Brereton JA at [1] Wilson J at [72] Ierace J at [204]
Decision:
1 Appeal dismissed
Catchwords:
CRIME – Appeal by Crown against acquittals – charges of sexual touching – respondent suffering from “sexsomnia” – question of volition – construction of phrase “mental health impairment” – s 4 Mental Health (Forensic Provisions) Act 2020 – whether Act codifies or alters the common law concerning the mental illness defence - relevance of common law defence of non-insane automatism –whether sexsomnia is a mental health impairment – question of correctness of construction and application of Act at trial
Secretary, Department of Family and Community Services v Hayward (a pseudonym)
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v DB [2022] NSWCCA 87
Case
[2022] NSWCCA 87
Decision Date
CaseChat Overview and Summary
In the case of R v DB, the respondent was initially charged with sexual touching. The Crown appealed the respondent's acquittals on the basis that the trial judge had misapplied the provisions of the Mental Health (Forensic Provisions) Act 2020. The respondent claimed to have suffered from an episode of sexsomnia, a condition that causes individuals to engage in sexual activity while asleep and without conscious awareness, during the incidents in question. The appeal raised significant issues concerning the interpretation and application of the Act, particularly in relation to the defence of non-insane automatism and the definition of "mental health impairment."
The central legal issues before the court were whether the Mental Health (Forensic Provisions) Act 2020 had altered or codified the common law concerning the defence of non-insane automatism, and whether sexsomnia qualified as a "mental health impairment" under the Act. The court had to determine whether the trial judge correctly applied the statutory provisions and whether the common law defence of non-insane automatism remained relevant in the context of the Act. Furthermore, the court examined whether the trial judge had correctly interpreted the term "mental health impairment" and applied it to the facts of the case.
The court held that the Mental Health (Forensic Provisions) Act 2020 did not codify the common law defence of non-insane automatism, but rather provided a statutory framework for dealing with cases where a defendant's mental state is in issue. The court found that sexsomnia did not constitute a "mental health impairment" within the meaning of the Act, as it did not involve an "impairment of, or a disturbance in, the functioning of the mind or brain." Consequently, the court held that the trial judge had erred in acquitting the respondent on the basis of sexsomnia, and that the acquittals should be set aside. The Crown's appeal was allowed, and the matter was remitted to the trial court for reconsideration.
The court issued orders setting aside the respondent's acquittals and remitting the matter to the trial court for further proceedings. The trial court was directed to determine the appropriate verdict in light of the court's findings on the construction and application of the Mental Health (Forensic Provisions) Act 2020. The respondent was to be given an opportunity to present any further evidence or argument in relation to the charges. The case underscores the importance of correctly interpreting and applying statutory provisions in criminal cases, particularly when a defendant's mental state is at issue.