McDiarmid v R [2023] NSWCCA 322

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McDiarmid v R [2023] NSWCCA 322 Hearing dates: 06 December 2023 Date of orders: 13 December 2023 Decision date: 13 December 2023 Before: Harrison CJ at CL at [1]; Wilson J at [50]; Ierace J at [51] Decision: (1) Grant leave to appeal on ground 3. (2) Allow the appeal on ground 3. (3) Set aside the special verdict entered in the District Court on 4 November 2021. (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) Pending any release application, bail should be refused. Catchwords: CRIME – appeals – appeal against a special verdict of act proven but not criminally responsible – where trial judge considered accused presented unusually on complainant's account of acts charged, on body worn police camera and in court – where accused expressly and repeatedly disavowed potential mental health defence – where both accused and Crown opposed to special verdict at trial – where accused gave evidence of historical brain injury – where no expert evidence about effect of any potential impairment on accused's brain and cognitive functioning – where special verdict entered Legislation Cited: 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 Cited: 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 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9 Yebdoo v Holmewood [2021] NSWCA 119 Category: Principal judgment Parties: Jamie Thomas McDiarmid (Applicant) Rex (Respondent) Representation: Counsel: T Quilter (Applicant) S Lind (Respondent)