Tasmania v McDiarmid
[2023] TASSC 9
•15 May 2023
[2023] TASSC 9
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Tasmania v McDiarmid [2023] TASSC 9 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| McDIARMID, Jamie Ellis | |
| FILE NO: | 307/2019 |
| DELIVERED ON: | 15 May 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 1, 2 March 2023 |
| JUDGMENT OF: | Blow CJ |
| CATCHWORDS: |
Criminal Law – General matters – Criminal liability and capacity –Defence matters – Insanity and mental
impairment – Disease of the mind, mental disease or mental infirmity – Epilepsy.
Criminal Code (Tas), s 16(1).
R v Porter (1936) 55 CLR 182; R v Falconer (1990) 171 CLR 30; Williams v The Queen [1978] Tas SR 98;
Jeffrey v The Queen [1982] Tas R 199, followed.
Aust Dig Criminal Law [2048]
REPRESENTATION:
Counsel:
State: M Figg Accused: P Morgan
Solicitors:
State: Director of Public Prosecutions
| Judgment Number: | [2023] TASSC 9 |
| Number of paragraphs: | 39 |
Serial No 9/2023 File No 307/2019
STATE OF TASMANIA v JAMIE ELLIS McDIARMID
| REASONS FOR JUDGMENT | BLOW CJ 15 May 2023 |
1 Jamie Ellis McDiarmid ("the accused") has been indicted on a charge of creating a common nuisance, a charge of assault, and a charge of assaulting a police officer. On 4 November 2022 I made an order under s 361AA of the Criminal Code for him to be tried by a single judge instead of a jury. I conducted his trial on 1 and 2 March 2023. For the reasons stated below, I have decided that on each charge he will be acquitted on the ground of insanity.
2 The charges related to a series of incidents on 17 November 2018. The accused suffers from epilepsy. It was common ground at the trial that the acts to which the charges relate were done by the accused shortly after an epileptic seizure, and as a result of that seizure.
3 The Crown case can be summarised as follows. The accused had been cutting firewood with some friends, and was travelling in a vehicle along Molesworth Road, Glenlusk shortly before 7.25pm when the driver ran off the road. The driver and two other passengers left the scene on foot. Two volunteer firefighters, Neil Derrick and Ian Wade, arrived at the scene at about 7.25pm. Subsequently two police officers, Constable William Francis and First Class Constable Benjamin Reid, arrived at the scene. They spoke first to the two departing passengers and then to the accused. He was initially cooperative, but became increasingly argumentative, and eventually walked off in the direction of Glenlusk, carrying a chainsaw. The volunteer firefighters left the scene and drove along Molesworth Road towards Glenlusk. They came across about three small trees that were blocking the road. The accused had cut them down. The firefighters moved the trees and travelled about 300 metres further towards Glenlusk. There they saw the accused cutting into another tree with the chainsaw. He ran towards them with the chainsaw, which was running, and held it up in the air in a threatening and aggressive manner. They were still in their vehicle. The driver reversed and phoned the police. The accused ran back towards Glenlusk with the chainsaw. Two more police officers, Constable Christopher Lovell and First Class Constable Martin Scott, reached the area at about 8.20pm. They found the accused on Glenlusk Road. Constable Lovell, who was driving, stopped the police vehicle to speak to the accused, but he started the chainsaw, revved it, and ran towards the police car. He thrust the chainsaw in a stabbing motion towards the driver's window, damaging the metal support at the rear of the window. Constable Lovell accelerated forward, and the chainsaw bounced along the window, scratching it. The accused was arrested and taken to the Hobart Remand Centre. Police officers attempted to interview him at about 1.10am, but he vomited in the interview room, said he was feeling unwell, and said he needed a sleep. They did not proceed to interview him. Other officers conducted a video recorded interview commencing at 9.24am. He said that he had been in a car accident and was left on his own, that he could not remember anything else and thought he had had an epileptic attack, that he had a shocking headache, that he had recently been diagnosed with epilepsy, and that he had suffered from both blackouts and convulsive seizures.
