R v Mendis - [2024] NSWDC 420

District Court

New South Wales

Medium Neutral Citation: R v Mendis [2024] NSWDC 420
Hearing dates: 27 August 2024 – 9 September 2024
Date of orders: 13 September 2024
Decision date: 13 September 2024
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Verdicts of not guilty

Catchwords:
Sexual offending; multiple child complainants; Judge alone trial; defence of automatism.

Legislation Cited:
Crimes Act 1900
Criminal Procedure Act 1986 (NSW)

Cases Cited:
KRM v The Queen (2001) 206 CLR 221
R v DB [2022] NSWCCA 87
R v Falconer (1990) 171 CLR 30; [1990] HCA 49
R v Markuleski (2001) 52 NSWLR 82
Velevski v The Queen (2002) 187 ALR 233; [2002] HCA 4

Category: Principal judgment
Parties: Aaron Mendis (the Accused)
Director of Public Prosecutions (NSW) (the Crown)
Representation:
Counsel:
Mr D Carroll (the Accused)
Mr J Tunks (the Crown)
Solicitors:
Ms S TambyRajah (the Accused)
Ms L Vander Reest (the Crown)

File Number(s): 2021/00161244, 2021/00161263 & 2022/00070993
Publication restriction: Pursuant to s578A of the Crimes Act 1900 and s15A of the Children (Criminal Procedure) Act 1987 the names of the complainants or any matter which is likely to lead to the identification of the complainants, must not be published.

JUDGMENT

Introduction

Upon arraignment on 27 August 2024 the accused pleaded not guilty to the following 15 Counts on the Indictment:-

Between the 31^st day of December 2014 and the 12^th day of May 2015, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of the age of 14 years, in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis.

Between the 31^st day of December 2014 and 12^th day of May 2015, in Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of the age of 14 years in circumstances of aggravation, to wit, JR was under the authority of Aaron Mendis.

Between the 31^st day December 2014 and the 12^th day of May 2015, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of the age of 14 years in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis.

Between the 31^st day December 2014 and the 12^th day of May 2015, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of the age of 14 years in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis.

Between the 31^st day December 2014 and the 12^th day of May 2015, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of or above the age of 14 years and under the age of 16 years, namely, a person of the age of 14 or 15 years, in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis.

Between the 31^st day of December 2014 and the 12^th day of May 2016, at Castle Hill, in the State of New South Wales, did assault JR, a person then under the age of 16 years, namely, 14 or 15 years and immediately before or at the time of such assault did commit an act of indecency on the said JR.

Between the 31st day of December 2014 and the 12th day of May 2016, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of or above the age of 14 years and under the age of 16 years, namely, a person of the age of 14 or 15 in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis.

Between the 31^st day of December 2014 and the 12^th day of May 2015, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of or above the age of 14 years and under the age of 16 years, namely, a person of the age of 14 or 15 years, in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis.

Between the 31^st day of December 2014 and 12^th day of May 2016, at Bella Vista in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of or above the age of 14 years and under the age of 16 years, namely, a person of the age of 14 or 15 years, in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis.

Between the 31^st day of December 2015 and the 5^th day of May 2016, in Dulwich Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person above the age of 14 years and under the age of 16 years, namely, a person of the age of 14 or 15 years in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis.

Between the 31^st day of December 2015 and the 5^th day of May 2016, in Dulwich Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person above the age of 14 years and under the age of 16 years, namely, a person of the age of 15 years in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis.

Between the 2^nd day of May 2016 and the 5^th day in May 2016, in Dulwich Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person above the age of 14 years and under the age of 16 years, namely, a person of the age of 15 years, in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis.

Between the 31^st day of December 2016 and the 1^st day of January 2019, at Kings Langley in the State of New South Wales, did assault MM, and at the time of the assault committed an act of indecency on MM, namely, placed MM's hand over Aaron Mendis' penis, in circumstances of aggravation, namely, at the time of the offence MM was under the authority of Aaron Mendis.

Between the 1^st day of December 2012 and the 1^st day of March 2013, at Coledale, in the State of New South Wales, did assault ES, a person then under the age of 16 years, namely, 13 years and immediately before or at the time of such assault did commit an act of indecency on the said ES.

Between the 31^st day of December 2013 and the 1^st day of April 2014, at Coledale, in the State of New South Wales, did assault ES, a person then under the age of 16 years, namely, 14 years and immediately before or at the time of such assault did commit an act of indecency on the said ES.

On 7 August 2023 the parties had filed an election to proceed to trial by Judge alone and an order was made for a trial by Judge alone pursuant to s132 of the Criminal Procedure Act 1986 (NSW).
Counts 1 to 12 on the Indictment involved allegations of sexual misconduct including sexual intercourse and indecent assaults against the same complainant, JR. Count 13 involved an allegation of aggravated indecent assault against another complainant, MM.
Counts 14 and 15 concerned allegations of indecent assaults upon a third complainant, ES. At the time of the allegations in each count on the Indictment, the accused was a youth leader at a church, and each of the allegations is said to have occurred in activities relating to his church’s youth group at sleepovers at various premises, including that of the accused, or on camping trips (Counts 14 and 15).
At the commencement of the trial the Court was informed that there was no issue between the parties as to the age of each complainant at the time of each of the alleged offences, nor was there an issue in respect of Counts 1 to 13 that the accused was in a position of authority.
The Court was further informed that there would be no dispute between the parties that there was physical contact between each of the three complainants and the accused and the evidence was capable of establishing the act of sexual intercourse or the indecent assault alleged in each count on the Indictment. The Court was informed that the issue between the parties was whether each of the acts was carried out voluntarily by the accused.
The Court was further informed that the accused suffered from a psychological condition and had been diagnosed with sexsomnia. The accused relied on a report from Dr A Fernando dated 27 February 2022 to establish that the accused did suffer from that condition. The Crown relied on two reports from Dr J O’Dea dated 29 August 2023 and 7 September 2023. The expert evidence is summarised below, however from the outset of the trial it was made clear that the live issue was whether the accused’s actions were attributable to his sexsomnia whilst he was asleep. If so, his actions were not voluntary and this would constitute a complete defence unless the prosecution could, beyond reasonable doubt, negate this defence of automatism.
My summary of the evidence in the Crown case, but for the expert evidence, is Annexure A to this judgment.

