McDiarmid v R [2023] NSWCCA 322

McDiarmid v R [2023] NSWCCA 322

It was error for the trial judge to enter a special verdict of act proven but not criminally responsible absent specific evidence showing how Mr McDiarmid's cognitive functioning was impaired by his history of brain trauma. General knowledge of the relationship between brain damage and behaviour does not suffice to draw medical conclusions about Mr McDiarmid without expert evidence.

Parties
Applicant: Jamie Thomas McDiarmid; Respondent: Rex
Jurisdiction
Australia
Judgment Date
13 December 2023
Procedural Posture
Criminal Appeal / Application for Leave and Appeal Decision
Outcome
Appeal allowed; special verdict set aside; new trial ordered
Legal Topics
Appeals, Special Verdict, Mental Health Impairment, Cognitive Impairment, Judicial Notice
Criminal Law Appeals Special Verdict Mental Health Impairment Cognitive Impairment Judicial Notice

Case Brief

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Parties

Jamie Thomas McDiarmid

Applicant

Rex

Respondent

Procedural Posture

Criminal Appeal / Application for Leave and Appeal Decision

Legal Issues

  1. 1 Whether the trial judge erred by making findings of fact about the operation of the brain without any evidence
  2. 2 Whether the special verdict of act proven but not criminally responsible was properly entered under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Ratio Decidendi

It was error for the trial judge to enter a special verdict of act proven but not criminally responsible absent specific evidence showing how Mr McDiarmid's cognitive functioning was impaired by his history of brain trauma. General knowledge of the relationship between brain damage and behaviour does not suffice to draw medical conclusions about Mr McDiarmid without expert evidence.

Court Disposition

Appeal allowed; special verdict set aside; new trial ordered

Orders

  • Grant leave to appeal on ground 3
  • Allow the appeal on ground 3