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 a jury. The judgment of the court in such a case must include the principles of law and the findings of fact on which I rely.

The Charges

The accused DB, who is the father of the complainant, is charged with three offences. The counts on the indictment are as follows:-

That on 30 June 2019, at Camden in the State of New South Wales, the accused had sexual intercourse with CB, a child then under the age of 10 years, namely, nine years, contrary to s66A(1) of the Crimes Act 1900; and

That on or about 2 November 2019, at Wollongong in the State of New South Wales, the accused had sexual intercourse with CB, a child then under the age of 10 years, namely, nine years, contrary to s66A(1) of the Crimes Act 1900; and

That on or about 2 November 2019, at Wollongong in the State of New South Wales, the accused intentionally sexually touched CB, a child then under the age of 10 years, namely, nine years, contrary to s66DA(a) of the Crimes Act 1900.

There are statutory alternatives to counts 1 and 2.
The alternatives to counts 1 and 2 are as follows:

That on or about 30 June 2019, at Camden in the State of New South Wales, the accused intentionally sexually touched CB, a child then under the age of 10 years, namely, nine years, contrary to s66DA(a) of the Crimes Act 1900.

That on or about 2 November 2019, at Wollongong in the State of New South Wales, the accused intentionally sexually touched CB, a child then under the age of 10 years, namely, nine years, contrary to s66DA(a) of the Crimes Act 1900.

For the purpose of considering the elements which the Crown must prove in the context of this case, a document was agreed between Mr Paish on behalf of the Crown and Mr Strickland SC on behalf of the accused. A copy of that document is found at Annexure “A” of this judgment. Each element must be proved to the criminal standard of beyond reasonable doubt.
The elements of the first count are as follows:-
Count 1: That on 30 June 2019 at Camden in NSW,

The accused had sexual intercourse with CB;

The sexual intercourse was a voluntary act; and

CB was aged under 10 years of age.

“Sexual intercourse” means sexual connection occasioned by the penetration to any extent of the genitalia of a female person by any part of the body of another person: section 61HA of the Crimes Act.
If the Crown fails to prove beyond reasonable doubt that sexual intercourse as defined by s61HA of the Crimes Act occurred, then the elements that the Crown must prove for the alternative to count 1 are that:
Alternative to count 1: That on 30 June 2019 at Camden in NSW,

The accused intentionally touched CB’s body with a part of his body;

A reasonable person would consider the touching to be sexual (s61HB of the Crimes Act);

The touching was a voluntary act; and

CB was aged under 10 years of age.

If the Crown, either on count 1 or the alternative to count 1, fails only to prove that the physical act of the accused was voluntary and establishes instead that, on the balance of probabilities, the accused had a mental health impairment as defined in s28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the MHCIFP Act), a special verdict of “act proven but not criminally responsible” must be entered.
If the Crown, either on count 1 or the alternative to count 1, fails to prove that the physical act of the accused was voluntary but also fails to establish that, on the balance of probabilities, the accused had a mental health impairment, the accused must be acquitted.
As will shortly be seen, the Crown accepts that the acts, the subject of the indictment, were involuntary and the defence concedes that a reasonable person would consider the touching to be sexual. The two issues that require resolution are whether or not there was an act of penetration, and whether or not at the time of the act, the accused had a mental health impairment.
The elements of the second offence are as follows:-
Count 2: That on or about 2 November 2019 at Wollongong in NSW,

The accused had sexual intercourse with CB;

The sexual intercourse was a voluntary act; and

CB was aged under 10 years of age.

“Sexual intercourse” means sexual connection occasioned by the penetration to any extent of the genitalia of a female person by any part of the body of another person: section 61HA of the Crimes Act.
If the Crown fails to prove beyond reasonable doubt that sexual intercourse as defined by s61HA of the Crimes Act occurred, then the elements that the Crown must prove for count 2 are that:
Alternative to count 2: That on or about 2 November 2019 at Wollongong in NSW,

The accused intentionally touched CB’s body with a part of his body;

A reasonable person would consider the touching to be sexual (s61HB of the Crimes Act);

The touching was a voluntary act; and

CB was aged under 10 years of age.

If the Crown, either on count 2 or the alternative to count 2, fails only to prove that the physical act of the accused was voluntary and establishes instead that, on the balance of probabilities, the accused had a mental health impairment as defined in s28 of the MHCIFP Act, a special verdict of “act proven but not criminally responsible” must be entered.
If the Crown, either on count 2 or the alternative to count 2, fails to prove that the physical act of the accused was voluntary but also fails to establish that, on the balance of probabilities, the accused had a mental health impairment, he must be acquitted.
The elements of the third offence are as follows:-
Count 3: That on or about 2 November 2019 at Wollongong in NSW,

The accused intentionally touched CB’s body with a part of his body;

A reasonable person would consider the touching to be sexual (s61HB of the Crimes Act);

The touching was a voluntary act; and

CB was aged under 10 years of age.

If the Crown fails only to prove that the physical act of the accused was voluntary and establishes instead that, on the balance of probabilities, the accused had a mental health impairment as defined in s28 of the MHCIFP Act, a special verdict of “act proven but not criminally responsible” must be entered.
If the Crown fails to prove that the physical act of the accused was voluntary but also fails to establish that, on the balance of probabilities, the accused had a mental health impairment, the accused must be acquitted.
The Crown case with respect to count 1 relates to an incident which occurred on 30 June 2019 when the complainant (then aged 9) and the accused spent an evening and overnight at a home in Camden. That home belonged to a family who were longstanding friends of the accused. The Crown case is that the complainant and the accused were sharing a queen size bed in a spare room at that home when, at some point during the night, the accused sexually touched the complainant by inserting his fingers in her vagina. The sleeping arrangement was organised by the adult friends of the accused.
With respect to counts 2 and 3, the Crown case is that the complainant (then aged 9) was staying overnight at the accused’s apartment in Wollongong (he having recently separated from the complainant’s mother). The Crown case is that sometime during the night, the complainant, who was sleeping alone in her bedroom, was woken by noise of people talking loudly on the street. She became frightened and went to the accused’s bedroom where he was sleeping alone in his bed. The complainant woke her father and asked him if she could stay in his bed because she was scared. The accused said yes. The Crown case is that shortly thereafter, the accused touched the complainant’s genitals and digitally penetrated her. The accused then touched the complainant’s breast. The complainant, who was shocked by her father’s actions, pretended to go to the bathroom, left the accused’s bedroom and ultimately went back to sleep in her own bedroom.
The accused pleaded not guilty to all three counts, on the basis that his acts were involuntary. His case is that the acts were caused by sexsomnia, a parasomnia akin to sleepwalking, and which he contends is not a mental health impairment for the purposes of the MHCIFP Act.
I note at the outset that I am grateful to Mr Paish who appeared on behalf the Crown, and to Mr Strickland SC and Ms Lewer who appeared on behalf of the accused for the collaborative way in which they conducted these difficult proceedings, and for their extensive and thoughtful submissions.

General Principles

The judgment of the court in this case must include the principles of law that I apply, and the findings on fact on which I rely. In Fleming v The Queen [1998] HCA 68, (1998) 197 CLR 250 the High Court stated that it is necessary for a judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and ultimately the verdict that it has reached in a judge alone trial.
I am also required, as the trial judge in a judge alone trial, to take into account any warning, direction or comment in considering my verdict that any law would require to be given or made to a jury in such circumstances. There are general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law.

Onus and Standard of Proof

As this is a criminal trial, the burden of proof of the guilt of the accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element or essential fact that makes up the offences with which the accused has been charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute. It is not for an accused to prove his innocence, but for the Crown to establish his guilt. A person charged with a criminal offence is presumed to be innocent unless and until the Crown persuades a jury, or a judge sitting as the tribunal of fact, that the person is guilty beyond reasonable doubt.
The Crown must prove the accused’s guilt beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before I can convict the accused. Furthermore, in this matter, the issue of voluntariness having been raised by the accused, the Crown must also prove beyond reasonable doubt that the acts alleged against the accused were voluntary.
In a criminal trial there is only one ultimate issue that the tribunal of fact has to decide. Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “yes”, the appropriate verdict is “guilty”. If the answer is “no”, the verdict must be “not guilty”.

