R v Duncan - [2015] SASCFC 191

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DUNCAN
[2015] SASCFC 191
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Stanley)
14 December 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Application for permission to appeal against conviction. Appeal against conviction.
After a trial by jury in the District Court the applicant/appellant, Mr Duncan, was convicted of aggravated serious criminal trespass, rape and indecent assault. Mr Duncan appeals against the convictions on all counts. A Judge of this Court granted permission to appeal on the ground that the verdicts are unreasonable and referred to the Court of Criminal Appeal the applications for permission to appeal on the remaining grounds.
Whether given the evidence, including, in particular, the expert evidence, the Crown had excluded as a reasonable possibility that Mr Duncan’s conduct was the product of a somnambulistic or dissociative state as a result of which the prosecution has failed to prove his actions were conscious, voluntary and intentional. Whether a miscarriage of justice occurred because the jury did not have cogent evidence that, if received, would have increased the possibility of an acquittal. Mr Duncan also complains about specific directions given by the trial judge.
Held per Stanley J (Sulan J and Peek J agreeing) allowing the appeal:
1. It cannot be said that the jury must have entertained a reasonable doubt as to whether the appellant’s acts were voluntary and intentional. I would dismiss ground 1 (at [38] - [39]).
2. There is not a significant possibility that the jury, acting reasonably, would have acquitted Mr Duncan had the evidence of what occurred in court immediately following the delivery of the verdict had been before it. I would grant permission to appeal on ground 2 but dismiss this ground (at [46] - [47]).
3. Ground 3 complains that the summing up as to the evidence of Professor McFarlane was defective. When read as a whole, this passage of the summing up does not constitute a misdirection. The same cannot be said of the direction of which complaint is made in ground 7. The application of the O’Connor direction to this case is a misdirection. It constitutes a miscarriage of justice. I would give permission to appeal on grounds 3 and 7. I would dismiss the appeal on ground 3 but allow the appeal on ground 7 (at [54], [56] and [68]).
4. Mr Duncan submits that the evidence raised the question of whether the ingredient of knowledge of lack of consent could be proved beyond reasonable doubt. He submits this should have been left to the jury irrespective of the fact that at trial he did not put this forward as a defence. I do not accept this submission. The only relevance of the evidence of Mr Duncan’s statement “She invited me in” was that it evidenced a person in a dissociated state. Any direction to the jury on this basis would have run the risk of confusing them and distracting their attention from the real issues. There was no miscarriage of justice. I would refuse permission to appeal on grounds 4, 11 and 12 (at [77] - [78]).
5. The direction of which complaint is made in ground 5 was a misdirection for the same reasons that I have upheld ground 7. I would give permission to appeal and allow the appeal on ground 5 (at [80] - [81]).
6. As the appeal is to be allowed, it is unnecessary to address ground 6 at length. It is sufficient to note that the terms of the direction “he was capable of forming, incapable of forming, an intention to commit the charge” are contradictory and ambiguous (at [83]).
7. The two sentences from Tucker adopted by the judge in his direction to the jury were unnecessary and liable to confuse the jury. I would also give permission and allow the appeal on ground 8 (at [86] - [87]).
8. Ground 9 complains that the directions as to how the jury should use the evidence of Professor McFarlane were inadequate. In the circumstances it is unnecessary to address this ground (at [88] - [89]).
9. Permission to appeal on grounds 2, 3, 5, 7 and 8 granted. Appeal allowed on grounds 5, 7 and 8. Verdicts of guilty set aside and a retrial ordered (at [90]).
Criminal Law Consolidation Act 1935 (SA) s 353(1), s 359, referred to.
M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; Libke v The Queen (2007) 230 CLR 559; The Queen v Falconer (1990) 171 CLR 30; Walton v R [1978] 1 All ER 542; Taylor v R (1978) 22 ALR 599; R v Gemmil (2004) 8 VR 242; R v Dick [1966] Qd R 301; R v Patzel [2012] SASCFC 108; R v Dorning (1981) 27 SASR 481; Mickelberg v The Queen (1989) 167 CLR 259; The Queen v O’Connor (1979 – 1980) 146 CLR 64; RPS v The Queen (2000) 199 CLR 620; R v Getachew (2012) 248 CLR 22; The Queen v Tucker (1984) 36 SASR 135, considered.

R v DUNCAN
[2015] SASCFC 191
Court of Criminal Appeal: Sulan, Peek and Stanley JJ

SULAN J: I would allow the appeal. I agree with the orders proposed by Stanley J and with his reasons.
PEEK J: I agree with the orders proposed by Stanley J and substantially with his reasons.
STANLEY J:
Introduction
After a trial by jury in the District Court the applicant/appellant, Mr Duncan, was convicted of aggravated serious criminal trespass, rape and indecent assault. Each verdict was returned by a majority.
Mr Duncan appeals against the convictions on all counts. The grounds of appeal fall into three distinct categories. First, a ground that the verdicts are unreasonable, second, an application for the admission of fresh evidence to establish that there has been a miscarriage of justice and third, complaints about specific directions given by the trial judge.
A Judge of this Court granted permission to appeal on the ground that the verdicts are unreasonable and referred to the Court of Criminal Appeal the applications for permission to appeal on the remaining grounds.
On the hearing of the appeal, Mr Duncan abandoned ground 10.