Overview of the Crown case

In April 2012 the accused was appointed as a youth minister at Rivers Edge Church in Newington. The complainant in Counts 1 to 12, JR, met the accused at a school camp in 2013. In 2014 when JR was 14 years old, he joined the youth group led by the accused. JR was in year 8 at school and youth group meetings were held on Friday evenings. Following those meetings a number of sleepovers were held at the homes of people attending the meetings or the youth leader’s home.
Count 1 concerned an allegation during such a sleepover which occurred at the home of a youth leader, Aywan Suleiman. JR, the accused and Suleiman slept in the same bed. The accused was sleeping behind JR and during the night the complainant could feel the erect penis of the accused pressing against his lower back. The evidence established that the complainant moved his hand inside the accused’s shorts and took out the accused’s penis. The complainant then lowered his shorts and underwear and inserted the accused’s penis into his anus. The intercourse continued until the accused ejaculated inside the complainant’s anus.
Count 2 concerned a second occasion at a sleepover at the same home during which the complainant JR performed fellatio on the accused.
Counts 3 and 4 concerned two allegations involving the accused having penile-anal sexual intercourse with the complainant during the same sleepover.
Count 5 concerned an allegation on another occasion where the complainant attended a sleepover at the same home during which penile-anal intercourse took place.
Count 6 concerned an allegation in the morning following the sleepover referred to in Count 5 which involved the accused fondling the complainant’s genitals on the outside of his clothing.
Count 7 concerned a further sleepover at the same home during which penile-anal intercourse allegedly took place.
Count 8 concerned yet another allegation of penile-anal intercourse, at the same home during another sleepover.
Count 9 concerned an occasion at the accused’s home when a sleepover took place involving the complainant, the accused and Aywan Suleiman. The complainant was asleep in the accused’s bed when penile-anal intercourse allegedly took place.
Count 10 concerned an occasion at the complainant JR’s home when during a sleepover the complainant again allegedly had penile-anal sexual intercourse with the accused while the complainant was sitting on top of the accused.
Count 11 concerned a subsequent sleepover at the complainant’s home when it is alleged penile-anal intercourse took place.
Count 12 concerned an occasion in May 2016 at the complainant JR’s home when he was 15 years of age. During the sleepover it is alleged that penile-anal intercourse took place. On this occasion the Crown case is that during the intercourse the complainant heard BI wake up causing the complainant to freeze, and the sexual intercourse to stop, following which the sexual intercourse continued.
Count 13 concerned the complainant, MM who joined the youth group when he was 13 years old in 2015. Following a youth group meeting the complainant held a sleepover at his home during which the complainant woke up lying on his left side facing the accused who was lying on his back. The complainant’s right arm was stretched out and the palm of his right hand was on the accused’s genitals on the outside of his clothing. The complainant pulled his hand away and said the accused’s name however the accused did not respond. The complainant was falling back to sleep when he felt the accused grab his right hand and place it back on the accused’s genitals on the outside of his clothing.
Counts 14 and 15 concerned the complainant ES who was also a member of the youth group. Count 14 concerned an occasion when the complainant went camping with the accused and Suleiman at Coledale beach. During the evening the complainant awoke to find the accused touching his genitals. Count 15 concerned an occasion a year later on a second camping trip when the same conduct occurred.

Expert evidence in the trial

Prior to the close of the Crown case and by agreement between the parties the following expert evidence was called in the trial.
Exhibit 5 was a report by Dr A Fernando dated 27 February 2022 relied on by the accused. Dr Fernando was qualified with numerous witness statements, not all of whom were called to give evidence in the trial. He was also qualified with the Court Attendance Notices and the NSW Police factsheets. Dr Fernando’s qualifications were not challenged. He is a consultant Psychiatrist and sleep specialist registered with the Medical Council of New Zealand. He had been a senior lecturer in psychiatry at the University of Auckland from 2000 to 2020 and had trained as a sleep specialist at the University of Pennsylvania. He had published a number of papers on the diagnosis and treatments of sleep disorders including a case study on sexsomnia and a paper titled “Forensic Evaluation of Sexsomnia” published at The Journal of the American Academy of Psychiatry and the Law in March 2021. He had also provided expert witness evidence in cases of sexsomnia and parasomnia in New Zealand and Australia for both prosecution and defence cases and he adopted the expert witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW).
Dr Fernando was asked to address the following questions:-

Is the client likely to have suffered from sexsomnia, or any other parasomnia episode(s) at the time of the commission of these offences?

If so, on what basis have you reached the conclusion our client suffered from the condition?

What are the likely causes of that condition?

How long before the commission the offence did our client suffer from the condition?

Did the condition contribute to our client’s involvement in the commission of the offence, and if so, how and why?

Does our client suffer from the condition now?

What type of treatment is available and what would be the recommended treatment plan?

In his report Dr Fernando gave an overview which included a general discussion of parasomnia behaviours including sleep walking, sleep talking, sleep terrors, nightmares, sleep eating, teeth grinding and sleep sex. He noted that sexsomnia is a specific parasomnia behaviour recognised in the Diagnostic and Statistical Manual under the diagnosis “non-rapid eye movement sleep arousal disorders”. He noted that triggers for sexsomnic episodes include alcohol, recreational drug use, sleep deprivation, fatigue, sleep disruption and psychotropic medications and “the majority of patients have a history of current or prior sleep walking, sleep talking or sleep terrors”. He noted that most sexsomnia patients do not have any recall of sexual episodes with 96% reporting complete amnesia for the episode. He reported that patients do not often attempt to conceal their actions and are typically upset when they become aware of them.
Dr Fernando opined that the diagnosis of sexsomnia requires a thorough clinical history, sleep history and collateral history as well as an overnight sleep study for EEG and video monitoring. He noted however that NREM parasomnic behaviours are rarely captured in sleep laboratories. Dr Fernando interviewed the accused on two occasions on 5 and 12 February 2022, taking a detailed sleep history. The accused reported that he had always been a good and deep sleeper and could sleep up to 12 hours. He reported that he tends to fall asleep quickly and is difficult to wake up, needing several alarms. He also grinds his teeth at night and has been told that he talks in his sleep. He also reported that he had been told that he moved a lot in his sleep noting that he jerks, kicks and performs quick movements. He denied any sexual or inappropriate activities at sleepovers that he had attended. He had no recall regarding the sexual offending alleged by the complainants.
Dr Fernando took a detailed sexual, family, and psychiatric history and under the heading “Collateral history” detailed accounts provided to him in interview by the accused’s parents, his girlfriend and four other friends which supported the sleeping habits reported by the accused.
Dr Fernando also summarised an overnight sleep study performed on the accused on 18 October 2021, a report of which became Exhibit 6. During that study the accused had slept for 85.7% of the time, but when in deep sleep three abrupt arousals were seen with vocalisation. This was described as “very brief awakenings accompanied by making sounds, while he was in deep sleep”. The sleep physician Dr Ng concluded that this finding was supportive, but not conclusive of a non-REM parasomnia. Dr Fernando also noted that the accused had been examined by a dentist, Dr Sainath on 23 February 2022 who reported that the accused suffers from habitual clenching of his teeth. A provisional diagnosis of bruxism was made and a mandibular occlusal soft splint was made.
Dr Fernando reported in great detail statements made by various witnesses consistent with parasomnia explaining the offending by the accused which I will not rehearse but are set out in my summary of the evidence. He also set out three comments in the various witness statements that were not fully consistent with parasomnia to the effect that the accused had talked, suggesting consciousness or awareness on his part whilst engaged in some of the inappropriate conduct. These included the evidence of JR on the occasion one morning when he alleged both of them were caressing each other on the genitals on the outside of their clothing and the accused was falling in and out of sleep. JR reported that he knew the accused was falling in and out of asleep because between dosing off the accused was responding to JR and Aywan. For example, the accused responded to Aywan when asked if he wanted breakfast. JR went on to describe the accused “falling in and out of sleep and was going between quiet and then talking”.
Dr Fernando noted that JR had provided an earlier statement in which he had stated that the accused never said a word to him during any of the sexual activity.
Having summarised a number of additional witness statements Dr Fernando then provided his own summary of the case. In relation to the accused’s sleep he opined:-