Witnesses

In this case, the Crown case in relation to each charge is based entirely on the evidence of the complainant, subject to two other bodies of evidence being complaint evidence and expert evidence.
I remind myself that if a conclusion is reached on one of the charges that the Crown has not proven its case, and the reason is due to a doubt as to the honesty or accuracy of the complainant’s evidence, then I must consider whether that doubt affects a consideration of her honesty or accuracy with respect to the other charges. These common sense factors may impact on what someone might be able to remember about an event or how clearly they might remember it. What I have to decide in relation to the evidence of a particular witness, including the complainant, is whether I consider their evidence to be sufficiently reliable such that I can act upon it.
My function in deciding what evidence I accept as proved and what is not, involves making an assessment of the witnesses, including the complainant. In making an assessment of whether I accept evidence is established by a particular witness’s account, I need to bear in mind that what I am concerned with is not just the honesty of the witness, but the reliability of the witness. Of course, I may well decide not to rely on the evidence of a particular witness, including the complainant, if it appeared to me that the witness was not giving evidence honestly. However, I must also bear in mind that the evidence of a completely honest witness may not be reliable because of errors in observation, errors in the witness’s recall of events or a witness’s inability to accurately describe what it is he or she saw, heard or sensed. I bear in mind that I do not have to accept everything that a witness said or reject everything that a witness said. It is open to me to conclude that I would not accept a particular witness at all as to anything that witness said to me, but equally it is open to accept certain parts of what the witness said as reliable evidence that I can act upon, but I am not prepared to accept that witness about other parts of the evidence that he or she gave.
In making my assessment of witnesses I am not obliged to confine myself to looking at the evidence of a given witness in isolation. I am entitled to weigh all the evidence together in arriving at the factual determinations that I make.
I acknowledge that reliability depends upon two quite different but overlapping factors. One factor is the witness’s honesty and the other is the witness’s accuracy. There are many factors which can have a bearing upon a witness’s honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account. Did a particular witness impress me as someone doing their best to be truthful or did the witness impress me as someone deliberately trying to deceive me? Did the witness appear evasive or prone to exaggeration or embellishment? Did the witness demonstrate an ability to listen to the question and answer what was asked? Did the witness strike me as being objective and impartial or did the witness strike me as appearing to be colouring his or her evidence in some way?
Although demeanour and impression are matters that I am entitled to take into account, I must bear in mind that a witness may be affected by the stress and anxiety of giving evidence in legal proceedings. A witness might be anxious, worried or embarrassed. Demeanour and impression alone do not determine the honesty or accuracy of the witness’s evidence.
If I conclude that a particular witness has been doing his or her best to be honest, I would need to move to the second aspect of reliability which relates to a witness’s accuracy. A witness can be perfectly honest and accurate or perfectly honest, but completely or partly inaccurate. To determine how accurate a particular witness’s evidence is, I may look to a number of factors. How carefully did the witness observe the event or the matter about which they were giving evidence? Was the witness calm and composed at the time of the event, or affected by an emotion such as stress, panic or fear that might have impacted their powers of observation and/or the laying down of an accurate memory? Are there issues relating to drug dependency or mental illness? How important to the witness were surrounding details of an incident or event such that the witness focused on committing to his or her memory all aspects of the event, as opposed to what the witness perceived to be significant parts of the event? Has the witness provided a consistent account of the incident or event?
Judges do not have the ability to discern if a witness is telling the truth by only observing their demeanour. It is for that reason that courts are required to scrutinise evidence by comparison with other evidence in the way I have set out above.

AVL

The expert witnesses Dr Fernando and Dr Ellis gave evidence by audiovisual link which is standard procedure in such cases. I must not draw any inference against the accused or give their evidence any greater or lesser weight simply because their evidence was given in this manner. I must assess their evidence in the same way I assess the other witnesses’ evidence. If I consider the demeanour of these witnesses important, and I find it difficult to assess the person’s demeanour by reasons of the limitations of AVL, then that should rebound against the Crown rather than the accused.

Inferences

I come now to the question of inferences. If inferences are to be drawn from any part of the evidence, I should examine any possible inference to ensure that it is a justifiable inference, and I should not draw such an inference unless it is the only rational inference in the circumstances.
Part of my role involves drawing inferences from direct evidence. They are conclusions rationally drawn from a combination of proved facts. It is possible to draw inferences too quickly and to speculate. It is important that I do not rush to an inference too quickly and I must not speculate about matters. I must approach the evidence calmly, rationally and logically, applying my reasoning to it and considering the various possibilities as to the inferences that may properly be drawn from the evidence that I am satisfied has been established. I need to look carefully at the facts that I find established, and to consider cautiously the inference or inferences that I might draw from the particular facts with which I am concerned.

In some cases, a person’s acts may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and he or she deliberately does that act, I might readily conclude that he or she did that act with the intention of achieving that specific result.

Multiple Counts

I must give separate consideration to each of the counts on the indictment. Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on one or two counts and not guilty on one or two counts if there is a logical reason for that outcome.
If I find the accused not guilty of the offence charged on any count, particularly if that was because I had doubts about the reliability of the complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts.

Voluntariness/Automatism

In order for an accused to be convicted of a crime, his act (giving rise to the unlawful conduct) must be voluntary.
Where an act which is otherwise criminal is done in a state of automatism, that is without control or direction of the will of the accused over what is being done, then no crime is committed and the accused must be found “not guilty”. Here automatism raises itself for my consideration because of the evidence in the Crown case of Dr Fernando and Dr Ellis, which I deal with in some detail below.
The accused submits that he is suffering from sexsomnia and that his acts were involuntary as they occurred when he was asleep while he had no control over his behaviour. Sexsomnia is a parasomnic disorder which is diagnosed when an individual engages in sexual behaviour whilst asleep. It is a relatively new diagnosis, having only being recognised as such in the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association in 2013 (DSM-5) and has not been extensively researched. However, all existing studies (see below) concur in affirming that it is a state in which the individual has no volition and in which any action performed by the individual is therefore involuntary and beyond the individual’s control.
In the few cases which have involved established cases of sexsomnia, courts have accepted the involuntariness of sexsomnia, that is the accused had no control over his actions while experiencing an episode of sexsomnia. Indeed, in this case the Crown accepts, on the expert evidence that is before me tendered in its case, that at all material times the accused was suffering from sexsomnia and that his actions, the subject of the charges, were involuntary.
I note that although the defence initially raised this issue, this does not mean that it is the accused who bears the onus of proving that his act was done in a state of automatism. The defence having raised the issue, it is for the Crown to prove beyond reasonable doubt that all of the ingredients of the offences were present, and one of these is the requirement that the acts were voluntary.
It is therefore for the Crown to prove beyond reasonable doubt that the act of the accused was voluntary, that is, it is for the Crown to remove any reasonable doubt in my mind as to whether the accused was acting as an automaton, divested of the control and direction of his will over what he was doing.
Automatism in this case, as submitted by the accused, does not involve any question of a mental health impairment. He says that it is concerned with involuntariness alone, which does not derive from a mental health impairment. Here the accused diverges from the Crown. The Crown says that whilst the acts of the accused were involuntary, they are as a result of a mental health impairment.
To summarise, unless the Crown proves beyond reasonable doubt that the act of the accused was subject to the control and direction of his will, then the accused must be acquitted because no offence has been committed, subject to my consideration below of the relevant provisions of the MHCIFP Act.

Exhibits and Witnesses

The following exhibits (with their respective number) were tendered in evidence. All of the evidence save for exhibits 11, 19 and 20 were tendered in the Crown case:

Agreed facts pursuant to s191 of the Evidence Act 1995;

Expert report of Dr Fernando, sleep specialist and consultant psychiatrist dated 13 April 2021, with a letter of instruction dated 15 March 2021 and a CV;

Expert report of Dr Desai, respiratory and sleep physician dated 22 May 2020, with a with a letter of instruction dated 6 May 2020 and a CV;

Expert report of Dr Desai, respiratory and sleep physician dated 2 February 2021, with a letter of instruction dated 27 January 2021;

Sleep study report – St Luke’s Private Hospital dated 13 May 2020;

Expert report of Dr Ellis, forensic psychiatrist dated 2 April 2021, with a letter of instruction dated 26 March 2021 and a CV;

Recording of the complainant’s interview with police on 3 November 2019;

Two page letter written by the complainant, describing the two alleged incidents and given to her mother;

First diagram of the premises drawn by the complainant during her interview with police on 3 November 2019;

Second diagram of the premises drawn by the complainant during her interview with police on 3 November 2019;

Bundle of photographs;

Statement of AS made on 26 November 2019;

Photograph taken on 29 June 2019, the evening of the alleged first incident;

Diagram drawn by AS on 26 November 2019;

Statement of TF made on 4 November 2019;

Redacted statement of BB, the complainant’s mother, made on 5 November 2019;

Statement of LM made on 24 February 2020;

Article authored by Dr Fernando and others in February 2021;

Bundle of 3 academic articles on parasomnia and sexsomnia;

Extract from the DSM-5 – cautionary statement;

Statement of Detective Senior Constable Luke Rowles made on 6 January 2020;

Statement of Detective Sergeant Andres Campos made on 16 January 2020; and

Statement of Senior Constable Amanda Grochowski made on 3 December 2019.

The following witnesses gave evidence before me:-

The complainant CB;

AS, a friend of the complainant’s parents;

TF, a friend of the complainant’s father;

Dr Antonio Fernando;

Dr Andrew Ellis; and

The accused DB.

Agreed Facts

The following facts are not in dispute, and are contained in the Agreed Facts pursuant to section 191 of the Evidence Act exhibited in the proceedings:

DB (the accused) was born in 1977. He was 42 years old as at the dates on the indictment.

The accused was married to BB.

There are two children to the marriage: AB, born in 2008, and the complainant who was born in 2010.

The complainant was nine years of age as at the dates on the indictment (so that this element of the offences is not in dispute).

In January 2019, the accused and his wife were separated. As at the dates on the indictment, the accused and his wife were residing at separate addresses. There was a shared custody arrangement with the children spending time with both parents.

As at the dates on the indictment, the accused was residing in an apartment in Wollongong.

On 29 June 2019, the accused, the complainant and her sister attended a social gathering at a home in Camden. They stayed the night at that house.

On 1 November 2019, the complainant and her sister were staying with the accused at his house.

On 2 November 2019, the complainant and her sister returned to stay with their mother.

About 4:55pm on 3 November 2019, police attended the accused’s home and placed him under arrest. He was taken to Wollongong Police Station. The accused spoke to a solicitor who then attended the police station and met with him.

The accused participated in an electronically recorded interview in which he declined to answer questions on legal advice.

The accused was charged and granted bail.

The accused has no criminal history.

On 6 November 2019, AB was interviewed by police at the Wollongong Child Abuse Squad office and stated the following:

One night, her father, the complainant and herself had dinner and stayed over at her parents’ friends’ house in Camden. They visited as her father wanted to catch up with those friends.

Some other people were also present. However, she was not sure who they were.

The adults drank a couple of beers.