Circumstances of the offending
The prosecution case alleged that at around 4.30am on 24 February 2012, Mr Duncan entered a share house in Richmond,[1] being the place of residence of Mr C, Mr W and Ms T, and sexually assaulted the complainant Ms R, the girlfriend of Mr C. It was alleged the assault took place in the bedroom shared by Mr C and Ms R. It was alleged that Mr Duncan raped Ms R by causing her to perform an act of fellatio without her consent, knowing she did not consent or being recklessly indifferent to the fact that she was not consenting. It was further alleged that Mr Duncan entered the premises, knowing it to be a place of residence, with the intention of committing an offence therein, with the knowledge that people were present in the residence or being recklessly indifferent as to whether anyone was present. This was the basis of the aggravated serious criminal trespass charge.
[1] Although the appellant describes it as being in Cowandilla, it is in fact as the Crown submits in Richmond.
The prosecution case was that Ms R was asleep in bed with Mr C when she was woken by someone who straddled her and put his penis in her mouth. As it was dark and she was half asleep she assumed it was Mr C and performed the act of fellatio. This was the basis of the rape charge. It was alleged that soon after Mr Duncan thrust his penis on top of Ms R’s clothing in the area of her vagina. This was the basis of the indecent assault charge. Mr C awoke and challenged Mr Duncan who ran away.
Ms R and Mr C gave evidence that, when Mr Duncan was challenged as to what he was doing in the bedroom, he said “she invited me in”. Ms R gave evidence of Mr C asking Mr Duncan where he came from, to which he replied, “New Zealand”. Mr C said that, when confronted, Mr Duncan was really placid and not animated. There was no attempt by Mr Duncan to defend himself when physically confronted by Mr C, pushing him in the chest. Mr C thought Mr Duncan was behaving strangely.
The evidence suggested that Mr Duncan had entered the property either by walking down the driveway into the backyard or by scaling the back fence from a vacant block. It is likely that he entered the house through the unlocked back door. There was no evidence that he had attended at the property previously or knew any of the occupants.
There was evidence of Mr Duncan using his mobile phone that night, both before and after these events, to access websites relating to “swingers” and the sexual fetish known as “cuckolding”.[2] That occurred at 12:24 a.m. and 5:34 a.m. At 2:13 a.m. he sent a text message to his former partner saying he was going to sleep.[3]
[2] “Cuckholding” involves one member of a couple having sex with a stranger while the other observes.
[3] He actually used the Maori word for sleep, “moe”.
Two days later Mr Duncan was arrested at his home, which was in the near vicinity of Mr C’s house.
At trial Mr Duncan did not dispute that these events had occurred. He gave evidence that he had no memory of these events. He claimed to have suffered an episode of amnesia during most of this night. He said he had no memory of events between falling asleep at his aunt’s home at about midnight and when he awoke the next morning at his home, shortly prior to sending an SMS message at 12:05 p.m. He gave evidence that he had consumed alcohol and drugs the previous day. His evidence was that at about 3 p.m. he had two points of methylamphetamine and two ecstasy tablets. Sometime later he consumed six stubbies of full-strength beer and 10 bongs of marijuana. He gave evidence of playing rugby before returning to his aunt’s house.
Evidence of the appellant’s background
Mr Duncan gave evidence that as a child in New Zealand his father had forced him to watch videos of his mother having sex with strangers. Subsequently, he had joined the New Zealand Army where he saw active service in East Timor. While there, he had suffered a severe electric shock which had caused cardiac arrest. He also gave evidence of being concussed numerous times.
The defence
Mr Duncan’s defence was that it was a reasonable possibility that he was in a dissociated state or sleep walking at the time of the offending such that it could not be proved beyond reasonable doubt that he was acting consciously, voluntarily, or intentionally.
Psychiatric evidence
Uncontradicted evidence was called from a psychiatrist, Professor Sandy McFarlane. Professor McFarlane interviewed Mr Duncan for two hours and 45 minutes. He was provided with statements taken by the police from Ms R and Mr C as well as a transcript of the evidence given by Mr Duncan at his trial.
Professor McFarlane explained that dissociation is a state whereby a person can seemingly be acting in a rational and reasonable way but not have any memory of their behaviour because of the brain’s failure to integrate and retain experience in memory. He said there are multiple reasons why people can dissociate. He described sleep walking as being at one end of the continuum of dissociative phenomena. For example, a sleep walker can walk and carry out supposedly purposeful actions but have no memory of doing so. He referred also to the experience of persons in combat or car accidents who appear fully conscious but suffer amnesia in respect of those events. It can involve people moving from one location to another, whether by walking or driving a car, where they suddenly become aware of being in a particular place with no idea how they arrived there. Notwithstanding that they are in a dissociative state, they could drive perfectly safely but have no recollection of doing so.
Professor McFarlane considered there are a number of possible causes of amnesia. They are intoxication, psychosis and dissociation. So while amnesia is indicative of a dissociative state, its presence is not conclusive.
Professor McFarlane considered that it was possible Mr Duncan was disassociating on the night in question. He could not be more definitive as he was not there. His opinion was very much reliant upon the descriptions given by Ms R and Mr C. Professor McFarlane explained that in reading the statements of Mr C and Ms R, he thought there was a significant degree of confusion on the part of Mr Duncan and that he did not exhibit well goal-directed behaviour. He thought his behaviour somewhat illogical and his statements perplexing, which left him wondering about his state of mind at the time. He considered that the earlier viewing of the swingers website may have triggered disturbing memories of his parents’ relationship. He said that this is the sort of state that sometimes leads to individuals dissociating.