4 Evidence as to those matters was given by First Class Constable Reid, Mr Derrick, and First Class Constable Scott, as well as Senior Constable Norquay, who participated in the 9.24am interview. None of their evidence as to those matters was challenged or contradicted. I find that the facts as to the relevant events were as outlined above.
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Some basic principles
5 Section 383(6)(c) of the Criminal Code requires me to record in this judgment the principles of law applied by me when returning the verdicts in this case. The basic principles applied by me are as follows:
•
An accused person is presumed to be innocent unless and until the tribunal of fact finds that person guilty. When there is no jury, the judge is the tribunal of fact.
• The Crown bears the burden of proving an accused person's guilt. •
If the tribunal of fact is not satisfied beyond reasonable doubt of the accused person's guilt, that person must be found not guilty.
•
No person is criminally responsible for an act unless it is voluntary and intentional: Criminal Code, s 13(1).
•
"Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved": Criminal Code, s 15.
•
A person is not criminally responsible for an act done by him when afflicted with mental disease to such an extent as to render him incapable of understanding the physical character of such act: Criminal Code, s 16(1)(a)(i).
•
A person is not criminally responsible for an act done by him when afflicted by mental disease to such an extent as to render him incapable of knowing that such act was one which he ought not to do: Criminal Code, s 16(1)(a)(ii).
•
A person is not criminally responsible for an act done by him when such act was done under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist: Criminal Code, s 16(1)(b).
•
When insanity is raised as a defence, the accused person bears the onus of proving, on the balance of probabilities, that he or she was not criminally responsible for an act done by him by virtue of one or more provisions of s 16(1) of the Criminal Code.
•
The defence of insanity may be established by evidence adduced by the prosecution: Criminal Code, s 381(3).
•
If an accused person is acquitted on the ground of insanity the verdict is to be that "The accused committed the act charged, but is not guilty, on the ground that he was insane at the time so as not to be responsible according to law": Criminal Code, s 383(2).
Count 1 – Creating a nuisance
6 Section 141(1) of the Criminal Code provides as follows:
"(1) A person who commits any common nuisance which endangers the lives, safety, or health of the public, or which occasions injury to the person of any individual, is guilty of a crime.
Charge: Creating a nuisance."
7 Count 1 on the indictment alleges that the accused created a nuisance, contrary to s 141(1), in that he, "at Glenlusk in Tasmania, on or about the 17th day of November 2018, created a common
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nuisance by partially cutting trees next to Molesworth Road, which endangered the lives and/or
safety of the public."8 Section 140(1) of the Criminal Code defines "common nuisance". That sub-section reads as
follows:
"(1) A common nuisance is an unlawful act or an omission to discharge a legal duty, such act or omission being one which endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all His Majesty's subjects."
9 Mr Derrick gave evidence to the following effect. After he and Mr Wade left the scene of the accident they were travelling back towards Glenlusk when they found small trees blocking the road. They appeared to have been cut with a chainsaw. They moved them off the road. They travelled on and saw a person cutting into a much larger tree beside the road. He approached them with the chainsaw running. Mr Derrick put the vehicle into reverse and reversed away. Subsequently at that place he met some police officers. He showed them two trees at that place that had nearly been cut through.
10 Constable Scott gave evidence that he saw those trees and notified the local council. The road was closed until the following day.
11 It was an agreed fact that one of those trees fell across the road at about 8am the next day, bringing down power lines. The evidence concerning the partially cut trees was unchallenged and uncontradicted. On the basis of that evidence I find that the accused cut into those trees. I also find that the safety of the public was endangered by him cutting into those trees since they could have fallen onto anyone travelling along Molesworth Road, causing injury or even death. On that basis I am satisfied beyond reasonable doubt that the accused created a common nuisance contrary to s 141(1) of the Criminal Code at Glenlusk in Tasmania on 17 November 2018 by partially cutting two trees next to Molesworth Road, thereby endangering the lives and safety of the public.
