Tasmania v McDiarmid - [2023] TASSC 9

[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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tasmania v McDiarmid

Details

AGLC: Tasmania v McDiarmid [2023] TASSC 9
Case: [2023] TASSC 9
Decision Date: 15 May 2023

CaseChat Overview and Summary

In the case of Tasmania v McDiarmid, the defendant was charged with assaulting his wife, which he claimed was due to an epileptic episode. The nature of the dispute was whether the defendant's epilepsy constituted a "disease of the mind" under the Criminal Code, thereby potentially excusing his criminal liability on the grounds of insanity. The Supreme Court of Tasmania was tasked with determining the applicability of the defence of insanity in this context.

The primary legal issue before the court was the interpretation of the term "disease of the mind" as it pertains to criminal liability and capacity, particularly in relation to whether epilepsy qualifies as such a disease. The court needed to examine whether an epileptic episode, which results in a temporary loss of control, can be considered a disease of the mind that could excuse criminal responsibility.

The court concluded that an epileptic episode, while a medical condition, does not necessarily equate to a "disease of the mind" within the meaning of the statute. The court emphasised that the term should be interpreted in a way that aligns with ordinary language and the intent of the legislature. It held that for epilepsy to exempt a defendant from criminal responsibility, it must be shown that the condition had a significant impact on the defendant's mental faculties at the time of the offence, rather than merely being a transient episode. The court found that the defendant's evidence did not sufficiently establish such a significant impact, thus the defence of insanity was not applicable in this instance.

The court's decision resulted in the defendant being held criminally liable for the assault, with the verdict reflecting a nuanced understanding of the interplay between medical conditions and criminal responsibility. The final orders confirmed the defendant's conviction and the imposition of a sentence, affirming that epilepsy alone, without a demonstrated substantial impact on mental faculties, does not absolve criminal liability.

Orders