Professor McFarlane diagnosed Mr Duncan as having suffered from a major depressive illness in 2011 following the breakup of a long-term relationship. He considered that his depressive state made him more likely to dissociate. While he accepted that dissociation could be a mental state that occurs in the context of a mental illness, if it occurs in circumstances other than that context, it is diagnosed as dissociative amnesia. Professor McFarlane indicated that he had no reason to think that if Mr Duncan had been dissociating at the time of these events, that occurred in the context of an existing psychosis.
Professor McFarlane was not troubled by Mr Duncan sending a text message to his former partner at 2:13 a.m. Just as people in a dissociative state can carry out very goal-directed behaviour such as driving a car or getting on an airplane, so sending a text message to his former partner did not contra-indicate being in a dissociated state. The fact that he fled the scene did not exclude him being in a dissociated state. On the contrary, Professor McFarlane considered that the fact that he was arrested two days later living at an address close by was consistent with these events having occurred in a state of dissociation where he had no recollection of these events which might cause him to flee to avoid detection.
Professor McFarlane also considered it was possible, given the text message at 2:13 a.m. suggesting he was going to sleep, that he might have woken in a somnambulistic state, which was another possible explanation for his behaviour on the night in question.
Under cross-examination Professor McFarlane conceded that it was possible that during the events of the night in question Mr Duncan had been both conscious and acting voluntarily. However, it was possible for a person in a dissociated state to do and say what Mr Duncan did and said that night. Professor McFarlane accepted it was possible that the evidence of the appellant’s accessing the swingers website was consistent with him having a sexual urge at that time and the subsequent offending is consistent with that sexual urge not being satisfied. He also accepted that the text message sent at 2:13 a.m. by Mr Duncan to his ex-partner saying he was going to sleep was consistent with the actions of a person who was lucid. He also accepted that the appellant’s apparently passive response when confronted by Mr C immediately following the events in the bedroom was consistent with a person who chose not to respond aggressively towards Mr C in an attempt not to further exacerbate the situation. Professor McFarlane accepted that it was possible to characterise the appellant’s conduct as being consistent with a person acting voluntarily, cognisant of his surroundings, who was goal-directed and acted wilfully to seek out his victim.
Evidence was also called from a neuropsychologist, Mr Andrew Rothwell, who testified that on the basis of the results of standard tests he administered in February 2013, he found Mr Duncan suffered some cognitive defects, especially mild to moderate impairment of working memory. However, he did not find any signs of disinhibition, impulsivity, acting inappropriately or poor judgment.
Evidence of intoxication
Evidence was also called from Professor Jason White, who testified that, on the assumption that Mr Duncan’s evidence as to the quantity and timing of his ingestion of alcohol and drugs that night was correct, he would not have been significantly affected by either at the time he entered the house. Professor White thought his blood/alcohol level at 4:30 a.m. most likely would have been between 0.05 and 0.08 grams per litre of blood.
Ground 1: unreasonable verdicts?
Section 353(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act) provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The relevant principles in considering whether a verdict is unreasonable or cannot be supported by the evidence are found in M v The Queen[4] as explained in MFA v The Queen.[5]
Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out that it was once common for expressions such as “unsafe or unsatisfactory”, or “unjust or unsafe”, or “dangerous or unsafe” to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law. Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
(Citations omitted).
[4] [1994] HCA 63, (1994) 181 CLR 487.
[5] [2002] HCA 53 at [25], (2002) 213 CLR 606 at 614 – 615.
In Libke v The Queen[6] Hayne J said[7] the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.
[6] [2007] HCA 30, (2007) 230 CLR 559.
[7] [2007] HCA 30 at [113], (2007) 230 CLR 559 at 596 – 597.

On appeal Mr Duncan submits that, given the evidence of Professor McFarlane and Professor White, it was a reasonable possibility that, at the time of the events the subject of the charges, he was disassociating or sleepwalking.
In relation to the three causes of amnesia, intoxication and psychosis were excluded on the evidence. Professor McFarlane was of the opinion that Mr Duncan was not in a psychotic state at the relevant time. Professor White was of the opinion that Mr Duncan was not intoxicated at the relevant time. The Crown did not call any expert to contradict these opinions. This left only a dissociative state as explaining his amnesia.
The appellant submits that his proved conduct was so unusual and bizarre that the jury must have entertained a reasonable doubt as to whether his conduct was explicable by him being in a dissociative or somnambulistic state. That conduct was evidenced not by the testimony of the appellant but by the testimony of Mr C and Ms R.
In The Queen v Falconer[8] the High Court held that a person is not criminally responsible for an act or omission which occurs independently of the will. Dissociation may warrant a conclusion that the act or omission in respect of which an accused is charged occurs independently of his or her will.[9] The same principle applies where the involuntariness of the act or omission is due to sleepwalking. Deane and Dawson JJ refer to sleepwalking and a dissociative state as examples of “sane automatism”.[10] They said that where an issue of sane automatism is raised by positive evidence (including expert medical opinion) an accused will be entitled to an acquittal if the prosecution fails to disprove sane automatism beyond reasonable doubt.[11]
[8] [1990] HCA 49, (1990) 171 CLR 30.
[9] [1990] HCA 49, (1990) 171 CLR 30 at 76.
[10] [1990] HCA 49, (1990) 171 CLR 30 at 61.
[11] [1990] HCA 49, (1990) 171 CLR 30 at 63.
Accordingly, the question raised by ground 1 of the appeal is whether given the evidence, including, in particular, the expert evidence of Professor McFarlane, the Crown had excluded as a reasonable possibility that Mr Duncan’s conduct was the product of a somnambulistic or dissociative state as a result of which the prosecution has failed to prove his actions were conscious, voluntary and intentional.