Count 2 – Assault
| 12 | Section 184 of the Criminal Code provides as follows: "Any person who unlawfully assaults another is guilty of a crime. Charge: Assault." |
13 Section 182 of the Criminal Code defines "assault". That section reads as follows:
"(1) An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening by any gesture to apply such force to the person of another if the person making the attempt or threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; or the act of depriving another of his liberty.
(2) Words alone cannot constitute an assault."
14 Count 2 on the indictment alleges that the accused committed the crime of assault, contrary to s 184, in that he, "at Glenlusk in Tasmania, on or about the 17th day of November 2018, unlawfully assaulted Neil James Derrick by starting a chainsaw and running towards him whilst holding the chainsaw above his head."
15 Mr Derrick gave evidence that he was driving a fire truck, and that he stopped when he saw the accused cutting into a tree. He said that the accused started the chainsaw, started running towards him and his companion with the chainsaw, and held it up as if he was going to cut forwards. His
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evidence was neither challenged nor contradicted. When cross-examined, he accepted that the
accused probably got to a point ten metres away from him.16 On the basis of that evidence, I am satisfied beyond reasonable doubt of the following things:
•
By starting the chainsaw, holding it up, and running towards the fire truck, the accused threatened, by means of a gesture, to apply force to the body of Mr Derrick, using the chainsaw.
•
The accused had the ability to apply force to the body of Mr Derrick using the chainsaw, and caused Mr Derrick to believe on reasonable grounds that he had that ability.
• He committed an assault by making that threatening gesture towards Mr Derrick. • That assault was not lawful. •
The accused unlawfully assaulted Mr Derrick at Glenlusk on 17 November 2018 by starting the chainsaw, and running towards him whilst holding the chainsaw in the air.
Count 3 – Assaulting a police officer
17 Section 114(1) of the Criminal Code provides as follows:
"(1) Any person who assaults, resists, or wilfully obstructs any police officer in the due execution of his duty, or any other person lawfully assisting him therein, is guilty of a crime.
Charge: Assaulting [or obstructing] a police officer."
18 Count 3 on the indictment alleges that the accused assaulted a police officer, contrary to s 114(1), in that he, "at Glenlusk in Tasmania, on or about the 17th day of November 2018, unlawfully assaulted Constable Christopher Andrew Lovell, a police officer acting in the due execution of his duty, by waving an operating chainsaw in the direction of the said Constable Christopher Andrew Lovell and striking the driver's side door of the police vehicle in where [sic] the said Officer was seated."
19 First Class Constable Scott gave evidence to the following effect. On 17 November 2018 he travelled to Molesworth Road in a police vehicle with Constable Christopher Lovell. Constable Lovell was driving. He was in the front passenger seat. They were asked to search for a male who had left the scene of an accident on foot carrying a chainsaw. At about 8.20pm they located a man walking down Glenlusk Road carrying a chainsaw. Constable Lovell slowed down so as to pull up next to him. As they were starting to slow down the man started the chainsaw. As they were pulling up next to him he revved the chainsaw to high revs and then pushed it into the front of the police car in a darting or pushing motion. The chainsaw made contact with the driver's window on the door frame, and on the glass. Constable Lovell accelerated forwards to get away, causing the chainsaw to slide across the window. The man was arrested by other officers and subsequently identified to him as Jamie McDiarmid. That evidence was not challenged or contradicted.
20 Constable Lovell did not give evidence but a statutory declaration made by him on the day after the incident was tendered as an exhibit at the trial. The parties agreed that the contents of that statutory declaration were true and correct. The statutory declaration included the following:
"I pulled over on the right side of the Road within three metres of the male to speak with him. The chainsaw had no sheath on it at the time. The male then pulled the cord on the chainsaw and it immediately started and revved it hard before running at me and thrusting the saw in a stabbing motion directly at my driver window where my
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head and neck were. There was no pause he directly aimed at me as the saw hit the vehicle. The chainsaw was screaming from revving as it hit my driver side door frame next to my head causing sparks to fly and cutting into the metal before ricocheting off the window as I hit the accelerator to get way from the male.