“What is unique in his case is that observations were made by multiple friends he has had countless sleepovers with for many years. He has no awareness of his peculiar sleep behaviours whilst they were occurring, and most people have dismissed it as just normal for Aaron.”

Dr Fernando went on to note that the accused’s parents both talk in their sleep and grind their teeth and his brother also talks and moves extensively during his sleep. He also referred to the overnight sleep study and dentist report referred to above. In relation to the multiple offences Dr Fernando opined that on the basis of the statements of JR and MM, the accused was asleep when the offences occurred. There were no statements strongly suggestive of the accused being fully conscious during the sexual misconduct and the offences occurred when he was in close proximity to the victims, this being a trigger for sexsomnia activities. Further the accused consistently denied awareness or recall of the events and when confronted by MM’s father regarding the incident he had no recall of it, was remorseful and willing to inform his superior about it. Dr Fernando opined, “his transparency, lack of concealment and willingness to address the incident are common features in genuine cases of sexsomnia”. He went on to opine:-

“The incidents occurred when other people were around which suggests that Aaron might not have been situationally aware when the sexual incidents took place.
Given his tendency to sleep deeply and not easily wake up it is possible that Aaron remained asleep when JR engaged him in various sexual behaviours.”

Dr Fernando noted that participating in sexual relations was inconsistent with the accused’s Christian beliefs and in his conscious or awake life he had abstained from sexual relations with “other people” including his partner of 5 years.
Under the hearing “Diagnosis” Dr Fernando opined as follows:-

“Aaron’s symptoms are suggestive of NREM parasomnia, specifically sleep talking (somniloquy) and sexsomnia or sleep related sexual behaviour. He also had bruxism, another type of parasomnia, which has been associated with sexsomnia. It is common for patients suffering from one type of parasomnia to have other types of parasomnias.

Typically, sexsomnia behaviours are overt sexual behaviours including fondling, masturbation, sexual intercourse and sexual vocalisations. In Aaron’s case, the behaviours commenced mostly with hugging, and some sexual touching. Intercourse occurred when JR facilitated the process.

Parasomnias at least in the form of sleep talking and bruxism are common in Aaron’s family. Familial tendency for parasomnias has been documented but the actual genetics are still unclear.

His overnight sleep study confirms findings that suggest the presence of NREM parasomnia.

Dentist made a provisional diagnosis of bruxism, another type of parasomnia.”

Dr Fernando addressed the questions outlined above. He opined that he had “no doubt that Aaron suffers from parasomnias including sleep talking, bruxism and sexsomnia”.
The basis for his opinion was that he fulfilled the criteria for a diagnosis of sexsomnia under DSM-V including recurrent episodes of incomplete awakening from sleep (in the form of hugging and sexual touching), no or little dream imagery recalled and lack of recall of the events. The events were not attributable to the effects of a substance. There are no coexisting mental or medical conditions to explain the episodes. His overnight sleep study shows findings suggestive of NREM parasomnia.
As to the likely cause of the condition Dr Fernando stated that parasomnias including sexsomnia are still poorly understood brain processes. He stated that NREM parasomnias tend to run in families and have a strong genetic basis and that the accused is at “high risk to experience NREM parasomnia as both his parents and his brother have parasomnia symptoms”. He also noted that the offender had symptoms of NREM parasomnia since he was a young boy.
Dr Fernando went on to opine that the complainants’ statements strongly suggested that the accused was asleep when the offences occurred. There were no suggestions that he was fully conscious when the incidents occurred, he had no recall of the events and his behaviours when confronted were typical for genuine sexsomnia patients.
Dr Fernando went on to opine that the accused was still at risk of engaging in similar sexual behaviours and he set out recommendations for treatment noting that the main intervention is mainly preventive by avoidance of being in close proximity to any future sexual partner.
In his evidence-in-chief, Dr Fernando was asked whether evidence given by JR in the trial impacted upon the opinions expressed by him in his report. He gave the following evidence:-

Q. Can you assume that during both anal intercourse and oral intercourse that there was an observation by JR that the accused was moaning and groaning. Now if you assume that fact, does that impact upon your conclusions as to sexsomnia?
A. No.
Q. Why is that?
A. A couple of factors. Mr Mendis has been known to be quite vocal, even in his sleep, and in general people who are in - people who are having a sexual episode in a sexsomnia spell can also make verbal sounds.
Q. Including, can I paraphrase, sounds of pleasure?
A. Yes.
Q. Can you assume also that during an act of intercourse where JR was straddling the accused JR observed that the accused moved his head from side to side. On those factual assumptions does that change your opinion in relation to whether that intercourse could be explained by sexsomnia?
A. It does not change my opinion.
Q. Why is that?
A. People when they engage in sexual activities while they're asleep can involve a lot of other motor movements. Movements of arms, legs, body parts, which can be which is part of the whole process and they can remain asleep.

