R v Duncan

Case [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…

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AGLC
R v Duncan [2015] SASCFC 191
Case
[2015] SASCFC 191
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Duncan against his conviction. The dispute centred on whether Mr Duncan was acting consciously, voluntarily, or intentionally at the time of the offending, given his defence of dissociation or sleepwalking. The appeal was heard by Sulan, Peek and Stanley JJ.

The legal issues before the court included whether the verdict was unreasonable or insupportable having regard to the evidence, whether fresh evidence should be admitted, and whether there had been misdirection or non-direction by the trial judge. Mr Duncan’s defence was that he had no memory of the events due to an episode of amnesia, potentially caused by alcohol and drug consumption, or a dissociative state or sleepwalking. Uncontradicted psychiatric evidence was presented from Professor Sandy McFarlane, who explained dissociation and its potential causes, including intoxication, psychosis, and dissociation itself. Professor McFarlane considered it possible that Mr Duncan was disassociating, noting confusion and illogical behaviour described by witnesses, and suggested that viewing a particular website may have triggered disturbing memories, potentially leading to dissociation.

The court considered the grounds of appeal, including those relating to the unreasonableness of the verdict and the admission of fresh evidence. The court ultimately granted permission to appeal on several grounds and allowed the appeal on grounds relating to the unreasonableness of the verdict and potentially fresh evidence. The verdicts of guilty were set aside, and a retrial was ordered.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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