The impact of the chainsaw hitting the vehicle was around an inch from the window next to my head and neck. I have no doubt that if the saw had hit the window instead of the metal frame the saw would have gone through the window and hit me to either the head or neck area of my body."
21 He went on to say that the male was Jamie Ellis McDiarmid.
22 On the basis of the oral evidence of First Class Constable Scott and the statutory declaration of Constable Lovell, I am satisfied beyond reasonable doubt of the following facts:
•
The accused waved an operating chainsaw in the direction of Constable Lovell, striking the driver's door and driver's side window of a police vehicle in which Constable Lovell was seated.
•
By those actions, the accused threatened by means of a gesture to apply force to the body of Constable Lovell, using the chainsaw.
• The accused had the ability to apply force to the body of Constable Lovell using the chainsaw. • He committed an assault by making that threatening gesture towards Constable Lovell. • That assault was not lawful. •
At the time of the assault Constable Lovell was a police officer and was acting in the due execution of his duty.
• The accused committed the act charged in count 3.
The psychiatric evidence
23 At the trial the Crown adduced expert evidence from an eminent Melbourne neurologist, Professor Mark Cook AO, and tendered two reports written by him about the accused. Professor Cook's expertise was undisputed. He had been provided with accurate and thorough information about the events of the day in question, and a transcript of the accused's police interview. He interviewed the accused and his girlfriend by telephone in 2021. He was provided with records from the Royal Hobart Hospital relating to an event in 2015 and reports by two psychiatrists who examined the accused following the November 2018 incident. He was satisfied that the accused suffered from epilepsy. He described his symptoms and treatment in his second report as follows:
"Seizures were recognised around 2015, and took two forms, with either a generalised tonic-clonic seizure (often described as 'grand mal' seizures, with symptoms often including loss of consciousness, stiffening, shaking, and tongue biting) or minor episodes that feature loss of contact, prominent chewing movements and purposeless movements of the hands (sometimes described as 'complex partial' or 'focal seizures with impaired awareness'). With this latter type of seizure, he often experiences a strange warning that he finds difficult to describe, perhaps a strong sense of familiarity (often described as an 'aura'). After either type of seizure he can become very confused, and has been noted previously to become agitated and to sometimes behave in a bizarre manner. This might go on for up to 30 minutes. He has been investigated at hospital with minor abnormalities found on an EEG and MRI, but no diagnostic abnormalities. He was placed on anti-seizure therapy and had been taking that regularly, but complete seizures control had not been achieved. This is quite a
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common situation in epilepsy of this type, where at least a third of sufferers are not
completely controlled with available medications."
24 In that report he offered opinions as to the events of the day in question as follows:
"I felt that the events described on 17 November 2018 seemed to me to be typical of the confused post-ictal state of someone who has just suffered a convulsive episode, often referred to as a post-ictal psychosis. This can occur after the major or minor events. The minor events can be quite subtle, and may not be appreciated by witnesses even familiar with the events. This would account for the description he provides in his interview with police quite well. His behaviour described following this with complex but purposeless activity that has no clear objective, cutting down the trees and attacking the police car with a chainsaw, would also fit very well with the observations made and described in the literature of altered behaviour in the period after a seizure has occurred. I didn't feel it was likely to represent a concussive episode, as although people are often confused after a concussion they infrequently exhibit such prolonged organised but purposeless behaviour. I felt it unlikely that intoxication due to alcohol would have been the cause given the relatively abrupt onset and offset to his behaviour. I noted post-ictal behaviour of the type described here is rare, but very significant and often disabling for the very small minority of patients for whom it is recurrent."