Mr Duncan submits that, as the psychiatric evidence was uncontradicted, the possibility that his conduct resulted from a dissociative or somnambulistic state has not been excluded.
The basic duty of the jury is to enter a verdict in accordance with the evidence.[12] It is open to a jury to accept or reject expert evidence as is the case with any evidence. It is open to a jury to reject the evidence of an expert witness, even where that evidence is uncontradicted. However, that proposition is not unqualified. In Taylor v R,[13] Connor and Franki JJ explained that a jury could not reject unanimous medical evidence of the insanity of the appellant, who was found guilty of murder, where there was no other evidence casting doubt on it.[14] However, they said that the jury is not bound to adopt unanimous expert evidence if there is other evidence which can displace or throw doubt on it. Smithers J in a separate judgment observed:[15]
Where the fact in issue is the state and capacity of mind and the only evidence thereof is expert opinion, the jury should understand that where the competence and honesty of the expert are accepted his skill in the area should be respected and should only be rejected for good reasons.
[12] Walton v R [1978] 1 All ER 542.
[13] (1978) 22 ALR 599.
[14] (1978) 22 ALR 599 at 617 – 618. See also R v Gemmil [2004] VSCA 72 at [46], (2004) 8 VR 242 at 252.
[15] (1978) 22 ALR 599 at 610.
In R v Dick[16] Gibbs J said[17] that a jury may reject unanimous medical evidence that an accused person was of diminished responsibility if there is other evidence to support their verdict.
[16] [1966] Qd R 301.
[17] [1966] Qd R 301 at 305.
In my view, there was evidence upon which the jury was entitled to reject the opinion of Professor McFarlane that it was possible that Mr Duncan was in a somnambulistic or dissociative state at the relevant time. In cross-examination Professor McFarlane accepted that there were other possible explanations for Mr Duncan’s conduct at that time which were consistent with him acting consciously, voluntarily and intentionally. I have set this out above. In addition, there was evidence upon which it was open to the jury to disbelieve the appellant’s claim of amnesia at this time and to be satisfied that his actions were conscious and intentional. That evidence is, first, his sending a text message to his ex-partner at 2:13 a.m. which was lucid and rational, second, his use of his mobile phone to access the cuckholding website at 5:34 a.m., about an hour after the charged events, third, the possibility that he had to insert a code to unlock his phone before he could use it,[18] fourth, the fact that his conduct in the bedroom occupied by Mr C and Ms R bore a striking similarity to the content of the websites he had accessed before and after the event, and fifth, his evidence that he arrived at his aunt’s house at 9:30 p.m. on the evening of 23 February 2012 when there was evidence of him sending a text message to his former partner at 9:23 p.m. suggesting he was waiting to start his second rugby game.
[18] The appellant gave evidence that his mobile phone did not have a pin lock / code. In cross-examination it was put to him that at the police station police had to ask him to put in a pin code to access the phone’s contents. The appellant replied that in fact he had put the pin lock / code on the phone while in police custody.
The opinion of Professor McFarlane that it was possible that Mr Duncan’s conduct occurred at a time when he was sleepwalking or in a dissociative state is premised upon his assertions that he had no memory of the relevant events. It was open to the jury to reject the evidentiary foundation for that opinion. That opinion was only as good as the facts upon which it was based. There is nothing irrational, capricious or perverse in the jury reasoning in that way. Accordingly, it cannot be said that the jury must have entertained a reasonable doubt as to whether the appellant’s acts were voluntary and intentional.
I would dismiss ground 1.
Ground 2: fresh evidence
Ground 2 is a complaint that a miscarriage of justice occurred because the jury did not have cogent evidence that, if received, would have increased the possibility of an acquittal. Mr Duncan applies to call by way of fresh evidence, pursuant to s 359 of the Act, evidence relating to an incident which took place in court immediately after the jury delivered its verdict. He wants the court to receive evidence that immediately after the allocutus was administered he collapsed in the dock. Mr Duncan says he has no memory of the allocutus being administered, fainting and being treated by ambulance officers. He also wants the court to receive evidence from Professor McFarlane that these events provide further support for Mr Duncan’s propensity to disassociate.
Section 359 of the Act provides:
For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice—
…
(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness …
In R v Patzel[19] Sulan J explained the basis upon which the court is to exercise the discretion conferred by s 359 as follows:[20]
In exercising the discretion to admit further evidence, the Court is to have regard to two broad considerations: the public interest in the finality of litigation, which requires that all reasonable steps be taken to put all material evidence before the sentencing court, and the probabilities that the further material would have had an important influence on the result of the case.
(Citation omitted).
[19] [2012] SASCFC 108.
[20] [2012] SASCFC 108 at [19].
In R v Dorning[21] the Court identified conditions for the exercise of the court’s discretion to admit fresh evidence as:
(1)Satisfaction that the evidence could not have been obtained with reasonable diligence for the use of the trial;
(2)Satisfaction that the evidence is such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
(3)Satisfaction that the evidence is apparently credible.
[21] (1981) 27 SASR 481 at 485 – 486.
When an appeal is based on fresh evidence it is necessary for the appellate court to consider the likely impact of the evidence on the jury, if the evidence had been led at trial. In Mickelberg v The Queen[22] Mason CJ said that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.[23]
[22] [1989] HCA 35, (1989) 167 CLR 259.
[23] [1989] HCA 35, (1989) 167 CLR 259 at 273.