She slept in a bed with another child and the complainant slept in a spare bedroom with their father.

One Friday, she and the complainant were picked up by their father from a friend’s house.

Her father drove the complainant, herself and two of their friends to his unit in Wollongong to play with their pet bunny.

Her father picked up a friend from his house on the way home.

The complainant, the two friends and AB played at the unit. Their friends and their father’s friend stayed for dinner.

The two friends were picked up by their mother sometime between 6:30 and 7pm.

She and the complainant then watched ‘Modern Family’ and were then tucked into bed by their father in their separate bedrooms at about 8pm.

Her father and his friend watched sport on the television as well as on an iPad and each drank around two beers each.

The next morning her father took the complainant to tennis and later returned to pick her up. Her father stopped at her mother’s place of work to pick up her ballet clothes. Her father then dropped her off to ballet.

Her father picked her up from ballet at 2:25pm and the complainant was in the car. They were then dropped off at their mother’s place of work at about 2:40pm.

At the mother’s place of work she had her hair washed and the complainant was on her iPad.

That night she went to a family dinner at a pizza restaurant which is located across the road from the hair salon.

After dinner she returned to her mother’s apartment with the complainant, her mother and her mother’s boyfriend. They all watched a movie. However during the movie the complainant left the room to speak to their mother.

The complainant and her mother returned just as the movie finished and they all played a board game. When the game was over, she and the complainant went to bed.

Evidence by recording

The law provides that children may give evidence in a certain way. The complainant’s evidence in chief was recorded in the JIRT interview.
This is standard procedure for children in such cases. I will not draw any inference against the accused or give the evidence any greater or lesser weight simply because it was given in this manner. I assess the complainant’s evidence in the same way as I would assess the evidence of any other witness.

Remote witness room

The complainant in this case gave further evidence by CCTV in a remote witness room. This is also standard procedure in cases of this type. I do not draw any inference against the accused or give the evidence any greater or lesser weight simply because it was given in this manner. I assess this evidence in the same way as I assess the evidence of any other witness in the case.

Support person

There was a person sitting beside the complainant when she gave evidence in the remote witness room. It is standard procedure for a child, when giving evidence, to be accompanied by a person of their choice. I do not draw any inference against the accused or give the evidence any greater or lesser weight simply because of the presence of this other person.

The complainant’s evidence

The complainant’s evidence in chief was given by way of JIRT interview with police on 3 November 2019.
In the JIRT interview, the complainant first spoke about the events relating to counts 2 and 3. She explained that on 1 November 2019 both she and her sister went to bed, each in their own bedroom, at around 8:30pm and that the accused stayed up as he was watching the football with his friend. The complainant said that her father and his friend were drinking alcohol which she believed to be beer.
The complainant said that during the night, she woke up to weird voices of people coming from the street. She got scared and decided to go and stay in her father’s bed. He father was asleep in his bedroom. She asked him if she could sleep with him, to which he said yes. At this time, the complainant was wearing a nightie and underwear and the accused was wearing underwear.
The complainant said that once she was in the accused’s bed she tried to go back to sleep. She said that she could not, because the accused started touching her on her private parts with his hands. In answer to a question as to whether she was touched on the outside or inside the vagina or something else, she answered “both”. She thought it went on for about 10 minutes.
The complainant drew a diagram of her father’s bedroom at the date of the second incident (exhibit 9). (Another diagram indicated her position and that of her father’s during the first incident (exhibit 10)). She explained that as the accused was touching her genitals, he asked her in his sleep to “put her leg away” which she would not do and instead said “no” to him in a strong voice. The accused then moved his hands away from her genitals towards her breasts which he touched. He mumbled a few words, including the word “pussy” and then became still and silent again. He ended up snoring.
The complainant said to her father that she needed to go to the bathroom and he replied “ok”. She then left the room and went to the bathroom adjacent to her bedroom. She said that she was very distressed at the thought of what had just happened and that it reminded her that it had happened once before. After that, she went to her sister’s bedroom and tried to wake her up but could not. She ultimately went back to her own bedroom and fell asleep.
The following morning in the car on their way to a tennis lesson, the complainant said that the accused asked her if something was wrong. The complainant replied that nothing was wrong, but the accused kept insisting. The complainant finally told the accused that he would not understand but that her mother would get it, and once she came back to the accused’s home, the complainant wrote a note to her mother explaining what had happened (exhibit 8).
The complainant also gave evidence that on the way back from her tennis lesson, the accused asked the complainant if she had come to his bedroom the previous night. The complainant answered no, but the accused looked at her in a way that made her feel that he thought that she had.
The complainant said that the accused saw that she was writing something and enquired as to what it was. She answered that it was for her diary.
In the afternoon, the accused dropped the complainant and her sister at their mother’s place of work salon. The complainant told her mother that she had written a note that she wanted to show her. The complainant said her mother offered to read the note later with her, which they did. After that, the complainant said her mother asked her to talk about what had happened a bit more.
The complainant also gave evidence about the incident that occurred in June 2019 and that gives rise to the charge in count 1.
The complainant remembered spending the evening and the night at the house in Camden with her father and sister. Her sister shared a bed with the daughter of her father’s friends while the complainant went to a bedroom by herself, knowing that she would share the bed with her father when he came to sleep.
The complainant said that her father must have been drinking, because when he came to bed, his breath smelled of a mix of alcohol and garlic.
The complainant said that she did not know how long her father had been asleep, but when she woke up he was touching her on the vagina. She felt uncomfortable and scared. She said that the accused did not say anything, that she did not see his face but that he was snoring and breathing very deeply and that he could have been asleep. She said that he touched her directly on the skin, and in answer to the question whether he put his hand inside her vagina, the complainant said yes. She thought that this event might have gone on for an hour.
The complainant said she did not know what made him stop. She recalled him going to the bathroom and coming back to bed sometime after the incident when she grabbed a pillow to cover her private parts. She said she must have fallen asleep after that.
The complainant told police that this was the first time that she had ever talked about this event. She had referred to it in her note to her mother, but her mother did not ask her about this first time, only about the events which took place on 2 November 2019.
The complainant was cross-examined during the trial on 27 April 2021, about 18 months after the second incident. The complainant was shown a number of photographs of her childhood (exhibit 11) and she agreed that she had many good and fun memories of times spent with her father prior to the incidents.
On 2 November 2019, the morning after the second incident, the complainant said she remembered the accused asking her if anything was wrong and that she answered that she could not tell him about it. She also remembered that her father then suggested to her in a general sense to talk to her mother about it but she could not remember him mentioning to her that she could write it down.
The complainant gave evidence that she recalled that the accused had touched her with one hand rather than with his hands, contrary to what she had previously told police in the JIRT interview. She could not remember the questions her mother asked her after reading her note or the answers she gave her.
When asked by Mr Strickland if she could remember now (at trial) whether the accused put his hand inside her vagina on either occasion, the complainant said that she was not sure.
In my opinion, the complainant did her best to give her evidence as accurately as possible. She was a very impressive young woman who clearly was doing her best to tell the truth in tragic and challenging circumstances. I do not doubt her honesty. As I have already indicated, if I accept her evidence given in the JIRT interview, sexual intercourse will have been made out for the purposes of counts 1 and 2. However, I have a reasonable doubt about the reliability of the complainant’s evidence of penetration, for reasons I will shortly come to and which have nothing to do with the complainant’s honesty.

Accused – DB declined to participate in Interview

DB declined to participate in a police interview. He chose not to answer questions put to him by the police at the time of his arrest. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police.
In this case, it would be wrong if the accused, having decided to exercise his right to silence, later found that I was using that fact against him. It is important, therefore, that I bear in mind that the accused’s silence cannot be used against him in any way at all. The fact that he chose to remain silent cannot be used against him. Under our law, an accused person has a right to silence.

Accused – DB gave evidence

DB gave evidence in this trial on oath. He was not obliged to do so. He could have said nothing at all. He chose to give evidence and thereby to expose himself to cross-examination. His choice to do that does not, of course, mean that the evidence that he gave was necessarily true. His evidence falls into the same category as the evidence of any other witness in this case and I must assess it in exactly the same way. By going into the witness box, DB made himself a witness like any other witness, and exactly the same principles then apply as I evaluate his evidence. The same considerations relating to his truthfulness and to the reliability of his evidence apply. By taking the course that he did, DB in no way altered the fundamental principle concerning where the onus of proof lies. It is not for the accused, DB, to satisfy me of his innocence. It is for the Crown to satisfy me of his guilt beyond reasonable doubt of the charges he faces.

