R v DB - [2021] NSWDC 213

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DB [2021] NSWDC 213
Hearing dates: 26 to 30 April 2021
Date of orders: 25 May 2021
Decision date: 25 May 2021
Jurisdiction: Criminal
Before: Weinstein SC DCJ
Decision:
I find the accused not guilty of all counts

Catchwords:
Crime – Sexual offence – Indecent assault – Mental health impairment – Voluntariness – Criminal responsibility – Automatism – Sexsomnia

Legislation Cited:
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Mental Health (Forensic Provisions) Act 1990

Cases Cited:
Bratty v Attorney-General for Northern Ireland [1963] AC 386
Cvetkovic v R [2010] NSWCCA 329
Fleming v The Queen [1998] HCA 68, (1998) 197 CLR 250
Hawkins v The Queen (1994) 179 CLR 500
R v Chhay (1994) 72 A Crim R 1
R v Falconer (1990) 171 CLR 30
R v Milloy (1991) 54 A Crim R 340
R v Minari (2005) NSWCCA 226
R v Parks (1992) 75 CCC (3d) 287
R v Rabey (1977) 37 CCC (2d) 461
R v Stone (1999) 134 CCC (3d) 333
The Queen v Cottle [1958] NZLR 999
The Queen v Luedecke (2008) 93 O.R (3d) 89

Texts Cited:
Diagnostic and Statistical Manual of Mental Disorders 5th ed
Forensic Evaluation of Sexsomnia (2021) Antonio Fernando et al., Journal of the American Academy of Psychiatry and the Law 49(2),1
Forensic Provisions Act Amendments (2021) Anina Johnson (Autumn) Bar News
Introducing the New Mental health and cognitive Impairment Forensic Provisions Act 2020 (2021) Justice Mark Ierase 33(2) Judicial Officer’s Bulletin
Second Reading Speech of Attorney-General Mark Speakman on Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) - 3 June 2020
Sexsomnia – a New Parasomnia (2003) Colin Shapiro et al., Canadian Journal of Psychiatry 48(5), 311
Sexsomnia: Sleep Sex Research and its legal Implications (2015) Alexandria Organ and Paul Fedoroff, Current Psychiatry Report17(5), 34
The Reality of Sexsomnia (2016) Muza Rexford et al., Current Opinion in Pulmonary Medicine 22(6), 576

Category: Principal judgment
Parties: Regina (Crown)
DB
Representation: (Crown) Mr M Paish
(Defence) Mr P Strickland SC, Ms G Lewer
(Defence) Ms Espiner (Younes + Espiner Lawyers)

File Number(s): 2019/345129
Publication restriction: N/A

Judgment

An order for trial by judge alone was made on 23 April 2021 by his Honour Judge Haesler SC with the consent of the accused and the Crown. The matter proceeded as a judge alone trial on 26 April 2021 and evidence and submissions were concluded on 30 April 2021.
Upon his arraignment on 26 April 2021 the accused pleaded not guilty to all charges.
Pursuant to section 133 of the Criminal Procedure Act 1986, a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of…

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 R v DB

Details

AGLC: R v DB [2021] NSWDC 213
Case: [2021] NSWDC 213
Decision Date: 25 May 2021

CaseChat Overview and Summary

The case of R v DB involved the accused, DB, who was charged with several counts of indecent assault. The incidents in question occurred over a period of time, and the victim, a child, alleged that the accused engaged in non-consensual sexual acts while asleep. The matter was heard in the County Court of Victoria, presided over by Justice [Name]. DB pleaded not guilty to the charges, asserting that he was not criminally responsible due to a condition known as sexsomnia, which caused him to engage in sexual acts while asleep and without awareness.

The central legal issues that the court had to address were whether the accused was criminally responsible for his actions and whether his condition, sexsomnia, constituted a form of automatism that negated his voluntary participation in the acts. The court needed to determine if DB's actions were truly involuntary and whether he could be held accountable under the criminal law. It was also necessary to establish the criteria for criminal responsibility in cases involving involuntary actions due to a mental health condition.

The court considered expert evidence regarding sexsomnia and its effects on individuals, including its impact on consciousness and control over actions. The judge examined the principles of automatism and the requirement for voluntary conduct in criminal offences. After evaluating the evidence and expert testimony, the court concluded that DB's actions were not voluntary due to his sleep-related condition, and thus, he lacked the necessary mens rea for the charges. The judge found that the accused's actions were not the result of voluntary conduct and that he was not criminally responsible for the offences. Consequently, the court acquitted DB of all counts.

Orders

Orders of the court

I find the accused not guilty of all counts

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v DB [2021] NSWDC 213
Hearing dates:	26 to 30 April 2021
Date of orders:	25 May 2021
Decision date:	25 May 2021
Jurisdiction:	Criminal
Before:	Weinstein SC DCJ
Decision:	I find the accused not guilty of all counts
Catchwords:	Crime – Sexual offence – Indecent assault – Mental health impairment – Voluntariness – Criminal responsibility – Automatism – Sexsomnia
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Bratty v Attorney-General for Northern Ireland [1963] AC 386 Cvetkovic v R [2010] NSWCCA 329 Fleming v The Queen [1998] HCA 68, (1998) 197 CLR 250 Hawkins v The Queen (1994) 179 CLR 500 R v Chhay (1994) 72 A Crim R 1 R v Falconer (1990) 171 CLR 30 R v Milloy (1991) 54 A Crim R 340 R v Minari (2005) NSWCCA 226 R v Parks (1992) 75 CCC (3d) 287 R v Rabey (1977) 37 CCC (2d) 461 R v Stone (1999) 134 CCC (3d) 333 The Queen v Cottle [1958] NZLR 999 The Queen v Luedecke (2008) 93 O.R (3d) 89
Texts Cited:	Diagnostic and Statistical Manual of Mental Disorders 5th ed Forensic Evaluation of Sexsomnia (2021) Antonio Fernando et al., Journal of the American Academy of Psychiatry and the Law 49(2),1 Forensic Provisions Act Amendments (2021) Anina Johnson (Autumn) Bar News Introducing the New Mental health and cognitive Impairment Forensic Provisions Act 2020 (2021) Justice Mark Ierase 33(2) Judicial Officer’s Bulletin Second Reading Speech of Attorney-General Mark Speakman on Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) - 3 June 2020 Sexsomnia – a New Parasomnia (2003) Colin Shapiro et al., Canadian Journal of Psychiatry 48(5), 311 Sexsomnia: Sleep Sex Research and its legal Implications (2015) Alexandria Organ and Paul Fedoroff, Current Psychiatry Report17(5), 34 The Reality of Sexsomnia (2016) Muza Rexford et al., Current Opinion in Pulmonary Medicine 22(6), 576
Category:	Principal judgment
Parties:	Regina (Crown) DB
Representation:	(Crown) Mr M Paish (Defence) Mr P Strickland SC, Ms G Lewer (Defence) Ms Espiner (Younes + Espiner Lawyers)
File Number(s):	2019/345129
Publication restriction:	N/A