There is no issue that the evidence could not have been obtained for use at the trial or that the evidence is apparently credible. The issue on ground 2 is consideration of the likely impact of the evidence on the jury. Is it reasonably possible the jury would have acquitted had the evidence been before it? Mr Duncan submits that further evidence that he experienced an episode of dissociation, whereby he was apparently conscious and alert while the allocutus was administered, immediately prior to fainting, and yet has no memory of that occurring, provides cogent evidence of a factual foundation for the expert opinion of Professor McFarlane that it was possible that Mr Duncan’s conduct on the night of 24 February 2012 occurred when he was in a dissociative state. He submits that this evidence provides a jury with a more concrete foundation upon which to find that dissociation was at least a reasonable possibility that night. He submits that the miscarriage of justice lies in the fact that, had the jury known of this evidence, a reasonable jury may have placed more weight on the psychiatric opinion of Professor McFarlane. It may have been the further objective proof that the jury required to accept the defence case as a reasonable possibility. As such, there is a significant possibility that the jury, acting reasonably, would have acquitted Mr Duncan had the fresh evidence been before it at the trial.
In my view there is not a significant possibility that the jury, acting reasonably, would have acquitted Mr Duncan had the evidence of what occurred in court immediately following the delivery of the verdict had been before it. The evidence really does not take Professor McFarlane’s opinion any further. His opinion has not changed. He merely refers to this episode as being consistent with the hypothesis he put forward in the course of his evidence at trial. The jury had rejected that hypothesis as a reasonable possibility. For the reasons discussed earlier, it was open for the jury to have done so. This is not fresh evidence which seeks to place before a jury material the jury had not had an opportunity to consider which might have led it to acquit. The jury had considered the hypothesis put forward by Professor McFarlane and rejected it as a reasonable possibility. Evidence of Mr Duncan fainting does not take the matter anywhere. It is his evidence that he has no memory of the allocutus being administered. That is a matter that goes to the jury’s assessment of his credit and reliability. They are matters the jury has already evaluated. I do not consider that the evidence, if put before the jury, would have caused it to reconsider that assessment in any significant way.
I would grant permission to appeal on ground 2 but dismiss this ground. For reasons I am about to come to, however, this does not matter as the appeal must be allowed on other grounds and a retrial ordered, which will permit Mr Duncan to call this evidence on the retrial should he wish.
Grounds 3 and 7
These grounds concern the summing up on the topic of amnesia.
Ground 3 complains that the summing up as to the evidence of Professor McFarlane was defective in that the judge did not tell the jury that, if they found amnesia was a reasonable possibility, they should find dissociation or sleep walking a reasonable possibility and thus acquit. Further, there is a complaint the judge did not otherwise instruct the jury what they should do with Professor McFarlane’s evidence if they found that amnesia was a reasonable possibility.
Ground 7 complains of the following direction given by the judge:
The fact that Mr Duncan does not later remember what happened does not necessarily indicate that his will did not go with what he did or that he did not hold the necessary intent with respect to each charge.
Mr Duncan submits this was, in the circumstances, a misdirection, in that the jury should have been instructed that the only conclusion from a finding of amnesia, or a finding that amnesia was a reasonable possibility, was, in the light of the psychiatric evidence, acquittal.
It is convenient to address these two grounds together.
The grounds relate to the interaction between amnesia and dissociation. In relation to ground 3, the judge directed the jury as follows:
… [Y]ou are not bound to accept and act upon uncontested expert evidence. On the other hand, you are not entitled to disregard that evidence lightly, or capriciously. You may for instance, reject such evidence if there is other evidence in the case, or facts or circumstances which throw doubt on that evidence. In particular, that can occur when an expert bases an opinion on a view or assumption of the facts which is different from the facts that you find them to be, or that an expert bases an opinion on facts that are not established by the evidence.
In this case the expert evidence for the defence is based at the very least on the possibility that Mr Duncan has no memory of the events in question, and also of course, on some of the objective facts proven as to what happened that night. Should you reject the evidence of loss of memory as a reasonable possibility, then of course, to the extent that the expert evidence depends on that assumption, it would be of no value. On the other hand, if the loss of memory is a reasonable possibility, you must then proceed to carefully examine the expert evidence, bearing in mind that it remains for the prosecution to remove any reasonable possibility that Mr Duncan acted in a dissociative state or sleepwalking state that morning.
You should therefore examine the facts, the history of Mr Duncan’s personal life and the surrounding circumstances of the events and the behaviour of Mr Duncan on the morning in question as you find it to have been, which tends to support or undermine the possibility of dissociation or sleepwalking by him that night. If on the whole of the evidence you consider the analysis of the defence experts is a reasonable possibility, then you should return verdicts of not guilty.
In my view, when read as a whole, this passage of the summing up does not constitute a misdirection.
The direction is consistent with the principles which emerge from Taylor and Dick referred to earlier. In my view this does not constitute a reversal of the onus of proof. More importantly, the jury is directed to focus on whether the facts relied upon by Professor McFarlane, which led him to consider it was possible that at the relevant time Mr Duncan was sleep walking or in a dissociative state, were a reasonable possibility, such that, on the whole of the evidence, the hypothesis of sleep walking or a dissociative state had not been excluded as a reasonable possibility. In that case, the judge directed that they should return verdicts of not guilty. In these circumstances I do not consider there was any real risk of a miscarriage of justice.