At the time of the alleged offending, the accused was the school principal at a primary school. He received an appraisal report completed on 20 August 2019 (exhibit 24), confirming that he was highly regarded by staff and parents.
In evidence, the accused said that he had received extensive training about appropriate boundaries with children and issues relating to the physical and sexual abuse of children. He read and prepared policies on those subjects and treated any issues arising with respect to the sexual abuse of children with the utmost seriousness. He was not challenged on this evidence, which I accept.
The accused said that after separating from his wife in early 2019, his two daughters stayed with him approximately every second week as part of an informal parenting arrangement.
DB gave extensive evidence about his relationship with his children, and in particular with the complainant. He stated that he had always been very actively involved in the children’s lives and portrayed himself as involved in every aspect of their lives. After separating from his wife, when his daughters were in his care, the accused would perform all tasks required to ensure that the girls were well looked after. He cooked, cleaned, washed, assisted with homework, and took them to their various extra-curricular activities. He also took them on holiday twice in 2019, once to Northern New South Wales where they visited theme parks and spent time at the beach, and once to Queensland where his parents reside during the winter months.
The accused said that he had a “beautiful” relationship with the complainant, who was, “like [his] little shadow”. She would spend a lot of time with him and the accused stated that “he got her”, meaning that he could relate to and understand her. He expressed his sorrow for the consequences that the separation has had on his children, and on the complainant in particular.
The accused also gave evidence about his sexsomnia. He told the court that his former wife had told him that at times he had sexually touched her during his sleep, but that he would have no recollection of it in the morning. He recalled that his wife used to joke with friends about the fact that the accused was so fond of her that he desired her even whilst he was asleep. His subsequent partner also told him that he had touched her sexually during his sleep, and he recalled one occasion when he could not remember how sex was initiated with her because he must have been asleep at the time of initiation. His current partner informed him that one night he started touching her sexually with his hand, but that not long after his hand went limp and he stopped. The accused said he had no recollection of this event.
The accused acknowledged that he often would have been drinking alcohol in the evening, but at other times he recalled feeling stressed, anxious, and/or sleep-deprived before the occurrence of his sexsomnia.
With respect to the first incident the subject of count 1, the accused accepted that on the night of 29 June 2019, while at his friends’ home in Camden, he drank a six pack of 300ml beer and a glass and a half of red wine. He knew that he would be sleeping in a bed with the complainant, which arrangement had been organised by his friends due to a shortage of individual beds. He recalled the complainant going to sleep at about 8.30 pm and that he went to sleep at about 11:30 pm, when the complainant was already asleep. He could not recall saying any words to the complainant during the night, or hearing her getting out of bed at any point, or touching her in a sexual manner. When he was asked if he ever touched the complainant in a sexual manner to obtain sexual gratification, the accused categorically denied having ever done so. When asked if he had ever thought that he could touch his daughter sexually during an episode of sexsomnia, he answered that doing something like that to his daughter or any child had never crossed his mind.
Until his arrest on 3 November 2019, the accused had never heard the complainant mention what had happened on the night of 29 June 2019, and was unaware that it had occurred.
With respect to the second and third incidents the subject of counts 2 and 3 on the indictment, on the night of 2 November 2019 the accused said that he had a few drinks with his friend at his apartment, whilst his daughters were staying with him. He felt mildly intoxicated when he went to sleep in his bedroom. At that time, the complainant was asleep in her own bedroom.
The accused could not recall the complainant coming to his bedroom during the night and asking if she could sleep in his bed. Neither did he recall saying anything to her, nor touching her genitals and her breast.
On the following day, the accused recalled that he thought the complainant looked sad and he had a conversation with her, saying words to the effect of “what’s wrong? Is there something wrong?” She answered yes, but refused to explain any further. The accused said that he suggested to the complainant that she could talk to her mother about it, or that she could write about it in her diary.
The accused said that he thought that the complainant might have had some social problems at school or that she was starting puberty and was uneasy about a few pimples that had appeared on her face.
On 3 November 2019, when the accused was arrested, he said that he was stunned to hear about the offences reported by the complainant.
The accused said that he has talked extensively with his family about these events. He had been seeing a psychologist prior to these events but since the incidents, he has entered into a mental health plan with her with a focus on his sleep issues. Since his arrest, the accused has read extensively on the subject of parasomnia, and sexsomnia in particular, and he has now an evolving understanding and insight into his sexsomnia. He said that he is committed to ensuring that such an incident never occurs again and that the events the subject of these proceedings are his greatest regrets.
In cross-examination, the accused confirmed that he had discussed with his general practitioner and his psychologist the possibility of seeing a sleep therapist, but he acknowledged that he has yet to make an appointment. The accused also acknowledged that he breached his bail conditions by consuming alcohol after his arrest on a number of occasions.
The accused spoke lovingly of the complainant and said that he did not doubt that she was telling the truth.
DB is entitled to rely on what he said in evidence and asks me to take it into consideration with the other evidence called by the Crown.
In my opinion, the accused was candid in his evidence. I accept that he was a trusted and valued employee and a loving father. I accept that he has no paedophilic tendencies. I accept too, that he has no memory of the events the subject of these proceedings which I find took place whilst he was asleep.

Good character

In exhibit 1 is an agreed fact that DB does not have any criminal history. This evidence of good character is not challenged by the Crown.
Furthermore, two witnesses gave evidence about DB’s character.
One friend has known the accused for about 20 years, and they have children of similar age. Over the years that friend has socialised with the accused and his ex-wife on many occasions. They have been on holidays together on approximately 6 occasions and have usually stayed in the same accomodation. This friend said that she considered the accused to be a very honest person and that she could not recall any time when the accused had lied, concealed the truth or been dishonest. She also commented on the accused’s interaction with his daughters, saying that they both loved him, that he was a very hands-on father, cooking nutritious meals for them, taking them to places, and making sure they had everything they needed.
Another friend also gave evidence about the good character of the accused. He has known the accused for approximately 5 years and saw him regularly, as they were playing in the same soccer team. This friend stated that he considered the accused to be a “good guy” and that he had never witnessed any display of dishonesty in the accused. He was shocked to hear about the allegations made against him.
This evidence of good character has not been challenged by the Crown. Therefore I accept the fact that the accused is a person of good character.
The law provides that I am entitled to take evidence of an accused’s good character into account in favour of him on the question of whether the Crown has proved his guilt beyond reasonable doubt in two ways:

The likelihood of his having committed the offences alleged. I can take into account the accused’s good character by reasoning that such a person of good character is unlikely to have committed the offences charged by the Crown; and

That it supports his credibility. I may reason that a person of good character is less likely to lie or give a false account in evidence before me.

Whether I reason in these ways is a matter for me to determine.
None of this means, of course, that good character provides DB with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of his guilt of the offences with which he is charged. What weight I give to the fact that he is a person of good character is completely a matter for me, but I should take that fact into account in the ways I have indicated.
As I have already said, I accept the accused’s evidence. However, as he has no memory of the events the subject of the proceedings, I must turn to other evidence in the Crown case to determine whether or not the accused is guilty of the offences with which he has been charged.

Complaint Evidence

Exhibit 8 is the letter written by the complainant which she gave to her mother on Saturday 2 November 2019. That is the first evidence of complaint. The second evidence of complaint is what she told her mother shortly after giving her the letter. Evidence of what she told her mother is contained in the mother’s statement (exhibit 16).
In the complainant’s letter (exhibit 8), the complainant wrote that on the night of the incident, she went to the accused’s bedroom during the night and that something horrible happened. She wrote that the accused “touched [her] on the girls part on perpos [sic]” and that it “was the second time this year he had done something like that to [her].”
The complainant’s mother BB said in her statement (exhibit 16) that when her daughter came into her place of work at around 2 pm on Saturday 2 November 2019, she had tears in her eyes and her mother took her into a storeroom to ask her what was wrong. The complainant’s mother said that her daughter told her that something horrible had happened, that she could not tell her but that she wrote it in a letter that she wanted to give her. The complainant’s mother asked the complainant if they should read it together after work and the complainant agreed.
Later that evening, the complainant’s mother asked her to bring her the note and they read it together.
After the complainant’s mother read the note, she asked the complainant a few questions. She asked her if the accused had his hands outside or inside the complainant’s underwear, if he had his hands outside of her vagina and if he had his hands “a little bit on the inside” of her vagina.
The complainant answered yes to all questions.
The Crown relies upon what the complainant said on these two occasions about the alleged conduct by the accused upon her, as evidence that such conduct occurred.
However, it is for me to decide whether the complaints were made and what their contents were. Mr Strickland says that there are some material differences, and in particular about whether or not there was digital penetration on either occasion.
If I find that the complaint or complaints were made substantially to the effect as set out above, then I can use evidence of what was said in the complaints as some evidence that such conduct did occur. That is, I can use it as some evidence additional to the evidence given of that incident by the complainant.
The law says that because of the circumstances in which the complaint or complaints were made, I am entitled to use what was said as evidence of the truth of what the complainant alleges against the accused. I am entitled to find that the complaint or complaints were made at a time and in a manner that would indicate that the allegations were reliable, that is, that the allegations are less likely to have been fabricated by the complainant and more likely to be accurate. It is a matter for me whether I draw that conclusion in this case and so treat the complaint or complaints as evidence of the alleged acts of the accused in addition to the evidence that has been given about it during the hearing. If I do use it as some evidence of the alleged conduct that is the subject of the charges, then what weight I give it is a matter for me.
Secondly, the Crown asserts that the evidence of complaint also has another purpose. The Crown contends that the fact that the complainant raised the allegations against the accused at the time and in the manner she did would lead me to accept her evidence. In other words, it makes her evidence more believable than if she had not raised the allegations as she did.
It is for me to decide whether these complaints were made, but if I am so satisfied, then the question is, did the complainant act in the way I would expect her to act if she had been assaulted as she said she was? Is what she did the sort of conduct one would expect of a person who has been assaulted in that way? If I think that the complainant has done what one would expect someone in her position to do, that may support the Crown case because one may find that there is a consistency between the complainant’s conduct and the allegations that she makes against the accused.
On the other hand, if the complainant has not acted in the way one would have expected someone to act after being assaulted as she has described, then that may indicate that the allegations are false.
Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasion.

Section 293A CPA

The defence case is that there were some small but material differences and inconsistencies in the complainant’s accounts.
I direct myself that experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that it is common for there to be differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. I must decide whether or not any differences in the complainant’s accounts are important in assessing her truthfulness and reliability.

Modified Murray direction

The Crown case depends upon my acceptance of one witness who is central to the Crown case - and that is the complainant. I must therefore carefully consider her evidence, particularly on the question of digital penetration which is an essential ingredient of count 1 and count 2. Before I could find on the evidence available that the accused committed those two offences with which he is charged, I would have to be satisfied the complainant was a truthful and a reliable witness as to those matters I consider important as to whether the accused is guilty beyond reasonable doubt of those two offences charged against him. If I am not so satisfied, then I must find the accused not guilty of those two offences charged, and turn to the alternative counts.