25 Later in that report he said the following as to the accused's capacity to understand the physical character of his acts, his capacity to know that such acts were ones that he ought not to do, and the question of whether he was overcome by an irresistible impulse:
"Firstly he was incapable of understanding the physical character of such an act or omission. It is quite typical in these instances of the patient is completely unaware of what has occurred during the events in question, and certainly would not have understood that he was operating the chainsaw in the manner that he did. Because the seizure discharge and its consequences disrupt the normal functioning of parts of the brain that govern reason and control, as well as comprehension and memory, we can certainly conclude that the intermittent mental disease that he suffers prevented him from knowing what his physical acts were. He certainly would not have been able to appreciate that his acts were 'wrong', as those reasoning abilities would not of [sic] been available to him in this post-ictal state. Typically these faculties recover over 30- 60 minutes but sometimes take hours and rarely days to recover. As the memory centres of the brain are involved in these processes typically they are unable to form a permanent recollection of events, and so are amnestic for the situation later. They are typically surprised and disbelieving when the events are described to them.
At the time he was operating the chainsaw, he would not of [sic] been purposely attempting to cause damage or threatened, but rather behaved in a confused and irrational manner according to the circumstances in which he found himself. In the situation for instance someone may have sufficient cognitive function to allow continue to [sic] operation of a piece of machinery such as a car (or a chainsaw in this instance), but without the ability beyond that to understand what their actions were, or what the consequences of them might be. If driving a car for instance they may collide with other vehicles or even pedestrians, with seeming got [sic] have any appreciation of the situation. People in this condition often respond to what they see as a threat by aggressive and sometimes violent acts, most often when attempts are made to restrain them in this state (as described at his earlier hospital presentation). This is supported as well by the evidence of the firefighters not being able to understand his confused 'yelling', and his amnesia for the events subsequently.
In my opinion we can regard the act was done under an impulse which by reason of mental disease he was unable to resist, as the disruption produced by the electrical discharge which constitutes the epileptic seizure is not something within his power to control. Similarly he is not able to control the consequences of the seizure with the confused and sometimes bizarre behaviour that follows. Only preventing the seizure from occurring will avoid this development. The condition is not one where 'anger' is produced as such, rather in the confused and irrational state of mind that individuals
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find themselves in after a seizure they have no control over their responses to circumstances around them, and often misinterpret the actions of those around in bizarre and unpredictable ways. He would certainly have not had any power to resist this."
26 Professor Cook's first report and his oral evidence were consistent with the passages that I have quoted from his second report.
27 In his oral evidence, Professor Cook gave the following explanation as to how epilepsy can result in seizures and subsequent abnormal behaviour:
"… epilepsy refers to a symptom rather than a single disease. Anything that disturbs the surface of the brain, such as a scar or injury, genetic fault or – or a congenital abnormality of some kind, that damages the structure of the surface of the brain or how it functions, can result in electrical malfunctions and these are – are displayed to the outside world as periods of altered behaviour or convulsive episodes. So the short circuit in the surface of the brain starts in one area but might spread. When it begins, it often produces an odd warning, typically something like déjà vu, although it varies according to where the development occurs and then if it spreads sufficiently far, it causes altered awareness. If it involves the whole brain, a generalised convulsion results. Most adults have what are called focal seizures, which are the episodes where they may or may not get a warning and then lose contact and behave in an abnormal manner for a few minutes. The brain takes some time to recover from this short circuit, during that period the patient is confused and sometimes engages in abnormal behaviour. That period of recovery may be many minutes and sometimes hours, rarely days."
28 There were no other expert witnesses at the trial. The evidence of Professor Cook was substantially unchallenged, unshaken, and uncontradicted. He was a particularly impressive witness and is obviously a leading expert in his field.
Mental disease?