The same cannot be said of the other direction of which complaint is made. It is in the following terms:
In the case of each charge it is the defence case that Mr Duncan did not form the required specific intent to commit any of the offences, or that he was acting involuntarily at the time, or at least that the prosecution has not removed the reasonable possibility that he was so acting. This stems from the evidence of Mr Duncan himself, that of Professor McFarlane and that of Mr Rothwell. If that evidence, even if accepted by you, is not such as to be capable of raising a doubt in your minds as to these basic elements, that is the elements of voluntariness, the capacity to form the intention at all, or the actual formation of the specific intent with respect to each charge, you may put that evidence out of your minds in considering the accused’s guilt or innocence but if, on the other hand, the evidence is capable of raising a doubt as to voluntariness or the existence of an actual intent, it is then for the prosecution to remove that doubt and to satisfy you beyond reasonable doubt that the accused acted voluntarily in doing the acts for which he is charged on each count and to remove the reasonable possibility that he was capable of forming, incapable of forming, an intention to commit the charge and that he did so with the actual intent appropriate to each charge as I have defined them for you.
The fact that Mr Duncan does not later remember what happened does not necessarily indicate that his will did not go with what he did or that he did not hold the necessary intent with respect to each charge.
Mr Duncan submits that the effect of the final sentence of this part of the judge’s directions was to leave the jury to understand that even if they considered amnesia to have been a reasonable possibility, that did not necessarily mean that the accused lacked the necessary intent or was acting involuntarily. In other words, the judge told the jury that Mr Duncan could have been amnesic and yet still guilty. On the whole of the evidence there was no scenario where amnesia was possible and yet dissociation or sleep walking could be rejected as not possible because the only other available explanations for amnesia were psychosis and intoxication, both of which were excluded on the evidence.
The Crown submits that the later direction is an entirely orthodox O’Connor direction.
In The Queen v O’Connor[24] Barwick CJ, with whom Aickin and Stephen JJ agreed, explained the proper direction to be given to a jury in cases where evidence of intoxication is admitted as relevant in determining whether an accused had the mental element the law prescribes for the commission of a charged offence. He said:[25]
In my opinion, evidence of the state of the body and mind of an accused tendered to assist in raising a doubt as to the voluntary character of the physical act involved in the crime charged is admissible on the trial of an accused for any criminal offence, whether an offence at common law or by statute. Further, in my opinion, such evidence tendered to raise a doubt as to the actual intention with which the physical act involved in the crime charged, if done, was done is admissible on the trial of an accused for any offence, whether at common law or by statute, with the exception of such statutory offences as do not require the existence of an actual intent, the so-called absolute offences.
As I earlier indicated, however, the jury needs careful and special instruction. If the evidence, if accepted, is not such as to be capable of raising a doubt as to either of the basic elements, voluntariness or actual intent, there being no other material to suggest a lack of voluntariness or actual intent, that evidence can be withdrawn from the jury’s consideration. It will have had no more than a tendency to establish that though the accused acted voluntarily and with the requisite intent, he was influenced in what he did by a state of insobriety. They should be told that if the evidence does not raise in their minds a doubt as to voluntariness or actual intent they may put that evidence out of their minds in considering the accused’s guilt or innocence. But if the evidence is capable of raising a doubt either as to voluntariness or the existence of an actual intent, the jury should be told that if that evidence raises in their minds a reasonable doubt as to voluntariness or actual intent, it is for the Crown to remove that doubt from their minds and to satisfy them beyond reasonable doubt that the accused voluntarily did the act with which he is charged and that he did so with the actual intent appropriate to the crime charged. They should be instructed as to the meaning and scope of voluntariness and as to the precise intent which the crime charged requires. It would be proper in these cases to tell a jury that the fact that a man does not later remember what he did does not necessarily indicate that his will did not go with what he did do or that he did not have the necessary intent.
[24] [1980] HCA 17, (1979 – 1980) 146 CLR 64.
[25] [1980] HCA 17, (1979 – 1980) 146 CLR 64 at 87 – 88.

I accept that the direction of which Mr Duncan complains reflects the terms of the passage from the judgment of Barwick CJ in O’Connor. However, I consider that the application of the last sentence of that passage from the judgment to the facts and circumstances of this case had the real potential to confuse and mislead the jury.
The observations of Barwick CJ upon the proper direction of juries was concerned with cases where evidence of intoxication is admitted. Those observations have to be understood against a background where intoxication is a relative rather than an absolute concept. That this is the context in which Barwick CJ was making his observations is apparent from an earlier passage in his reasons where he addresses the relevance of evidence of intoxication to the issue of whether an accused’s actions were voluntary. He said:[26]
The state of drunkenness or intoxication can vary very greatly in degree. A person may be intoxicated in the sense that his personality is changed, his will is warped, his disposition altered, or his self-control weakened, so that whilst intoxicated to this degree he does act voluntarily and intentionally which in a sober state he would or might not have done. His intoxication to this degree, though conducive to and perhaps explanatory of his actions, has not destroyed his will or precluded the formation of any relevant intent. Indeed intoxication to this degree might well explain how an accused, otherwise of good character, came to commit an offence with which he is charged.
Intoxication to the stated degree might have rendered an accused less aware of what he was doing, or of its quality, significance or consequence. But, if voluntary, his acts remain his: and he intends to perform them. So long as will and intent are related at least to the physical act involved in the crime charged, and saving for the moment the case of a crime of so-called specific intent, the fact that the state of intoxication has prevented the accused from knowing or appreciating the nature and quality of the act which he is doing will not be relevant to the determination of guilt or innocence.
…
If the degree of intoxication produces only those results which I have so far described, that state of intoxication is clearly irrelevant to a consideration of the accused’s criminal culpability …
[26] (1979 – 1980) 146 CLR 64 at 71 - 72.