Section 165 - Reliability

Mr Strickland says that because of the complainant’s age and her relationship with her mother, that there is reason to doubt the reliability of her version that there was penetration in counts 1 and 2, given that in her initial complaint (in the letter and verbally to her mother was “on” the “girls part” and only after a leading and conditional question (“little bit”) from her mother) there was no mention of any penetration, which he submitted undermined the reliability of the complaint being a touching “in” the vagina. It was submitted that the fact that penetration arises in this context, in contrast to what was written unprompted in the note would raise a reasonable doubt about the evidence of penetration.
Similarly, in her interview with police on 3 November 2019, the complainant does not offer that the accused inserted his fingers inside her vagina, but rather she responded “yes” when it was suggested by the police officer conducting the interview.
Further, when she gave evidence in court during the trial, the complainant accepted that she was wrong when she told police that her father had touched her with his hands rather than with one hand.
Finally, Mr Strickland submitted that her evidence in court, when the complainant said she was not sure now if the accused had his fingers inside her vagina with respect to both incidents, would cause me to have a reasonable doubt about as to whether there was in fact penetration.
The Crown submits that there is enough evidence to accept beyond reasonable doubt that the accused penetrated the complainant with his fingers during the incident that took place during the night of 1/2 November 2019. In his submissions, Mr Paish refers to the complainant’s interview with a police officer 2 and 1/2 days after the incident. He submits that when she was asked whether the accused touched her on the outside of her vagina or the inside of her vagina or something else, her answers were unequivocal with respect to both incidents. The Crown submitted that the complainant’s recollection 18 months after the events, in court, should not be given as much weight as her memory of the incident a day or two after it took place.

Finding on penetration and sexual intercourse

The first time the complainant gave a description of the incident was in writing in the letter she wrote on 2 November 2019. She wrote, referring to what had happened the night before, that “dad touched me on the girls part…That was the second time this year he had done something like that to me”. In this document, the complainant clearly states that the accused touched her “on” her genitals but she does not say that he went further and inserted his fingers inside her vagina.
After reading her letter, the complainant’s mother had a discussion with the complainant and asked her the various questions set out above in a leading fashion. That is not meant to be a criticism of the complainant’s mother, who is not trained in eliciting reliable evidence from a 9 year old child.
Further, in the police interview there are leading questions which the complainant adopts. In particular, the complainant responds to questions about whether the touching was on the inside or outside of the vagina by saying “both”. Police then say “he put his finger inside of your vagina” (something that the complainant had not said), and which proposition she adopts. When asked whether it was inside or outside of the vagina?” the complainant answers “sort of both”.
In my opinion, the most significant evidence is the sworn evidence of the complainant during the trial, when she conceded that she could no longer be sure whether or not the accused put his hand inside her vagina. Whilst it is possible that the complainant no longer had a recollection, it is equally possible, in all of the circumstances, that the complainant could not be certain that it occurred on either occasion. The second incident occurred only about 18 months ago.

All of these matters, taken together, cause me to have a reasonable doubt about whether or not there was penetration at the time of either of the two incidents. Put another way, I am not satisfied beyond reasonable doubt that penetration occurred on either occasion, as in my opinion on this discrete issue I find the complainant’s evidence to be sufficiently unreliable, and I find that the Crown has not proved the element of sexual intercourse for the purposes of counts 1 and 2. I therefore will consider the alternatives to counts 1 and 2 as set out above.

Intention

So far as count 3 and the two alternative counts are concerned, I note that intent and intention are very familiar words. In this legal context they carry their ordinary meaning.
Intention may be inferred or deduced from the circumstances in which the event occurred and from the conduct of the accused before, at the time of, or after he did the specific act. Whatever a person says about his intention may be looked at for the purpose of finding out what that intention was in fact at the relevant time.
In some cases, a person’s acts may themselves provide the most convincing evidence of his intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and where he deliberately does that act, I may readily conclude that he did that act with the intention of achieving that specific result.
For example, if one person hits another on the head with a hammer, I might think that it is both obvious and inevitable that that person will receive serious bodily injury as a result. If, therefore, the first person deliberately hits the other on the head with a hammer, it is a simple matter to conclude that he did so with the intention of inflicting serious bodily injury upon that other person. I may think that there is no difficulty at all about coming to such a conclusion. However, I must remember that I am considering the intention of the accused, not what my intention might have been had I been in his position, or the intention of any theoretical person.
I note that in this particular case, given the concession by the Crown that the accused’s acts were involuntary and occurred when he was in a state of sleep, there is a real issue as to whether or not he could ever have had the requisite intention.

Expert Evidence

Expert evidence was adduced in the Crown case from Dr Fernando, Dr Desai and Dr Ellis. Dr Desai was not called and was not cross-examined. Their evidence was relevant to voluntariness and the issue of mental health impairment. Evidence was adduced by the Crown from Drs Fernando and Ellis on the issue of treatment for sexsomnia, which was objected to by Mr Strickland. The evidence was admitted provisionally pursuant to section 56 of the Evidence Act 1995. Ultimately, as discussed below, I reject that evidence on the grounds of relevance.