Dr Fernando was asked about evidence given by JR concerning an incident in which the sexual activity was interrupted by another person at the sleep over. He gave the following evidence:-

Q. Doctor, can you assume that sexual intercourse has commenced by JR inserting the penis of the accused into his anus, and during that activity this occurs, and I'll just read out the evidence.
"I remember we were covered by a blanket and so things were quite hidden. But BI had propped up at night and looked very much awake, and so we - this was in the middle, straight in the middle of having sex, and so we both physically froze. The thrusting stopped, I stopped and once he laid back down he - he propped up like upright and then lay back down, and once he lay back down he continued until he ejaculated"

So I've just read out to you some evidence of JR. In your expert opinion, this scenario of sex ceasing while someone propped up, what are the ways in which that could be explained?
A. So different possible explanations. Number 1 it is possible that at that time both were conscious and alert, and that when they sensed someone move that they stop consciously, so that's one possibility. However, even in sexsomnia cases there have been reports of sexual activities abruptly stopping in the middle of a sexual activity. In fact some partners will report that their husband just suddenly became frozen, and then later on will start again, so the stopping/starting phenomena is also consistent with sexsomnia.
Q. Moving from that, can I also ask you to provide your expert opinion of the topic of consciousness and sleep and awareness, can I just ask you about that concept and if you could explain it to his Honour the issue in terms of to what extent a person is conscious during a potential sexsomnic event?
A. Yes, so most people perceive consciousness or wakefulness in sleep as two totally different modes of existence, like it's either you're awake or you're asleep. In reality even when we're awake there are different levels of alertness and consciousness as well. And also when we're asleep there are different levels of depths of depth or degrees of sleep and consciousness as well. So for example it's not about consciousness while we're awake. When we're awake not all of us are actually awake to the same degree as others, so some people can be very hyperalert, very aware of everything that's going on, and then some people who are awake are just sort of awake and barely awake and just close to nodding off. So even when we're awake there are different levels of consciousness.

Dr Fernando gave evidence concerning the various stages or cycles of sleep involving REM and non-REM, explaining that at non-REM stages of sleep there can be a degree of awareness but not full consciousness. He gave the following evidence:-

Q. The degree of awareness could include reacting to movement around you?
A. Yes. In fact more than movement, some people with non REM parasomnias actively get up, they walk. They don't bang into things. Some people drive, some - I have a friend who has non REM parasomnia and he would sleep bike to the gym at 2 in the morning. What that shows
Q. When you say, "sleep bike" - yes.
A. Yes, so what that shows is when someone is in a non REM parasomnia state they're still aware of surroundings. Some people even cook, some people eat, so they can perform a lot of automatic behaviours but there's no full control and no full consciousness, so they can react. If there's a car they can stop, or if there's a fridge, they know there's a fridge, they'll open the fridge, open the packet of chicken and eat all of it, and then go back to bed with a trail of bones and skin, and no recollection at all, but they can navigate, they can interact with the environment, so they are still receptive to stimulus but there's no full consciousness, meaning the smart part of the brain that helps us make decisions, rational decisions, helps us engage in decent conversations, that part of the brain is switched off, whereas the more primitive part of the brain involved in reaction, in engaging in automatic behaviours like sex, eating, dressing up, walking, that's alert, that's alive or engaged.
Q. Returning back to the evidence of JR in terms of the possibilities, can I now paraphrase your evidence:(1) that there was consciousness (2) that the stopping of sex during a sexsomnic event is something which happens or been observed to happen regularly and, third, is that there remains potentially a level of consciousness during a sexsomnic event?
A. Yes.

Dr Fernando gave the following evidence concerning initiation by JR of the sexual activity:-

Q. Can I ask you about another assumption which could feed into your response? Can you assume that in terms of all of the sexual activity between JR and the accused, the evidence is that whenever anal sex occurred and whenever oral sex occurred, it was always initiated by JR insofar as if anal sex was to occur he would pull the penis of Aaron Mendis out his pants and commence intercourse, the same with oral intercourse, that it would always be JR who would remove the penis and commence the sexual activity. Upon that assumption, how does that impact upon your conclusion as to the likelihood of sexsomnia explaining the sexual activity?
A. So that pattern of behaviour is consistent with sexsomnia, however, I also have to mention that in many sexsomnia cases the patient is the one who also instigates, so in some cases it's the partner but in some cases it's actually the sexsomnia sufferer. For me, whoever initiates it doesn't matter much as to whether it's sexsomnia or not, if that makes sense.
Q. Can you also assume that if JR did not pull out the penis of Aaron Mendis and initiate the sex, there would be no sexual activity notwithstanding they slept nearby? Can you assume that fact?
A. That's likely given the pattern of sleep behaviours that Aaron has displayed throughout the different interactions with other people, so the good thing in Aaron's case is we have so many reports from different people, which suggests a similar pattern of his sleep, which is he's a very deep sleeper, he hugs, he does a lot of movements, but none that we know of are cases where Aaron initiated a sexual activity, so in JR's case, it sounds like he was the one who initiated it, so it appears from the pattern of behaviour that Aaron was someone who has a lot of parasomnia activities but does not initiate himself the sexual activity.

Dr Fernando gave the following evidence about triggers for a sexsomnic event:-

Q. Is it your opinion, based on your study, research and experience, that touch can be a trigger to a sexsomnic event?
A. Physical touch is one of the most identified triggers for sexsomnia. In fact in many cases, not all, but in many cases the sexsomnia sufferer is sharing the bed with someone and the touching then triggers the sexual activity.

In relation to the reports of the accused talking during the incident reported by JR when they were touching each other’s genitals outside clothes in the morning Dr Fernando gave the following evidence:-

A. Yes, so talking is an interesting phenomena during a sexsomnia case because it can hint or it can suggest full consciousness, so when people I'm not talking about this case, but I'll just give you the background, so in a lot of sexsomnia cases, people who have sexsomnia who do not have a history of sleep talking usually do not engage in conversations during the sexual activity while asleep. However, for people who have a history of sleep talking, talking during the sexual activity can mean (1) that they are fully conscious and they're engaging verbally, intellectually, or it's just a manifestation of another symptom of parasomnia, which is sleep talking.
For me as an expert what's crucial is knowing what type of conversation they had, so if it was short exchanges for me that doesn't mean much if the sufferer or the sexsomnia sufferer has a history of sleep talking. However, if the conversation appears deep or conscious and prolonged then that then suggests consciousness on the part of the sexsomnia sufferer.

Dr Fernando was asked about the significance of sleep studies in diagnosing the likelihood of a parasomnia, and gave the following evidence about the accused’s sleep study:-

What's interesting in accused's case was they actually captured something which we don't see a lot. So in his study he was shown while in deep sleep he had three abrupt arousals with vocalisations which suggests that he has symptoms of non REM parasomnia and that's rarely captured. In fact I don't see a lot of that with my - with most of my parasomnities so that's a very - that's an objective finding that Aaron has non REM parasomnia symptoms. And again going back to Aaron's case, he - it proves the report of others that he's a sleep talker, and that he makes vocalisations when he's asleep because he did that while he's in deep sleep while having the sleep study.