The Chief Justice went on to say, however:[27]
But the state of intoxication may, though perhaps only rarely, divorce the will from the movements of the body so that they are truly involuntary. Or, again, and perhaps more frequently, the state of intoxication, whilst not being so complete as to preclude the exercise of the will, is sufficient to prevent the formation of an intent to do the physical act involved in the crime charged. It is in connexion with these states of intoxication that the problem raised in this case arises.
It is proper here to remark that lack of recollection, attributable to a past state of intoxication, is not necessarily indicative of either of these states of intoxication. If no more is proved than a credible assertion of a lack of recollection, it is my opinion that an onus to establish the voluntary or intentional quality of what the accused is alleged to have done does not for that reason pass to the Crown. But probably such an assertion of amnesia will rarely stand alone: evidence of the actual state of the accused in relation to sobriety and the manner in which that state has been induced will be forthcoming.
[27] (1979 – 1980) 146 CLR 64 at 72 - 73.
In this context it can be seen that the direction to the jury by the judge that the fact that Mr Duncan did not later remember what happened did not necessarily indicate that his will did not go with what he did or that he did not hold the necessary intent with respect to each charge, carried the real risk of confusing the jury or distracting them from the real issue as to the voluntariness of his conduct.
As the judge had correctly directed the jury earlier in the summing up, the issue was whether the evidence excluded as a reasonable possibility that at the relevant time Mr Duncan was sleep walking or in a dissociative state, such that the prosecution had proved his acts were voluntary. Somnambulism and dissociation are absolute states. The evidence of Professor McFarlane was that amnesia is indicative of dissociation. His evidence seems to imply that the same can be said of sleep walking. As explained earlier, if the evidence left either as a reasonable possibility, Mr Duncan was entitled to be acquitted. The defence was conducted on the basis that dissociation or somnambulism were real possibilities and amnesia was indicative of dissociation. The evidence excluded the possibility of any other cause of amnesia in this case. This was not a case where the jury could have reasoned that even if Mr Duncan had experienced amnesia at the relevant time he could still be found guilty of the offences charged.
At trial the Crown did not suggest that the accused could have suffered amnesia but not been dissociated or sleep walking. The Crown did not seek to exclude the reasonable possibility of either on the basis that the accused had amnesia due to intoxication or psychosis. The Crown case was that the accused did not suffer amnesia. That was the basis upon which the prosecution contended that the jury could reject the evidence of Professor McFarlane.
The direction suggested by Barwick CJ in O’Connor that it would be proper to tell a jury that the fact that a man does not later remember what he did does not necessarily indicate that his will did not go with what he did or that he did not have the necessary intent, is a direction confined to cases of intoxication where it is possible that a person could be so drunk as not to remember what he or she did yet still have possessed the requisite state of mind for criminal culpability. That is not this case. The direction given did not relate to the evidence and the way the trial had been conducted.
As the High Court observed in RPS v The Queen[28], the fundamental task of a trial judge is to ensure a fair trial of the accused. It will require the judge to identify the issues in the case and to instruct the jury about so much of the law as they need to know in order to dispose of the issues in a case and relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. More recently, the High Court in R v Getachew[29] said the judge in a criminal trial must accept the responsibility of deciding what are the real issues in a case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury need to know to decide those issues.
[28] [2000] HCA 3 at [41], (2000) 199 CLR 620 at 637.
[29] [2012] HCA 10 at [29], (2012) 248 CLR 22 at 34 – 35.
That did not occur in this case. The application of the O’Connor direction to this case is a misdirection. In my view it constitutes a miscarriage. Mr Duncan was deprived of his right to a fair trial. I would give permission to appeal on grounds 3 and 7. I would dismiss the appeal on ground 3 but allow the appeal on ground 7. As a consequence I consider that the verdicts of guilty must be set aside and a retrial ordered.
Grounds 4, 11 and 12 – mistake of fact by the accused
Again it is convenient to address these grounds together. Mr C and Ms R gave evidence that, when Mr Duncan was confronted in the bedroom and asked what he was doing there, he replied, “She invited me in”.
Mr Duncan submits that this evidence, combined with the evidence of his accessing websites that night which related to consensual sexual liaisons with other couples, meant that a real issue was raised as to whether he was, if not suffering from dissociation, sufficiently confused such as to believe that he had been invited into the house and, thus, was there with the occupants’ consent.
Mr Duncan submits that this evidence raised the question of whether the ingredient of knowledge of lack of consent could be proved beyond reasonable doubt. He submits this should have been left to the jury irrespective of the fact that at trial he did not put this forward as a defence.
He submits that the judge’s direction: “There is no suggestion that the intruder acted with a lawful excuse in this instance”, wrongly conveyed the impression to the jury that this was not an issue in the trial. In the circumstances, it was necessary for the jury to determine whether the entry into the house and the assault on Ms R was committed by him in the belief she consented to this occurring.
He submits that the issue was sufficiently raised on the evidence and by his counsel at the trial. Accordingly, the judge erred in not leaving it to the jury.
I do not accept this submission.
There was no defence of honest and reasonable mistake of fact. There was no objective evidence at the trial of any communication between Ms R and Mr Duncan prior to the attack in the bedroom. The foundation for a defence of an honest and reasonable belief on the part of Mr Duncan that there was consent to his conduct, which constituted the basis for the charges, is untenable given the absence of any evidence from him that provided a possibility in the evidence for the existence of such a belief. None existed. The absence of evidence of any communication between Ms R and Mr C with Mr Duncan prior to his entering into the bedroom is fatal to this submission. As the High Court said in Getachew:[30]
Only if it had been asserted or evidence had been led at the trial that the accused believed that the complainant consented to the penetration would any further question about the accused’s belief as to consent arise. For absent such an assertion or such evidence, demonstration that the accused knew that the complainant was or might be asleep necessarily demonstrated that he was aware that she might not be consenting. No other possibility was open. That is, absent an assertion or evidence that the accused believed that the complainant had in fact consented to the act of penetration, there was no other possibility – that the accused may have positively believed that the complainant was in fact consenting – open and raised for consideration by the evidence. The jury were not required to exclude a possibility of that kind before returning a verdict of guilt.