Dr Antonio Fernando

Dr Antonio Fernando, consultant psychiatrist and sleep medicine specialist, reported on 13 April 2021 (exhibit 2), and gave evidence on 28 April 2021. He has been involved in the diagnosis and treatment of sleep disorders including sexsomnia for 20 years. He published a case study on sexsomnia in 2005, and a paper on the forensic evaluation of sexsomnia in 2021. He was engaged by the Crown to provide his expert opinion on whether or not the accused experienced sexsomnia at the time of the offences, whether the accused’s behaviour at the time of the offences was affected by sexsomnia and to consider the possibility of malingering.
In his report, Dr Fernando listed many instances of sleep related episodes experienced by the accused dating back to his teenage years. At age 16, whilst in Central America, the maid of the house where he was staying found him sleepwalking in the garden. A few days later, he woke up in the garden of the house in the middle of the night. At age 17, a friend found him walking around the house where he was staying and brought him back to his bed. During his marriage, on a number of occasions the accused’s wife found the accused sitting up in bed, asleep and commenting about a cricket game.
Dr Fernando’s report also mentions occasions when the accused initiated sexual activity with his wife whilst asleep and had no memory of the activity when he woke up in the morning. Similar instances have been reported to the accused by his current partner. He grinds his jaw occasionally whilst sleeping and had a recent night terror whilst staying with his sister. The accused’s father has a history of fondling and grabbing his mother’s breast whilst asleep. His brother sleep talked.
The Auckland Sleep Questionnaire was administered. The accused was found to have no depressive or anxiety condition, some excessive alcohol use, loud snoring and dry mouth on awakening, restless leg symptoms, occasional sleep walking, frequent sleep talking, jaw and teeth clenching and nocturnal panic and anxiety attacks.
With respect to the incident that occurred on 29 June 2019, Dr Fernando says that the accused told him that he had enjoyed a nice night, that he did not remember any sexual activity with his daughter and that although he had been drinking from 2 pm to about 10:30 pm, he did not feel intoxicated.
With respect to the incident that occurred on 1 November 2019, the accused told Dr Fernando that he recalled having 4 or 5 beers and 2 bourbons between 5 and 11pm, that he denied feeling intoxicated and that he did not recall any sexual activity with the complainant. He recalled however, that the complainant was not quite alright in the morning, and that he encouraged her to talk to her mother or write about what was troubling her in her diary.
Dr Fernando was provided with the complainant’s JIRT interview, the statement of the complainant’s ex-wife and the report of Dr Desai (see below).
Dr Fernando provided a general discussion on sexsomnia which summarised a section of the recent article he published and which is marked as exhibit 18. He explains that sexsomnia, a term coined by Canadian Professor Colin Shapiro in 2003, is a parasomnic behaviour that has only recently be defined as a sleep disorder in the DSM-5 and that is increasingly recognised as being more prevalent in the general population than previously thought. Parasomnias form a vast group of sleep disorders by which patients experience undesirable events and sleep related behaviours before, during or immediately after sleep and that include sleepwalking, sleep talking, sleep terrors, nightmares, restless legs, sleep eating, teeth grinding and sleep related sexual behaviour. The range of sleep-related sexual behaviours is as broad and varied as sexual behaviour observed while awake, although men are in a large majority more affected than women, and the most common sexsomnic behaviours include sexual intercourse and fondling.
Dr Fernando stated that triggers for sexsomnic episodes, as in other parasomnias, include alcohol, recreational drug use, sleep deprivation, fatigue, sleep disruption and psychotic medications. He says that most sexsomnic patients have, prior or concurrent with the disorder, a history of sleepwalking, sleep talking or sleep terrors and that most episodes occur in the first third of the night. There is a consensus in partners of individuals having sexsomnia, that during an episode, which is usually brief, the individual is more direct, aggressive, less inhibited and less focused on their partner than whist awake and conscious. Patients suffering from sexsomnia usually have no recollection of their behaviour when they wake up, and they typically become upset when they are made aware of their behaviour.
Dr Fernando sets out the DSM-5 criteria for sexsomnia which includes, recurrent episodes of incomplete awakening from sleep during the first third of the major sleep episode accompanied by sleepwalking (which includes sleep related sexual behaviour), no or little dream imagery is recalled, amnesia of the episode, clinically significant distress or impairment, disturbance not being attributable to the effects of a substance, and co-existing mental or medical conditions do not explain the episodes. A diagnosis can then be made of a non-rapid eye movement sleep arousal disorder, sleepwalking type, with sleep related sexual behaviour (sexsomnia).
Dr Fernando says that to make a diagnosis, a thorough clinical history, sleep history and collateral history from partners of patients must be taken, in addition to the patient participating in an overnight sleep study in an effort to capture nocturnal sexual behaviours, as it is the combination of all this information that will best support or refute a diagnosis. However, Dr Fernando recognises that during a one night sleep study, when a participant will not have a sleep partner, there will be very few cases of actual sexsomnia visualised. He says that the absence of sexsomnic behaviour during a sleep study (as in the present case) does not exclude the possibility that sexsomnia occurred during the alleged reported events.
Dr Fernando notes that the accused has a long history of parasomnia symptoms based on multiple reports from family, friends and other witnesses and that he also has a family history of parasomnia. The sleep study performed on the accused on 13 May 2020 confirmed that he experiences at least two types of parasomnias: bruxism (teeth grinding) and periodic limb movements.
Dr Fernando refers to the reports of the accused’s various bed partners, current and past, with whom he has engaged in sexual behaviours whilst asleep, and lists examples of such events with his ex-wife, his ex-partner and his current partner based on the report written by Dr Desai on 2 February 2021 (exhibit 4) further detailed below. In his opinion, the examples provided by the accused’s bed partners confirm that his sexual behaviour whilst asleep was different from his usual conscious sexual activities in that he was not present, zombie-like, robotic and not focused on his partner, all of which is typically characteristic of sexsomnia. Dr Fernando also notes the extensive parasomnic history of the accused and says that the history is another characteristic of sexsomnia, as sexsomnia typically does not exist alone. Given all of this, Dr Fernando expresses an opinion that the accused appears to be suffering from sexsomnia.
Dr Fernando then turns to the particular circumstances of the offences allegedly committed by the accused. With respect to alcohol, he reiterates that it is a known triggering factor, and that on both occasions the accused had been consuming a substantial amount of alcohol, although he reported not being intoxicated.
Looking at the evidence given by the complainant in her JIRT interview, Dr Fernando notes that she herself thought it was possible that the accused was asleep on both occasions.
In Dr Fernando’s opinion, the nature of the behaviour depicted by the complainant, ie touching the complainant’s genitals and breast, is consistent with other previously described sexsomnic behaviours that occurred with the accused’s ex-wife, his ex-partner and his current partner.
He observes that the accused has consistently denied any recollection of the incidents with his daughter and that this form of amnesia is symptomatic of sexsomnia, as most sexsomnia sufferers have no or limited recall of their sexual behaviours whilst asleep.
Dr Fernando says that the complainant recalled that the accused mumbled and said some words to her to the effect of “put your leg away” and “pussy” during the second offence. He says that usually patients do not engage verbally during sexsomnic episodes because they are not conscious and that it is inconsistent with existing research. However, the accused has a long personal and family history of sleeptalking and mumbling while asleep. Dr Fernando concludes that the brief verbal exchange during the second incident with his daughter, may have been unconscious and part of the accused’s parasomnic disorder.
In Dr Fernando’s opinion, the accused was not malingering or feigning his symptoms. In his view, there is no doubt that the accused has a diagnosis of parasomnia, specifically sleepwalking, sleep talking, bruxism, restless legs syndrome and periodic leg movements. He is also of the view that he suffers from another parasomnia, that being sexsomnia. As the alleged offences are consistent with the accused’s other sexsomnic episodes, he is of the opinion that most likely the accused was suffering from sexsomnia during both offences.
Dr Fernando also gave evidence during the trial via AVL on 28 April 2021.
Dr Fernando was asked by the Crown to explain what the DSM-5 is. Dr Fernando replied that it is the classification system of mental disorders as published by the American Psychiatric Association, now in its 5^th edition. He added that it is a guideline and a system of knowledge that guides psychiatrists and medical doctors in their diagnosis of various mental health conditions. Dr Fernando added that although sexsomnia does not appear in the DSM-5 in those words, it is nonetheless included as a specific parasomnic behaviour under the rubric of “sleep-related sexual behaviour”.
Dr Fernando confirmed the diagnosis he made with respect to the accused and agreed that in his opinion, on the balance of probabilities the accused was suffering from sexsomnia during the time of both offences. He agreed with the Crown that with the guidance of the DSM-5, sexsomnia is considered to be a mental disorder.
In cross-examination by Mr Strickland, Dr Fernando confirmed that insomnia was also listed in the DSM-5 and that it too is considered a mental disorder. Dr Fernando explained that the DSM-5 was one classification system but that others existed, for instance the International Classification of Sleep Disorders (ICCB), and that many sleep specialists would not consider sleep disorders such as insomnia as a mental disorder, but instead would see it as a medical disorder with a physical rather than a mental basis. He further said that many of his colleagues who are not psychiatrists do not use the DSM-5, and do not accept that sleep disorders are mental disorders. In his opinion, parasomnic behaviours are considered mental disorders only because they have been considered pursuant to the classification system of the DSM-5. To illustrate this point further, Dr Fernando said that antisocial personality disorder, anxiety and depression are also included in the DSM-5 and as such, they are considered mental disorders by virtue only of being listed in the manual.
When asked by Mr Strickland if he considered sexsomnia to be a disease of the mind, Dr Fernando said he rarely used this term because he was aware of its legal implications. He added however, that in his view sexsomnia, similarly to sleep talking, insomnia, depression, and anxiety were all abnormalities in an otherwise normal brain.
With respect to voluntariness, Dr Fernando says that when experiencing many parasomnias, people are unconscious and therefore their acts are involuntary.
Dr Fernando also confirmed that based on the existing case studies of sexsomnia, it can be established that alcohol is a triggering factor in many cases and that it increases the likelihood of sexsomnia. In this particular case, Dr Fernando said that alcohol may have been a precipitating factor, which may have contributed to the onset of sexsomnia. In this case, in his view the fact that the accused had consumed alcohol before both incidents does not lessen the likelihood that he had sexsomnia. In his opinion, his behaviour was not the result of his alcohol consumption.
Dr Fernando elaborated on the physiological aspects of brain activity during parasomnic episodes. He explained that during parasomnias, parts of the brain are asleep whilst other parts of the brain are awake, so that people cannot be considered fully conscious.
Dr Fernando provided the court with some information about the prevalence of sleep disorders in the general population and said that the majority of the population have sleep symptoms once in a while, but that these symptoms are different from disorders. These symptoms become disorders if they have a significant impact in terms of a person’s functioning. He gave the example of sleep talking and differentiated between the odd occasion when someone will talk in their sleep as opposed to someone who will scream in their sleep most nights and then feel exhausted during the day, at which point, in his opinion sleep talking ceases to be a symptom and becomes a sleep disorder.
With respect to treatment, Dr Fernando was taken by the Crown to the article he published in February 2021 and he confirmed that clonazepam (a benzodiazepine) may have an effect on limiting parasomnic behaviour. He also said that in the case of the accused, avoiding drinking alcohol would likely assist in terms of risk reduction strategy. He warned, however, that clonazepam had various negative side effects.
With respect to the accused, Dr Fernando says that because he is suffering from other parasomnic behaviour such as restless leg disorder and periodic limb movements, his sleep is more superficial and may well increase the risk of sexsomnia or other parasomnia. In his opinion, the accused should therefore seek treatment with a sleep specialist for these other symptoms and to address his sexsomnia. Dr Fernando does not believe that the accused would benefit from medical or psychiatric hospitalisation.

Dr Anup Desai

Dr Anup Desai, consultant physician in respiratory and sleep medicine, reported on 22 May 2020 (exhibit 3) and 2 February 2021 (exhibit 4) and conducted a sleep study of the accused, the report of which is exhibit 5.
In his first report dated 22 May 2020, Dr Desai was asked to review the documents with which he was briefed, consider the results of the sleep study that he conducted and assess the accused to provide his opinion generally, including as to any specific conditions suffered by the accused, and with respect to the availability of the defence of automatism.
Dr Desai described the sleep history of the accused and his history of sexsomnia during the relationship with his wife as well as with his subsequent partner. He commented on the sleep study conducted at St Luke’s Private Hospital on 13 May 2020 (exhibit 5) and concluded that the accused showed minor obstructive sleep apnoea, a sleep breathing disorder and that bruxism and mild periodic limb movements were noted. There was no evidence of abnormal arousal disorder during the study.
Dr Desai noted that sexsomnia was considered an automatism or involuntary behaviour over which an individual has no control, and that it is often associated with other parasomnias.
With respect to the accused’s case, Dr Desai said that there were some aspects of the accused’s history that were consistent with sleep sex behaviour, one of which is a prior history of abnormal behavioural events whilst asleep, (all of which has been already noted above). There was further support in the JIRT interview of the complainant when she commented that the accused may have been asleep during the events, his apparent confusion associated with possible sleep related events and poor recall of these events. Less consistent features of his history are that there was not a longer history of sleepwalking or parasomnic behaviour since childhood and the complainant’s recall of the first event as being about an hour, when such events are usually brief.
Whist Dr Desai found medical evidence for a sleep related automatism at the time of the offences, he warned that some evidence was less consistent with sexsomnia and that the accused’s alcohol consumption at the time of the offence raised the possibility of alcohol related complex sleep behaviour as an alternative diagnosis.
In his second report dated 2 February 2021 (exhibit 4), Dr Desai was provided with additional information by the way of reports from the accused’s mother, father, brother, previous partner and current partner and by the accused himself. Dr Desai was asked to indicate whether the additional information affected his opinion in any way.