He gave further evidence that the sleep study showed the accused had abnormal findings during the non-REM phase.
Dr Fernando confirmed his opinion that he had no doubt that the accused suffers from parasomnias including sexsomnia and confirmed his evidence that the additional aspects of JR’s evidence referred to above did not change his conclusions.
Dr Fernando was cross-examined about parasomnia as a sleep disorder generally and confirmed that sexsomnia is within the spectrum of parasomnias predominantly occurring in non-REM sleep. He confirmed that sexsomnia is a variant of what was referred to as “confusional arousals and sleep walking”. He agreed that sexsomnia can manifest itself in various ways from sleep masturbation to sleep moaning and vocalisations to fondling and full sexual intercourse.
Dr Fernando identified his familiarity with a paper issued by Dr Schenck in 2015 titled “Update on Sexsomnia, Sleep Related Sexual Seizures and Forensic Implications”. He identified Dr Schenck as the world’s leader in parasomnia research and that in 2015, 53 cases of sexsomnia were reported in peer review studies in the world. He agreed that the body of research was not large and the condition was relatively rare.
Dr Fernando identified all of the triggers considered to increase the likelihood of sexsomnia referred to by him in his report and agreed that none of those triggers were reported to him by the accused. He agreed that one of the triggers is sharing a bed with someone regardless of the relationship with that person which was in the material that he had been provided.
In relation the accused’s family history Dr Fernando agreed that bruxism or teeth grinding was a feature of a parasomnia but not indicative of sexsomnia. He gave the following evidence:-

Q. Again, this might be trite and just for completeness, a familial history of parasomnia of itself is not an indicator of sexsomnia?
A. Not necessarily, but can I comment on that?
Q. Yes, of course.
A. If there is a family history of parasomnia then there's increased likelihood of parasomnia in children, and the parasomnias can actually be in different forms, so you can have parents who are sleep talkers and then the child will not have much sleep talking but will have sleepwalking, so it's not a clear continuation of the same type of parasomnia. I think it just increases the risk of a child to have a parasomnia condition but the actual type might be different.

Dr Fernando agreed that the fact that the accused was a long sleeper, sleeping up to 12 hours was not indicative of a parasomnia nor was the evidence that he found it difficult to wake up indicative of a parasomnia. Talking in his sleep was indicative as was his partner’s observations that he jerked and kicked in his sleep. He agreed that none of those things are necessarily indicative or conclusive of sexsomnia.
Dr Fernando was cross-examined about the basis of his assessment of the accused as follows:-

Q. But, of course - and I mean this with no disrespect to anybody - it's a simple or trite fact, is it not, that you or anyone making an assessment and giving an opinion, can only be guided by Mr Mendis' self reporting about that; that's fair to say?
A. Yes, and to have a better picture, part of my assessment is to make sure I interview as many collateral historians as possible.
Q. Yes, and I'll ask you about that directly, sir. I'm going to ask you about one of the incidents with JR, and it's in the material that you were sent the transcript. I'll just read to you what the evidence was. I asked JR this question, "What kind of sex - go on?" and what he was talking about, the context of anal intercourse. JR said, "Same sort of routine but as sex finished and he had" this is Mr Mendis "ejaculated before either of our clothes were properly put on he pulled away and immediately got up and went to the bathroom." If you need more information or context, please, let me know, but you'd agree that that appears to be a description of a sexual act and then, in short order, following a sexual act Mr Mendis gets up and goes to a specific place. What do you say about that evidence in regard to your observation?
A. So there are a few possibilities. One is Mr Mendis was fully conscious the whole time and after the activity got up. That's one possibility. Another possibility is that it's all that he was still under some degree of sleep because that can happen, people actually get up and do things. Another possibility is that he had a sexsomnia episode then woke up, because people do wake up, went to the toilet and that's a different state of consciousness either time. So those are three possibilities that can explain that scenario.

Dr Fernando was then asked:-

Q. But if I come back to what I was asking you about at T44.15, on its face, "But as sex finished and he ejaculated before either of our clothes were properly put back on he pulled away and immediately got up and went to the bathroom." Do I take it again I don't want to labour the point, but it's consistent with the first two options, that he was awake and conscious or that he was still asleep?
A. Yes, so it's possible that - yes, so it doesn't actually say much to me, it doesn't give me a lot of clues.

Dr Fernando was cross-examined about his inclusion in his report about matters concerning the accused’s religious belief system and whether that factored into his conclusion. He gave the following evidence:-

Q. So do you say it doesn't really have any effect, or doesn't play a role in you forming an opinion about these events?
A. Not really, sir. Yeah. Because what's - from my experience people can have strong beliefs about sex, for example that, and I'm not talking about this case, but they can have a strong belief that they should not have sex before marriage. But in their sexsomnia activities they're quite active sexually. But in terms of their wakeful state they actually will say, "that can't happen, that's not me". So what I'm saying is the sexual behaviours of a sexsomnia sufferer can be very different from their awake preferences in terms of sexual activity or - or ideas about sex, if that makes sense.

Dr Fernando was cross-examined about material he had seen providing evidence of the accused’s behaviour generally with young males 14 to 15 years of age including cuddling, back massages, hand massages and asking the young males to play with his hair. He gave the following evidence:-

Q. There's been evidence, ES transcript 116/40, that Mr Mendis would initiate tickle fights involving
A. Yes.
Q. -young men at occasions, does any of that information impact upon your opinion?
A. It doesn't. Like what I said before people can have - let me backtrack. So a person's sexual orientation or conscious sexual - sexual activities can be very different when they're asleep. And then going back to your statement where he has a lot of this physical interactions with young males it can be - I have to make a disclaimer though - this is not my area of specialty
Q. I understand.
A. Yep, so what I'll tell you is as a general psychiatrist.
Q. Yes.
A. For me they can be little red flags that there might be something else going on psychopathologically, or it can be nothing in terms of young men having banter, and young men - a young man who's actually quite physical. However that's not my area of speciality, in terms of interpreting if there are other underlying sexual issues psychologically. I can - it's hard for me to comment on that.
Q. I understand. And just in that context, and please I'm not trying to push you where you don't want to be, but if I could put it this way, and within your field of experience and study
A. Yes.
Q. and qualifications you could put it this way, couldn't you, that they might be little red flags in the area that we're talking about, sexsomnia. But it would also go to reason that they'd be pretty big red flags if the person wasn't asleep at the relevant time as you say as a possibility, is that a fair statement?
A. Yes.
Q. They'd be giant red flags.
A. Yeah, so if Mr Mendis was conscious during the sexual activities that have been reported then those physical contacts are not just red - small red flags, but probably big red flags.

