Mr McDiarmid said he pressed a couple of the buzzers at the entrance, and was then “buzzed into the building”. Once inside the building, he saw a door to one of the units was wide open. He saw a woman inside who was asleep on the lounge. She woke up and looked at him. Whilst standing outside her unit, he asked her, “is Ray here”? She responded, “Who’s Ray?” He then asked her if she had a cigarette and if she knew the time. She went to her handbag and produced a cigarette. She then gestured for him to enter and take the cigarette. She offered him a drink. He accepted the offer but asked if he could first use the toilet. He used the toilet and then sat with her on the lounge. He complained of sore feet. She said she also had sore feet and put them on his lap. He then rubbed her feet for 30 to 40 seconds. She then stood up and walked to the front door. She was on her phone and said she would be back in a minute. She walked out the door and did not return. Mr McDiarmid denied there was any sexual touching.

13. [17]

    Mr McDiarmid remained in the unit and finished his drink. He then started to feel uncomfortable. After five or ten minutes he went out to the driveway and then saw the complainant talking to the police. She then pointed at him and said, “that’s him”. Mr McDiarmid then spoke to the police. He said in evidence that if he had done something wrong, he would have fled.

14. [18]

    Mr McDiarmid said that earlier that day he smoked about a gram of cannabis and had a few alcoholic drinks. He smoked a few grams of ice a couple of days earlier. He was unsure whether he was still affected by the ice. He said he was a “bit stoned” when he first arrived. He also said he was “stoned” and “fried” when he was sitting on the lounge with the complainant.

15. [19]

    Mr McDiarmid also said that he had sustained three brain injuries:

16. [20]

    It was a feature throughout the trial that Mr McDiarmid made a number of interruptions to the proceedings . The trial judge frequently intervened to control him. Despite this behaviour, his counsel was satisfied that he was fit to stand trial and no issue of fitness was raised.

The trial

1. [21]

   The parties made closing argument on 2 November 2021 that generally focussed on the competing versions of the facts, including Mr McDiarmid’s state of mind. The trial judge adjourned, reserving judgment until 4 November 2021. The trial judge thereafter emailed the parties seeking submissions on the defence of cognitive impairment, which led to the matter being relisted for further argument on 3 November 2021. On that date, the trial judge raised the question of whether the option of a special verdict should be considered, and if so, whether such a verdict should be returned. During submissions, defence counsel declined an invitation to present further evidence and indicated that previous attempts to have Mr McDiarmid assessed were unsuccessful. She also resisted the special verdict, indicating that her instructions did not favour such an outcome. The Crown also advocated against the special verdict.

The judgment

1. [22]

   The trial judge, in summary, reasoned as follows.

2. [23]

   He accepted that the incident occurred in the way described by the complainant. His Honour regarded her as “an entirely credible witness” having regard to the following. Her 000 complaint was immediate, and consistent with her evidence. She did not embellish the allegations when given the opportunity to do so by the operator. The recording revealed she was in a distressed condition, which was consistent with her account.

3. [24]

   There were no significant inconsistencies in her evidence, including in the complaint evidence. The one exception was the claim in the message to her sister that she was “beaten”. However, the trial judge noted she was not cross-examined about that and his Honour did not regard it as a matter that undermined her otherwise “consistent and believable narrative”.

4. [25]

   Mr McDiarmid’s comment to the police that the complainant did not want or allow him “to put one in” [her] was consistent with her account that the event involved unwanted sexual advances.

5. [26]

   By contrast, the trial judge found Mr McDiarmid’s account of the event “confusing”. His Honour said it lacked “logical and narrative consistency”. The trial judge noted that his version “varied considerably” on each occasion he described the event, including who he was there to see and why. His Honour accepted the Crown’s various criticisms of Mr McDiarmid’s evidence, which included inconsistencies about the position of the door and whether the complainant asked him to leave.

6. [27]

   Further, the trial judge was satisfied beyond reasonable doubt that the door was closed before Mr McDiarmid opened it. The photographic and video evidence showed an operational gas strut that caused the door to close automatically. This supported the complainant’s account that the door was closed before Mr McDiarmid entered and undermined his account that the door was either ajar or wide open.