Mr Strickland submits also that the principle of legality, a rule of statutory interpretation, requires clear and unambiguous language to overturn the long-held fundamental principles of the common law with respect to voluntariness in a person who is otherwise of sound mind. He says that to find that section 4 of the MHCIFP embraces entirely involuntary conduct as a disturbance of volition, would offend that principle.

Intention

Couts 1 and 2 do not involve any specific intent element, but the alternatives for counts 1 and 2 involve an element that the sexual touching must be intentional.
Mr Strickland submitted that it is hard to conceptualise how an act could be intentional if it is not, as the Crown concedes, voluntary. As well as whether the acts themselves were voluntary, automatism is also relevant to whether the acts were committed with the requisite specific intent. In Cvetkovic v R [2010] NSWCCA 329, Campbell JA (with whom Simpson and Whealy JJ agreed) said at [3]:

There are no substantive rules of law relating to the manner in which automatism bears upon whether a person is guilty of a crime. Rather, whether an accused was in a state of automatism at the time of committing an alleged offence is a question of fact, that bears upon whether the act in question was performed voluntarily, and whether it was performed with any specific intention that constitutes an element of the crime: Hall v R (1988) 36 A Crim R 368 at 371-2 per Roden J. See also Hawkins v R (1994) 179 CLR 500.

Mr Strickland submitted that the Crown case fails with respect to count 3 and the alternatives to 2 and 3 both because the acts were not voluntary and they were not done with the necessary intent.
He submits that there is a question as to whether the court should consider the mental health impairment defence before or after it considers whether the mens rea of the offence has been made out. In other words, does the Crown need to prove the acts were done with the requisite intent before section 28 of the MHCIFP Act is engaged?
Mr Strickland said that whether the prosecution must also prove the mental element of the offence first, prior to a jury being able to consider whether the person has a defence of mental impairment is a vexed area of the law. In R v Minani [2005] NSWCCA 226; (2005) 63 NSWLR 490 the Court of Criminal Appeal (Hunt AJA, with whom Spigelman CJ and Howie J agreed) held at [32]:

Proof of the specific intention which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved.

In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this state, evidence of mental illness is relevant to the question as to whether the accused’s act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is:

Was it the act of the accused which, in [that] case, caused the malicious wounding?

Was he criminally responsible for doing that act?

Was that act done with the specific intention required?

The second question is resolved by a finding that mental illness had been established.
The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent.
It is agreed that I should consider matters in the order set out above.

Findings on the MHCIFP Act

In my opinion, the accused does not have a mental health impairment as defined in section 4 of the MHCIFP Act for the following reasons.
First, in my view a person suffering from a parasomnia such as sexsomnia, unaccompanied by other psychopathology, does not have a disturbance of volition, temporary or otherwise for the purposes of the definition in section 4. I accept Dr Ellis’s formulation, that in the ordinary sense volition is the act of making a choice, and that when a person does something whilst asleep there is an absence of volition rather than a disturbance of volition. In my opinion, there is a significant difference between the two concepts, on the evidence in this particular case. On this basis alone, I am not satisfied that the Crown has proved on the balance of probabilities that the accused had a mental health impairment.
I also rely on other evidence adduced during this trial from Dr Ellis, who was a member of a committee involved in the drafting of the legislation. His unequivocal view was that the section 4 definition is used for the purpose of imposing involuntary medical treatment on individuals and that no medical institution offers medical treatment for parasomnias. In Dr Ellis’s (and Dr Fernando’s) opinion, parasomnias are involuntary, and not considered the product of a disordered mind because those suffering from them typically have no psychopathology when awake and conscious. I accept Dr Ellis’s evidence in its entirety.
As to the requirement that the “disturbance” would be regarded as significant for clinical diagnostic purposes, I note the Attorney-General’s comments set out elsewhere in this judgment that the temporary or ongoing disturbance must be serious enough to result in a mental health diagnosis. Dr Ellis’s view was that to have significance, the disturbance needed to be accepted in the medical community as a diagnosis and that there was a need for standards around that diagnosis. In this case, the Crown relied on DSM-5 as establishing sexsomnia as a mental health diagnosis. DSM-5 is a manual that has been created to assist medical practitioners in treating patients. It includes disorders that could not possibly be classified as mental health impairments pursuant to section 4 of the MHCIFP Act. The examples of insomnia and of erectile dysfunction were noted on several occasions. In any event, I note Dr Fernando’s evidence that parasomnias were classified not only by DSM-5 but by the ICCB, and that persons other than psychiatrists treated persons with sleep disorders. Thus in my opinion, there appears to be no consensus that parasomnias result in a true mental health diagnosis or with respect to their treatment. I note the full content of the Cautionary Statement (exhibit 20). DSM-5 is not determinative of mental health impairment in the legal context.
Having made this finding, I re-iterate that I have made it on the evidence in the present case.
Even if I am wrong in my findings about section 4, in my opinion, the Crown has not proved on the balance of probabilities that the section 28 defence has been made out for the following reasons.
In my opinion section 28 codifies the M’Naghten test. I note that the Attorney-General, in the Second Reading Speech, said:-

Clause 28 of the bill applies to matters in the District or Supreme courts. It provides for the defence of mental health impairment or cognitive impairment, which largely mirrors the test but with updated terms. The statutory test of the bill enables a person to show that they were not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or cognitive impairment, or both, that had the effect that the person “did not know the nature and quality of the act”, or “did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong)”.

So much is clear from the language of section 28, which in fact picks up material parts of M’Naghten’s test and updates some language: see also Anina Johnson Forensic Provisions Act Amendments, [2021] (Autumn) Bar News at 22 and Justice Mark Ierase Introducing the New Mental health and cognitive Impairment Forensic Provisions Act 2020 (2021) 33(2) JOB 15 at 17.
In my opinion, it being the case that the accused performed the acts unconsciously and involuntarily whilst he was asleep – without choice or decision – means that he cannot fall within the ambit of section 28, which is reserved for those who are conscious of their actions but either do not know the nature and quality of their acts or do not know that their acts were wrong. So much has informed our law for almost 200 years. As was expressed by Mr Strickland, if Parliament meant to interfere with the long-recognised common law entitlement to acquittal in cases of involuntary acts (non-insane automatism), the principle of legality - a rule of statutory interpretation - would have required there to be clear and unambiguous words in the MHCIFP Act. No such words are found anywhere in the MHCIFP Act. I observe that the Act’s most significant change appears to be the inclusion of cognitive impairment.
I am unable to accept Mr Paish’s submission that there are overarching policy considerations that prevent me from entering acquittals in this case on the basis of the Ontario Court of Appeal’s judgment in Luedecke, because the accused is a recurring danger to the community as he will be left untreated. As I have said, I am bound by the High Court of Australia, the Court of Criminal Appeal of New South Wales and the statutes of this state. Nothing in the judgments of those courts or the language of the MHCIFP Act would permit me to take such a radical course. Such a finding, in my opinion, would be contrary to both established precedent and the language of the statute that I am considering.
In all the circumstances, I accept the submissions of Mr Strickland, and I will enter verdicts of not guilty for each count.

Consideration – Counts 1 and 2

As I have found that the Crown has not proved sexual intercourse beyond reasonable doubt, I acquit him of counts 1 and 2, and I move on to the statutory alternatives.

Consideration – Statutory Alternatives to Counts 1 and 2, and Count 3

It is conceded by the Crown that the acts were involuntary. I agree that as a result of the accused’s sexsomnia, the actus reus of each offence is not made out and the acts of the accused were involuntary, and I therefore turn to the special verdicts pursuant to the MHCIFP Act.

Consideration – the MHCIFP Act

In my opinion, the Crown has failed to prove, on the balance of probabilities, that accused, at the time of his actions in June and November 2019, suffered from a mental health impairment pursuant to section 4 of the MHCIFP Act. Further, in my opinion, the Crown has failed to prove, on the balance of probabilities, that any mental health impairment the accused may have suffered at those dates had the effect that he did not know the nature and quality of those acts or that he did not know that those acts were wrong within the meaning of section 28(1) of the MHCIFP Act. Thus that Act has no application in the circumstances, and I enter verdicts of not guilty to the statutory alternatives to counts 1 and 2 and count 3.

Intention

For completeness, noting that the statutory alternatives to counts 1, 2 and count 3 have specific intention as an element, and accepting as I do that the acts were involuntary and occurred whilst the accused was asleep, I find that the element of intention is not made out beyond reasonable doubt, and those counts fail for that reason as well.

Conclusion

I acquit the accused of all counts on the indictment.

ANNEXURE “A”

ELEMENTS

R v DB

Count 1^[1]

1. Section 66A(1) Crimes Act 1900

To find the accused guilty, the Crown needs to prove beyond a reasonable doubt that:

The accused had sexual intercourse with CB:
a. “Sexual intercourse” means sexual connection occasioned by the penetration to any extent of the genitalia of a female person by any part of the body of another person;^[2] and
2. Section 61HA Crimes Act
The sexual intercourse was a voluntary act; and
CB was aged under 10 years of age.

If not satisfied beyond a reasonable doubt of Element 2 above, but satisfied of Elements 1 and 3, then consider Special Verdict below.