Dr Fernando agreed that close physical proximity could be a trigger for sexsomnia and was cross-examined about the accused’s partner’s account of grabbing her whilst he was asleep and she was seated on the same couch but that he was never sexual with her, even whilst asleep. He gave the following evidence:-

Q. No mention of anything related to sexsomnia. No masturbation, no intimate touching, no sex talk, nothing like that she's reported?
A. I'll qualify that, so sexsomnia, or a sexual activities while asleep can also include direct - none - none overtly sexual activities, like hugging, so some people will consider hugging just like sort of a - the variations of sexsomnia behaviours, so I- I will say that the hugging probably is a parasomnia, but sexsomnia is actually within the parasomnia umbrella. There's no clear distinction is a sexsomnia or parasomnia. If that makes sense.

It was put to Dr Fernando that other accounts given by witnesses demonstrated that he had been in close proximity with other young people at sleepovers between 20 to 40 times over the period of 12 months and agreed that no sexual misconduct had occurred.
The evidence of ES was then put to Dr Fernando concerning the two specific events which occurred 12 months apart whilst camping at Coledale beach. Dr Fernando agreed that there was very similar activity on each occasion but activity not reported by other witnesses.
Dr Fernando agreed that there was no objective malingering test for sexsomnia rather he relied on the history taken and collateral information. The self-reporting of Mr Mendis was one of many sources of information he took into account. He agreed that his conclusion namely “given his tendency sleep deeply and not easily wake up it is possible that Aaron remained asleep when JR engaged in various sexual behaviours” was the basis of his conclusion which extended to MM and ES as well.

The evidence of Dr J F O’Dea, Forensic Psychiatrist

Dr O’Dea provided two reports to the Crown dated 29 August 2023 (Exhibit O) and 7 September 2023 (Exhibit P). Dr O’Dea is a forensic psychiatrist who had been qualified with the NSW Police Service factsheet, the report of Dr Fernando dated 27 February 2022, a number of witness statements and anecdotal reports of phone conversations with two witnesses. He interviewed the accused on 17 August 2023 for 2 hours and 20 minutes and he acknowledged the Expert Witness Code of Conduct. In Exhibit O, Dr O’Dea set out the accused’s family and developmental history together with his employment and religious history. He also set out details of the alleged offending taken from NSW Police factsheet.
Dr O’Dea also took a sleep history from the accused which included that people have been telling him for years that he had been talking and praying in his sleep and that he can hug, kick, punch, roll and move in his bed whilst asleep. Dr O’Dea took a history that the accused had commenced sleepover with others when he was 16 years of age.
Under the heading “Psycho-sexual history” Dr O’Dea noted that the accused identified as an exclusive adult heterosexual orientation and denied awareness of any sexual interest in males or children. He also denied awareness of having engaged in any sexual activity with any person throughout his life. The accused told Dr O’Dea that the offences “did not make sense and could never have happened”. Dr O’Dea also took a relationship history from the accused who had been celibate with his girlfriend of some 5 years.
Dr O’Dea set out a review of the documentation with which he was qualified including the report of Dr Fernando and collateral history taken from family and friends from the accused as well as the overnight sleep study dated 27 February 2022 (Exhibit 6) and the Dentist’s report dated 27 February 2022.
Under the heading “Opinion” Dr O’Dea noted the accused’s family history of sleep talking and bruxism as well as the matters recorded as his sleep history which included readily falling asleep, sleeping deeply and for many hours and a history of recurrent episodes of incomplete wakening from sleep as well as making noises and moving through his sleep, “and hugging, cuddling and embracing, including in a sexual manner, and reportedly engaging in sexual activity, of which he has no reported memory”. On the basis of those symptoms Dr O’Dea opined that the accused would meet the psychiatric diagnostic criteria for a REM Movement Sleep Arousal Disorder (NREM Parasomnia) with sleep related sexual behaviour, sexsomnia, with the overnight sleep study being supportive but not conclusive, in relation to this diagnosis.
Dr O’Dea noted that the diagnosis is essentially based on self-report by the accused together with the histories taken from his family, victims and other witnesses.
Dr O’Dea further opined that the accused’s adherence to his religious doctrine may be a plausible explanation for his aim of celibacy prior to marriage but may also have potentially masked problems with his sexuality, including sexual orientation and he recommended further treatment to explore that in more detail.
Under the heading “Factors raising doubt about sexsomnia related to the alleged offences” Dr O’Dea opined as follows:-

“Whilst Mr Mendis may meet his psychiatric diagnosis criteria for sexsomnia, it does not necessarily follow that all, or even some, of his physical and or sexual behaviour during the sleepovers, including the alleged offences, were committed while he was asleep.”

Dr O’Dea referred to a number of issues that may raise doubt about the accused’s behaviour in relation to the alleged offences being understood as sexsomnia behaviour. He opined:-

“I note reference Mr Mendis setting up the mattresses so he would sleep closely to the male children; that it was reported that his penis was wet each time prior to allegedly engaging in anal sexual activity with the victim of the alleged offences (raising the possibility of lubrication being applied prior to anal sex); of him potentially responding purposefully during sexual activity with the victim of the alleged offences in response to noises indicating the possibility of others waking… and that he had been reportedly moving in and out of sleep on one occasion while speaking to the victim of the alleged offences and the other youth worker and also engaging in sexual activity with the victim of the alleged offences.”

Dr O’Dea noted that the evidence established that the accused’s general conduct in relation to children had been reportedly raised with him on a number of occasions and that he had not taken specific or significant steps to address those concerns.
In his supplementary report dated 7 September 2023 (Exhibit P) Dr O’Dea was asked to address the following:-

If resistance is provided to a person who is acting in an involuntary manner during an episode of sexsomnia, would it be usual for that person to continue against that behaviour?

If a person responds in a negative way (physically) to a touch whilst asleep, is that consistent with being aware or unaware of what is occurring?

Would it be consistent with sexsomnia to behave in a different way to similar triggers (i.e. sleeping beside another person, in physical contact with them) with specific people?

What percentage of the population are thought to suffer from sexsomnia in Australia?