7. [28]

   For these reasons, the trial judge accepted that Mr McDiarmid committed the physical acts of break and enter as well as the various acts of sexual touching.

8. [29]

   His Honour concluded beyond reasonable doubt (even though the standard of proof was lower than that) that Mr McDiarmid had a cognitive impairment: s 5 of the Act. His Honour had regard to:

9. [30]

   His Honour considered s 28 of the Act and concluded, on the balance of probabilities, that Mr McDiarmid did not know that his actions were wrong in the sense that he could not reason with a moderate degree of sense and composure about whether his actions, as perceived by reasonable people, were wrong. His Honour had regard to Mr McDiarmid’s behaviour during the event, including the fact that:

10. [31]

    The trial judge concluded that Mr McDiarmid suffered a delusion “that a stranger would want to seduce him and he was unable to heed all the obvious indicators to the contrary”.

11. [32]

    Sections 28 and 30 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 provide as follows:

12. [33]

    Having set out these provisions, his Honour proceeded as follows:

13. [34]

    Thereafter, under the heading COGNITIVE IMPAIRMENT, his Honour concluded as follows:

Mr McDiarmid’s submissions

1. [35]

   As noted above, his Honour concluded that Mr McDiarmid’s conduct provided clear evidence of frontal lobe injury. He submitted that his Honour was not permitted to form the conclusion or express the unsupported opinion that “it is well known that the frontal lobe of the brain controls executive functions”. That was said to be so because:

2. [36]

   Moreover, Mr McDiarmid contended that even if s 144 was the mechanism upon which his Honour relied to have regard to this “information”, he did not comply with s 144(4) which provides:

3. [37]

   His Honour raised the prospect of returning a special verdict and invited submissions on that issue, but Mr McDiarmid submitted that he did not “refer to relevant information” relating to the frontal lobe or its relationship with executive functions. This was particularly so in circumstances where his Honour had been informed that Mr McDiarmid did not support a special verdict: “My client is clearly not supportive of running a mental illness defence”.

4. [38]

   Mr McDiarmid submitted that by acting on matters that were not the subject of evidence, the trial judge made factual and legal errors. The legal error was of a kind within the second limb of s 6(1) of the Criminal Appeal Act 1912; the former was productive of a miscarriage of justice within the third limb or s 6(1), thus warranting an order for a new trial: see Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [4] and [48]; EE v R [2023] NSWCCA 188 at [28]-[42].

Crown submissions

1. [39]

   The Crown embraced his Honour’s conclusion that Mr McDiarmid’s conduct provided clear evidence of a frontal lobe injury and the role of the frontal lobe on executive functioning. The Crown accepted that Mr McDiarmid gave evidence that he had sustained damage to the right front lobe of his brain in 1998 but that there was no medical evidence led in the trial to that effect. The Crown emphasised that proof is not required about knowledge that “is not reasonably open to question and is … capable of verification by reference to a document the authority of which cannot reasonably be questioned”: s 144(1) of the Evidence Act.

Consideration

1. [40]

   With great respect, it seems to me that the Crown’s submissions miss the point. It may be accepted for the purposes of the argument that there is a well-known and accepted relationship between frontal lobe damage and compromised executive functioning. Although Mr McDiarmid actually appears in terms to challenge the existence of that relationship or his Honour’s legitimate ability to refer to it, and also apparently challenges that it is a matter of which proof is not required because it is not reasonably open to question or capable of verification by reference to a document the authority of which cannot reasonably be questioned, it seems to me that his real objection is different and much simpler.