Count 1 - Special verdict

The Court may return a verdict of “act proven but not criminally responsible” if the Crown:

1. Proves beyond a reasonable doubt that the accused had sexual intercourse with CB:
a. “Sexual intercourse” means sexual connection occasioned by the penetration to any extent of the genitalia of a female person by any part of the body of another person; and

Proves beyond a reasonable doubt that CB was aged under 10 years of age; and
Proves on the balance of probabilities^[3] that at the time of the sexual intercourse the accused had a mental health impairment^[4]:
3. Section 28(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
4. Section 28(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
a.   “mental health impairment” means that the accused had a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
b.   the disturbance would be regarded as significant for clinical diagnostic purposes, and
c.   the disturbance impaired the emotional wellbeing, judgment or behaviour of the person;
d.   but not if the person’s impairment was caused solely by the temporary effect of ingesting a substance, or a substance use disorder^[5]; and
5. Section 4 Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Proves on the balance of probabilities^[6] that at the time of the sexual intercourse the mental health impairment had the effect that the accused either:
6. Section 28(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
a. did not know the nature and quality of the act of sexual intercourse; or
b. did not know that the act of sexual intercourse was wrong (that is, the accused could not reason with a moderate degree of sense and composure about whether the act of sexual intercourse, as perceived by reasonable people, was wrong)^[7].
7. Section 28(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020

If not satisfied as to any of the elements of Count 1 above, consider the statutory alternative below^[8].

8. Section 80AB(11) Crimes Act

Alternative to Count 1^[9]

9. Section 66DA Crimes Act

To find the accused guilty the Crown needs to prove beyond reasonable doubt that:

The accused sexually touched CB:
a. The accused touched CB’s body with a part of his body; and
b. A reasonable person would consider the touching to be sexual (including by reference to whether the area of the body touched is the person’s genital area; whether the touching was done for the purpose of obtaining sexual arousal or sexual gratification; or whether any other aspect of the touching makes it sexual)^[10]; and
10. Section 61HB Crimes Act
The sexual touching was a voluntary act; and
The sexual touching was an intentional act of the accused; and
CB was aged under 10 years of age.

If not satisfied beyond a reasonable doubt of Element 2 above, but satisfied of Elements 1, 3 and 4, then consider Special Verdict below.

Alternative to Count 1 - Special verdict

The Court may return a verdict of “act proven but not criminally responsible” if the Crown:

Proves beyond a reasonable doubt that the accused sexually touched CB:
a. The accused touched CB’s body with a part of his body; and
b. A reasonable person would consider the touching to be sexual (including by reference to whether the area of the body touched is the person’s genital area; whether the touching was done for the purpose of obtaining sexual arousal or sexual gratification; or whether any other aspect of the touching makes it sexual); and
Proves beyond a reasonable doubt that the sexual touching was an intentional act of the accused; and
Proves beyond a reasonable doubt that CB was aged under 10 years of age; and
Proves on the balance of probabilities^[11] that at the time of the sexual touching the accused had a mental health impairment^[12]:
11. Section 28(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
12. Section 28(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
a.   “mental health impairment” means that the accused had a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
b.   the disturbance would be regarded as significant for clinical diagnostic purposes, and
c.   the disturbance impaired the emotional wellbeing, judgment or behaviour of the person;
d.   but not if the person’s impairment was caused solely by the temporary effect of ingesting a substance, or a substance use disorder^[13]; and
13. Section 4 Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Proves on the balance of probabilities^[14] that at the time of the sexual touching the mental health impairment had the effect that the accused either:
14. Section 28(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
a. did not know the nature and quality of the act of sexual touching; or
b. did not know that the act of sexual touching was wrong (that is, the accused could not reason with a moderate degree of sense and composure about whether the act of sexual intercourse, as perceived by reasonable people, was wrong^[15].
15. Section 28(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Count 2^[16]

16. Section 66A Crimes Act

Crown needs to prove beyond a reasonable doubt that:

The accused has sexual intercourse with CB:
a. “Sexual intercourse” means sexual connection was occasioned by the penetration to any extent of the genitalia of a female person by any part of the body of another person ^[17]; and
17. Section 61HA Crimes Act
The sexual intercourse was a voluntary act; and
CB was aged under 10 years of age

If not satisfied beyond a reasonable doubt of Element 2 above, but satisfied of Elements 1 and 3, then consider Special Verdict below.

Count 2 - Special verdict

The Court may return a verdict of “act proven but not criminally responsible” if the Crown:

Proves beyond a reasonable doubt that the accused has sexual intercourse with CB:
a. “Sexual intercourse” means sexual connection was occasioned by the penetration to any extent of the genitalia of a female person; and
Proves beyond a reasonable doubt that CB was aged under 10 years of age; and
Proves on the balance of probabilities^[18] that are the time of the sexual intercourse the accused had a mental health impairment^[19]:
18. Section 28(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
19. Section 28(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
a.   “mental health impairment” means that the accused had a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
b.   the disturbance would be regarded as significant for clinical diagnostic purposes, and
c.   the disturbance impaired the emotional wellbeing, judgment or behaviour of the person;
d.   but not if the person’s impairment was caused solely by the temporary effect of ingesting a substance, or a substance use disorder^[20]; and
20. Section 4 Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Proves on the balance of probabilities^[21] that at the time of the sexual intercourse the mental health impairment had the effect that the person either:
21. Section 28(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
a. did not know the nature and quality of the act of sexual intercourse; or
b. did not know that the act of sexual intercourse was wrong (that is, the accused could not reason with a moderate degree of sense and composure about whether the act of sexual intercourse, as perceived by reasonable people, was wrong^[22].
22. Section 28(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020

If not satisfied as to any of the elements of Count 2 above, consider the statutory alternative below^[23].

23. Section 80AB(11) Crimes Act

Alternative to Count 2^[24]

24. Section 66DA Crimes Act

To find the accused guilty the Crown needs to prove beyond a reasonable doubt that:

The accused sexually touched CB:
a. The accused touched CB’s body with a part of his body; and
b. A reasonable person would consider the touching to be sexual (including by reference to whether the area of the body touched is the person’s genital area, whether it was done for sexual arousal or gratification and whether any aspect of the touching makes it sexual) ^[25]; and
25. Section 61HB Crimes Act
The sexual touching was a voluntary act; and
The sexual touching was an intentional act of the accused; and
CB was aged under 10 years of age.

If not satisfied beyond a reasonable doubt of Element 2 above, but satisfied of Elements 1, 3 and 4, then consider Special Verdict below.

Alternative to Count 2 - Special verdict

The Court may return a verdict of “act proven but not criminally responsible” if the Crown:

Proves beyond a reasonable doubt the accused sexually touched CB:
a. The accused touched CB’s body with a part of his body; and
b. A reasonable person would consider the touching to be sexual (including by reference to whether the area of the body touched is the person’s genital area, whether it was done for sexual arousal or gratification and whether any aspect of the touching makes it sexual); and
Proves beyond a reasonable doubt that the sexual touching was an intentional act of the accused; and
Proves beyond a reasonable doubt that CB was aged under 10 years of age; and
Proves on the balance of probabilities^[26] that are the time of the sexual touching the accused had a mental health impairment^[27]:
26. Section 28(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
27. Section 28(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
a.   “mental health impairment” means that the accused had a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
b.   the disturbance would be regarded as significant for clinical diagnostic purposes, and
c.   the disturbance impaired the emotional wellbeing, judgment or behaviour of the person;
d.   but not if the person’s impairment was caused solely by the temporary effect of ingesting a substance, or a substance use disorder^[28]; and
28. Section 4 Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Proves on the balance of probabilities^[29] that at the time of the sexual touching the mental health impairment had the effect that the person either:
29. Section 28(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
a. did not know the nature and quality of the act of sexual touching; or
b. did not know that the act of sexual touching was wrong (that is, the accused could not reason with a moderate degree of sense and composure about whether the act of sexual intercourse, as perceived by reasonable people, was wrong^[30].
30. Section 28(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Count 3^[31]

31. Section 66DA Crimes Act

To find the accused guilty the Crown needs to prove beyond a reasonable doubt that:

The accused sexually touched CB:
a. The accused touched CB’s body with a part of his body; and
b. A reasonable person would consider the touching to be sexual (including by reference to whether the area of the body touched are the breasts of a female person, whether it was done for sexual arousal or gratification and whether any aspect of the touching makes it sexual) ^[32]; and
32. Section 61HB Crimes Act
The sexual touching was a voluntary act; and
The sexual touching was an intentional act of the accused; and
CB was aged under 10 years of age.

If not satisfied beyond a reasonable doubt of Element 2 above, but satisfied of Elements 1, 3 and 4, then consider Special Verdict below.

Count 3 – special verdict

The Court may return a verdict of “act proven but not criminally responsible” if the Crown:

Proves beyond a reasonable doubt the accused sexually touched CB:
a. The accused touched CB’s body with a part of his body; and
b. A reasonable person would consider the touching to be sexual (including by reference to whether the area of the body touched is the person’s genital area, whether it was done for sexual arousal or gratification and whether any aspect of the touching makes it sexual); and
Proves beyond a reasonable doubt that the sexual touching was an intentional act of the accused; and
Proves beyond a reasonable doubt that CB was aged under 10 years of age; and
Proves on the balance of probabilities^[33] that are the time of the sexual touching the accused had a mental health impairment^[34]:
33. Section 28(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
34. Section 28(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
a.   “mental health impairment” means that the accused had a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
b.   the disturbance would be regarded as significant for clinical diagnostic purposes, and
c.   the disturbance impaired the emotional wellbeing, judgment or behaviour of the person;
d.   but not if the person’s impairment was caused solely by the temporary effect of ingesting a substance, or a substance use disorder^[35]; and
35. Section 4 Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Proves on the balance of probabilities^[36] that at the time of the sexual touching the mental health impairment had the effect that the person either:
36. Section 28(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020
a. did not know the nature and quality of the act of sexual touching; or
b. did not know that the act of sexual touching was wrong (that is, the accused could not reason with a moderate degree of sense and composure about whether the act of sexual intercourse, as perceived by reasonable people, was wrong.

Endnotes

Amendments

31 May 2021 - coversheet - corrected case and text cited

Decision last updated: 31 May 2021

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