Dr O’Dea responded as follows:-

“In response to the issues raised in paragraph 4(a)-(c); Sexsomnia has only recently been described in clinical detail, with limited direct witnessing of sexsomnia behaviours in controlled clinical circumstances such as laboratory sleep studies. Furthermore, sexual behaviours in general, and reported sexual behaviours when asleep in particular, can take a variety of different forms. As such, it would be difficult to interpret specific sexual behaviours by an individual when asleep, such as the sleeping person’s response to resistance, or to touch when asleep. That being said, as sexsomnia, in and of itself, is considered behaviour primarily related to a sleep disorder, and even if it is unclear whether sexsomnia behaviours are automatic or/and involuntary, or were to reflect the reduced inhabitation to an individual’s sexual orientation or opportunistic sexual interest, selecting out specific individuals over other equally available individuals, may be point to individual characteristics of the object of the sexsomnia behaviours, such as the recipient initiating and/or facilitating the sexual activity, but may also point to specific targeting of that individual over other equally available individuals.
In relation to the issue raised in paragraph 4(d); Whilst sexsomnia has been clinically reported from at least 1997 with one international population-based-cross-sectional study putting its lifetime prevalence at as high as 7%, and it may be considered to be underreported due to embarrassment, shame and/or legal implications, other studies have estimated the incidents as considerably less. However, I am not aware of any generally agreed or accurate community data regarding the exact prevalence of this disorder in Australia.”

Dr O’Dea had been asked to respond to a request for information regarding his expertise with respect to sexsomnia. He responded as follows:-

“I refer to my CV that includes references to my other 30 years of specialisation in forensic psychiatry, and in particular the assessment and treatment of sex offenders and patients with sexual disorders. I have attended and presented at a number of general psychiatric, forensic psychiatric and sexology conferences on a variety of topics related to the assessment and treatment of sex offenders and patients with sexual disorders. I have also been involved in the teaching of psychiatric trainees in these and other areas. I have prepared psychiatric reports in prior cases involving the issue of sexsomnia. I have not presented or published a paper specifically regarding sexsomnia, but have discussed the topic on a number of occasions with colleagues in general and at forensic peer reviews. Whilst I have assessed and treated a large number of patients with psycho-social disorders, general sexual disorders, and individuals charged with sex offences, I do not recall having treated a patient for the specific clinical condition of sexsomnia.”

In his evidence-in-chief, Dr O’Dea gave the following evidence concerning the evidence given by Dr Fernando:-

Q. Just in relation to the evidence given by Dr Fernando, I could deal with it this way. He gave some evidence when asked about my friend in regards to reports of moaning by the accused?
A. Yes.
Q. You agree with Dr Fernando, do you concur with his observations?
A. Well, my understanding is he said that those activities are consistent with the concept of sexsomnia, and that's something I would agree with.
Q. In regards to the episode of sexual intercourse where the accused was straddling JR? [Meaning Count 10, the allegation when JR was straddling the accused].
A. Yes.
Q. The same concurrence?
A. Yes, the same thing.
Q. In relation to talking or words spoken reported by the accused, you concur with Dr Fernando's views about that and sexsomnia?
A. Yes. My understanding of his view and my view would be that those kind of reported behaviours are consistent with sexsomnia and conversely not inconsistent with sexsomnia.
Q. Just finally, from me, there was a question asked of Dr Fernando along these lines, "If JR didn't pull out his penis during anal intercourse, leading up to anal intercourse, there would have not have been sex". You remember that being asked?
A. Yes.
Q. As I understand it, you don't disagree with what Dr Fernando's response was, is that the case?
A. I'll have to recall what his response was at the idea that JR, as you say, pulling out his penis, if he hadn't have done that, then I think it would be reasonable to accept that the course of the sexual activity may have been different. So that may have been that as a result, anal intercourse may not have taken place.

Dr O’Dea confirmed the comment in his report regarding the concept of malingering and gave evidence that he was certainly not able to make a diagnosis in this case of malingering.
In cross-examination Dr O’Dea was merely asked to confirm the questions he was asked to answer in his original report dated 29 August 2023 (Exhibit O).

Other evidence relied on by the accused

Counsel for the accused tendered the following articles:-

Exhibit 7, article titled “Sexsomnia – A New Parasomnia” by Shapiro & Ors dated 2003.

Exhibit 8, article titled “The Reality of Sexsomnia” by Muza & Drakatos.

Exhibit 9, article titled “Forensic Evaluation of Sexsomnia” by Holoyda, Sorrentino, Fernando & Ors.

Further evidence tendered by the Crown

The Crown tendered as Exhibit Q an article (formerly MFI 22) titled “Update on Sexsomnia, Sleep Related Sexual Seizures, and Forensic Implications” by Schenck.

The Crown address

The Crown relied on a written outline of submissions in which it identified the transcript references to evidence of acts supporting each count on the Indictment. The Crown conceded that there is no case to answer so far as Counts 4 and 11 were concerned, and that a verdict by direction could be given on those two counts.
The Crown acknowledged that the accused asserts that the physical acts said to have been done by him in committing the offences were not voluntary. The accused bore the evidential burden of showing a reasonable possibility that each act was not willed. The Crown addressed on the basis that the evidentiary burden had been discharged by the accused, and noted that the prosecution must prove beyond reasonable doubt the relevant acts were willed and voluntary, and not the result of automatism in the form of sexsomnia.
The Crown outline also provided transcript references to support its submissions in relation to complaint evidence, context evidence and tendency evidence.
With respect to the expert evidence, the Crown noted that both Dr Fernando and Dr O’Dea agreed that the accused met the criteria for sexsomnia. There was also broad agreement between them and the literature as to the following:-

Sexsomnia is a type of parasomnia.

The accused’s overnight sleep study and general observations of him provided in history included other types of parasomnias such as bruxism and sleep walking [in fact sleep talking].

Typically parasomnias occur at a certain stage of the sleep cycle being non-REM.

Typically sexsomnia behaviours are characterised by overt sexualised actions including fondling, masturbation, sexual intercourse, and sexual vocalisation.

Lack of awareness on part of the person after the sexual event is an indicator suggesting a sexsomnia episode.

A diagnosis of sexsomnia will invariably involve acceptance of facts reported by the subject. As such, the possibility of malingering cannot be ruled out.

Close physical proximity or touching are both potential triggers for a sexsomnia event.