2. [41]

   Doing the best I can, Mr McDiarmid’s real concern would instead appear to be that there was no evidence in this case upon which his Honour could apply that notorious and uncontroversial medical relationship to the determination of whether Mr McDiarmid himself either has frontal lobe damage at all or the extent to which it may have affected his executive functioning if he does. On the contrary, his Honour has adopted the existence of a medical framework to support his non-medical and non-expert opinion about Mr McDiarmid’s behaviour and what in his Honour’s opinion has caused it. It is not the absence of expert evidence about the relationship between frontal lobe damage and behaviour generally which is of concern. It is the complete absence of expert or other technical evidence about Mr McDiarmid and his condition that could have permitted his Honour to conclude that Mr McDiarmid suffered from a consequential cognitive impairment, or that any such impairment meant that he did not know the nature and quality of his act, or that it was wrong.

3. [42]

   Nor does the Crown’s contention that his Honour complied with s 144(4) withstand scrutiny. For example, the Crown points to the following comments made by his Honour during the course of the trial:

4. [43]

   These are his Honour’s opinions. His Honour was undoubtedly entitled to express them. They are not, however, the opinions of a relevantly qualified expert. It could not in my view be said that his Honour’s opinions are not reasonably open to question or that they are capable of verification by reference to a document the authority of which cannot reasonably be questioned.

5. [44]

   Even if the parties were aware, as the Crown contends, that his Honour intended to take into account “the effect of [Mr McDiarmid’s] brain injury on his behaviour”, that did not simultaneously authorise his Honour to proceed to determine matters based upon his own opinions without evidence to support them. The generally understood and accepted relationship between frontal lobe damage and behavioural changes is analogous to the type of matters described by McHugh J in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9 at [66]:

6. [45]

   However, the extent to which, if at all, Mr McDiarmid suffered from frontal lobe damage, or the consequences for him, if any, in terms of his behaviour or cognition, are not similarly notorious. Ground 3 is formulated in terms that the trial judge erred by making findings of fact about the operation of the brain in the absence of any evidence. The ground of appeal ought more felicitously have been framed in terms that the trial judge erred by making findings of fact about the operation of Mr McDiarmid’s brain in the absence of any evidence.

7. [46]

   Before recording the orders I propose should be made, some attention should be given to the potentially adverse practical consequences for Mr McDiarmid of any order of this Court allowing his appeal. As a forensic patient, Mr McDiarmid is presently subject to the supervision of the Mental Health Review Tribunal. That body has the power to order the release of a forensic patient: s 83 Mental Health and Cognitive Impairment Forensic Provisions Act. Although this Court has no information concerning any proposed release, it must be assumed that there will be a release order at some stage.

8. [47]

   If Mr McDiarmid’s appeal is allowed, and the s 28 verdict is set aside, he will cease to be a forensic patient, and will in the ordinary course be returned to the custody of NSW Corrective Services. Only if granted bail pending any re-trial could he be released to the community. It is at least theoretically possible that Mr McDiarmid’s release could occur more expeditiously through review by the Mental Health Review Tribunal than by any grant of bail being made to him. To that extent, allowing his appeal could, in a practical way, visit an adverse outcome upon him.

9. [48]

   Understanding that, Mr McDiarmid was firm in the position he advanced to the Court to the effect that, regardless of the consequences, he wished to continue with his application for leave to appeal against the entry of the special verdict.

Conclusion

1. [49]

   For these reasons, I propose the following orders:

   1. (1)

      Grant leave to appeal on ground 3.

   2. (2)

      Allow the appeal on ground 3.

   3. (3)

      Set aside the special verdict entered in the District Court on 4 November 2021.

   4. (4)

      Remit the matter to the District Court at the Downing Centre on 19 January 2024 at 9:30am for the allocation of a fresh trial date.

   5. (5)

      Pending any release application, bail should be refused.

2. [50]

   WILSON J: I have had the advantage of reading the reasons of the Chief Judge at Common Law and agree with the orders proposed by his Honour, for the reasons he has given. Even if it was open on the evidence for the trial judge to conclude that Mr McDiarmid had a cognitive impairment as defined by s 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act, there was no evidence capable of establishing that the effect of any cognitive impairment was that he did not know the nature and quality of his act, or that it was wrong. There was insufficient evidence to support the special verdict.

3. [51]

   IERACE J: I agree with the orders proposed and reasons of Harrison CJ at CL, and with the additional reasons of Wilson J.