[30] [2012] HCA 10 at [35], (2012) 248 CLR 22 at 36.
While Mr Duncan’s counsel at the trial raised this issue with the judge after the completion of the summing up, counsel, following discussion with the judge, did not press the application for any redirection. The issue was not subsequently revisited.
The only relevance of the evidence of Mr Duncan’s statement “She invited me in” was that it evidenced a person in a dissociated state.
Any direction to the jury on this basis would have run the risk of confusing them and distracting their attention from the real issues at the trial. There was no miscarriage of justice. I would refuse permission to appeal on these grounds.
Ground 5
Ground 5 complains of the direction that:
If that evidence, even if accepted by you, is not such as to be capable of raising a doubt in your minds as to these basic elements, that is the elements of voluntariness, the capacity to form the intention at all, or the actual formation of the specific intent with respect to each charge, you may put that evidence out of your minds in considering the accused’s guilt or innocence…
Again, this direction is an application by the judge of the O’Connor direction. The reference to “that evidence” relates to the evidence of Mr Duncan, Professor McFarlane and Mr Rothwell. The effect of the direction is that the jury could accept that evidence but still convict. In my view, this was a misdirection. It was a misdirection for the same reasons that I have upheld ground 7. Given the way the trial was conducted, if the evidence of dissociation or somnambulism was accepted as a reasonable possibility, the jury should have been directed that an acquittal followed. This was the very direction the judge had given earlier in the summing up. This direction could only have confused the jury. Again, the observations by Barwick CJ in O’Connor must be understood as directed to the issue of voluntariness where evidence of intoxication is relevant. Those observations are not readily adaptable to a case of dissociation or somnambulism.
On this basis I consider that permission to appeal must be given, the appeal on this ground allowed and a retrial ordered.
Ground 6
Ground 6 also concerns part of the O’Connor direction complained of in ground 7 where the judge directed the jury:
…[I]f, on the other hand, the evidence is capable of raising a doubt as to voluntariness or the existence of an actual intent, it is then for the prosecution to remove that doubt and to satisfy you beyond reasonable doubt that the accused acted voluntarily in doing the acts for which he is charged on each count and to remove the reasonable possibility that he was capable of forming, incapable of forming, an intention to commit the charge and that he did so with the actual intent appropriate to each charge as I have defined them for you.
As the appeal is to be allowed, it is unnecessary to address this ground at length. It is sufficient to note that the terms of the direction “he was capable of forming, incapable of forming, an intention to commit the charge” are obviously contradictory and ambiguous. It may have been clear to the jury that the judge mis-spoke and was correcting himself, but as the matter must be retried, I do not need to consider this further.
Ground 8
This ground complains of the judge’s direction:
Accordingly, you must have regard to the effect of the personal history and the ingestion of drugs and alcohol occurring before the charged offence on Mr Duncan’s mind and in the past, in determining whether he possessed the requisite intent. If intent is proven voluntariness is necessarily proven. If intent is not proven, a verdict of not guilty results irrespective of the question of voluntariness.
The last two sentences of the direction are taken from the judgment of King CJ in The Queen v Tucker.[31] King CJ said:[32]
In trials of charges of which intent, either basic or specific, is an ingredient, where there is evidence of intoxication, it is necessary for the judge to direct the jury to have regard to the effect of intoxication on the accused’s mind in determining whether he possessed the requisite intent. If intent is proved, voluntariness is proved ipso facto. If intent is not proved, a verdict of not guilty results irrespective of voluntariness. In all such cases a direction as to the effect of alcohol on the existence of volition is unnecessary and could well confuse the jury. Only in the rare case in which there can be criminal liability for an unintended act or omission, and there is evidence of drunkenness to a degree which could raise a doubt as to whether act was accompanied by will, is it necessary for a trial judge to direct as to the effect of intoxication on the voluntary character of the act. In my opinion a jury should not be troubled with the difficult psychological distinction between volition and intention unless the facts of the case require that distinction to be made.
[31] (1984) 36 SASR 135.
[32] (1984) 36 SASR 135 at 139.
In my view the two sentences from Tucker adopted by the judge in his direction to the jury were unnecessary and liable to confuse the jury. The observations of King CJ, like the observations of Barwick CJ in O’Connor, are directed to cases where intoxication is relevant to whether the prosecution has proved the requisite state of mind on the part of an accused for the commission of an offence. The direction to the jury introduced the distinction between volition and intention. It was not a matter with which the judge should have troubled the jury in this case, when the issue was not the relevance of intoxication but dissociation and somnambulism. King CJ’s warning in this regard in Tucker should have been heeded.
I would also give permission to appeal and allow the appeal on this ground.
Ground 9
Ground 9 complains that the directions as to how the jury should use the evidence of Professor McFarlane were inadequate.
In the circumstances, it is unnecessary to address this ground.
Conclusion
I would grant permission to appeal on grounds 2, 3, 5, 7 and 8. I would allow the appeal on grounds 5, 7 and 8. I would set aside the verdicts of guilty. I would order a retrial on the Information.