29 There appears to be conflicting authorities as to whether courts should always regard epilepsy as a mental disease or as to whether, when an insanity defence is raised on the basis of an accused person suffering from epilepsy, the accused bears the burden of establishing on the balance of probabilities that his or her epilepsy amounts to a mental disease.
30 In the Queensland Court of Criminal Appeal, there are authorities suggesting that proof of epilepsy constitutes proof of a "mental disease", so that an automatism defence cannot be available: R v Foy [1960] Qd R 225 per Philp J at 238 and per Wanstall J (as he then was) at 246-247; R v Mursic [1980] Qd R 482 per Connolly J, with whom Douglas J and WB Campbell J agreed, at 488.
31 However the correct view is that the question whether an accused person's epilepsy constituted a mental disease is a question of fact which, at least in the absence of agreement, requires a finding of fact to be made in every case. It is clear from the judgments in Jeffrey v The Queen [1982] Tas R 199 that, at least in the absence of agreement, it is not proper for a trial judge to direct a jury that any particular condition constitutes a mental disease. See the judgments of Green CJ at 208-210, Nettlefold J at 225, and Cosgrove J at 237. When there is a trial by jury, and there is evidence of "mental disease" on which a jury could find a verdict of not guilty by reason of insanity, it is the duty of the trial judge to leave to the jury the questions of whether the accused was afflicted with mental disease and whether he or she was so afflicted as to be not guilty by reason of insanity.
32 It is well established that when there is evidence of mental disease resulting in ignorance of the physical character or wrongfulness of an accused person's acts, and the evidence at the trial suggests no other explanation for such ignorance, then a defence of automatism (that is, a defence that the accused person's physical acts were not voluntary and intentional) is not available: Bratty v
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Attorney-General for Northern Ireland [1963] AC 386; Williams v The Queen [1978] Tas SR 98
(Court of Criminal Appeal); R v Falconer (1990) 171 CLR 30.33 The Criminal Code does not contain a definition of "mental disease". That concept is the equivalent of the common law concept of a "disease of the mind" as referred to in the M'Naghten Rules in Re M'Naghten's Case (1843) 10 Cl & F 200 at 210, 8 ER 718 at 722:
"… jurors ought to be told that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong."
34 The common law concept of a "disease of the mind" was explained by Dixon J (as he then was) in R v Porter (1933) 55 CLR 182. In that case his Honour, in directing a jury, explained, at 189, that an insanity verdict was available if there was a "disease or disorder or disturbance of the mind" of the required character, and that such a condition existed when "the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder".
35 At 188 his Honour explained:
"Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self- control, and impulsiveness are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing."
36 In R v Falconer (above), which concerned the insanity provisions in Western Australia's Criminal Code, at 49 Mason CJ, Brennan and McHugh JJ observed that there was no reason to hold that the term "disease of the mind" in the M'Naghten Rules and the term "mental disease" in Western Australia's equivalent of our s 13 connoted different mental conditions. In this State, the Court of Criminal Appeal has proceeded in a number of cases on the basis that there is no such difference: Hitchens v The Queen [1962] Tas SR 35 at 49; Williams v The Queen (above); Jeffrey v The Queen (above).
37 Professor Cook's evidence was to the effect that the accused suffered an epileptic seizure on the day in question that resulted from an organic disturbance of the brain. That disturbance was the result of a medical condition of long standing that was affecting him intermittently. I am satisfied beyond reasonable doubt that the accused was suffering from epilepsy that constituted mental disease within the meaning of s 16.
Insanity verdicts
38 On the basis of the evidence of Professor Cook, I am satisfied on the balance of probabilities that, at the times to which the three charges relate, the accused, by reason of mental disease, was incapable of understanding the physical character of his acts, was incapable of knowing that his acts were ones which he ought not to do, and did those acts under an impulse which he was in substance deprived of any power to resist.
39 For these reasons, in relation to each of the three charges, my verdict is as follows:
The accused committed the act charged, but is not guilty, on the ground that he was insane at the time so as not to be responsible according to law.
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