The Crown noted that Dr Fernando placed emphasis on the evidence of JR and MM which strongly suggested the accused was asleep during the episodes of sexual activity. Likewise, there was no evidence to strongly suggest that the accused was fully conscious at the time.
The Crown also noted Dr Fernando relied on the accused’s denial of awareness and lack of recall as being consistent with episodes of sexsomnia and given the independently reported history that the accused was a deep sleeper it was possible the accused remained asleep. Dr Fernando also opined that the statements and evidence strongly suggest that the accused was asleep when the offences occurred there being no suggestions that he was fully conscious. His views were not altered by any evidence given during the trial.
The Crown relied on the following matters that arose in cross-examination of Dr Fernando:-

i) Sexsomnia is included within a broad brand of parasomnias. What distinguishes it - that is, sexsomnia - is the sexual aspect.
(ii) The body of research in relation to sexsomnia is not large.
(iii) Several situations are recognised to act as a trigger; anxiety drugs, et cetera.
(iv) Other than proximity to another person, none of those factors were present with the accused.
(v) Several medical conditions are recognised to act as a trigger. There is no history of any of those insofar as the accused is concerned.
(vi) Reports that the accused is a long sleeper, sleeps in cars, requires multiple alarms, must be pushed to wake up, are not indicative of parasomnia itself, let alone sexsomnia.
(vii) Whilst there is history the accused falls asleep quickly, whilst that is not indicative of sexsomnia, it is nevertheless a constant pattern of the accused's sleep, in any event.
(viii) Whilst jerking and kicking whilst asleep may be indicative of a parasomnia, they are not necessarily indicative or conclusive of sexsomnia.
(ix) In relation to the evidence of the accused getting up and going to the bathroom following intercourse with JR provided three possible scenarios. Those three possible scenarios, Dr Fernando says, are:
(a) the accused was conscious the whole time and, after the activity, and that is sexual activity, got up;
(b) he was still under some degree of sleep;
(c) he had a sexsomnia episode and woke up.

In relation to the independent history as reported by family and friends of the accused the Crown noted there had been no previous report characteristic with sexsomnia events such as masturbation, sexual intercourse or vocalisation, no report of intimate touching as set out in Counts 13 to 15, however the contact as described by MM in Count 13 may be the product of a sexsomnia episode, as a possibility.
The Crown referred to the accused’s strong religious beliefs as being inconsistent with participating in sexual relations, and noted that Dr Fernando had conceded that there were no objective tests designed to assess feigned parasomnia generally, including feigned sexsomnia. The Crown submitted the following distinguishing features between the experts as set out by Dr O’Dea in Exhibit O:-

“- The diagnosis of sexsomnia is difficult to exclude in this case.

- Whilst the accused may meet the criteria for sexsomnia, it does not necessarily follow, all or some of the acts in the alleged offences were committed whilst he's asleep.
…
- There are other issues that may raise doubt as to the nature of the behaviour.
- Those doubts referred to by Dr O'Dea include the accused's response to BI's movement - BI sat up in the nighttime, in the context of count 12 - and speaking with JR - and your Honour will recall that evidence which is count 6 - whilst, in my construction, the accused was moving in and out of sleep.
- This is observed by Dr O'Dea: General demeanour or tactile behaviour, which is not in issue in this trial, toward the complainants and young males generally, in the church setting, with those issues having been raised with the accused, are issues that also is a factor that Dr O'Dea also considered.”

The Crown submitted that notwithstanding the agreed position “the accused fits the criteria for sexsomnia and instructive as to the characteristics of sexsomnia, it is equivocal that evidence; as a critical question in relation to each count was, was the accused asleep or was he conscious?”
The Crown submitted that in considering whether the accused was asleep for each count on the Indictment the context evidence was the starting point. That evidence established that the accused was, in his role as a youth leader or pastor “over-familiar both in a verbal sense or in a personal sense, but also in a physical sense”. The Crown referred to various advice the accused had given to JR about relationships and ES about how members of the youth group should dress. Another example was the accused expressing dissatisfaction about where ES sat in church, and Mr Smith’s evidence about messages sent by the accused to his children when they didn’t answer their front door to the accused because they didn’t hear him knock. Mr Smith described the series of messages as “highly manipulative and emotional”.
The Crown submitted that a finding could be made that the accused was emotionally and personally manipulative both in his pastoral duties but also regarding sleepovers and church camps. The Crown further referred to evidence concerning the accused being tactile and hugging young people and his failure to respond to warnings given to him about such conduct.
The Crown also referred to the evidence of Mr Fletcher about concerns he expressed to the accused regarding sleepovers from a risk management perspective and the responses of the accused which were to challenge the advice rather than compliance with it.
The Crown submitted that when the accused’s propensity for tactile behaviour and personal interaction with each complainant were considered, the facts of each count together with the tendency evidence are capable of establishing the accused was conscious at the relevant time, despite his meeting the criteria for sexsomnia. It was submitted that the tendency evidence makes it more likely that the accused committed one or more of the counts on the Indictment.
In relation to tendency evidence the Crown submitted there were broadly three types of general propensity identified:-

The accused is generally tactile. He has a propensity to be generally tactile with boys of a certain age.

He had a propensity to be tactile with boys of a certain age in what could be described as over-familiar circumstances.

He had a propensity to be closely tactile with boys of that certain age during sleepovers associated with the church.

The Crown then outlined evidence supporting the over-familiarity with JR, MM and ES in his role as youth leader of the Rivers Edge Church, which was not contradicted. Similar evidence was given by other witnesses including IT and VZ. It included evidence of hugging, massages, having them run their hands through the accused’s hair and tickle fights.
The Crown submitted as follows:-

“Your Honour, prima facie, the expert evidence is that behaviour may be the product of sexsomnia episode, but then, without oversimplifying it, it may be not. The expert evidence is that it is possible that each physical act was the product of sexsomnia; it follows that it's possible that each act was not. However, the prosecution submission that the task for the tribunal of fact is not as simple as to consider that the acts might be consistent with sexsomnia, so that it would follow that the Crown have not shown otherwise.
Notwithstanding the similarity of sexual encounters suffered by JR, your Honour has indicated will direct yourself to consider each count separately, and in doing so, there is work to be done for the tendency evidence that I have referred to. As I have indicated, the tendency evidence establishes a clear propensity in each count, and in somewhat stark contrast to the history including sleepovers provided to Dr Fernando. Both complainant and tendency witnesses experienced tactile attention by the accused, including a request for massages, spooning, and on one occasion, tickling.”

The Crown submitted that the tendency evidence here “takes on another dimension which has a particular potency”. The Crown submitted as follows:-

“Each were of a similar age with one exception, touching a leg in the car, that attention - that's IT- occurred during sleepovers following youth group or related events being the Coledale camp. The nature of the tactile behaviour and sexual behaviour are unique to all the material considered by the experts. The evidence of Mr Smith and Mr Fletcher as to the accused demeanour towards young people and his resistance to change place that tendency evidence into a sharper context. Despite the consensus the accused fits the criteria with the possibility of sexsomnia as responsible, the only acts, as I say, reported, consistent with that condition, are the subject of each count and the tendency evidence.
The prosecution's submission is that the tendency evidence in this case takes on another dimension which has a particular potency. In that, as I've mentioned, it's only in the youth group context, it's youth group members only, youth group activities. In the circumstances of JR and ES, where there has been over familiar activity such as the massage of the hair and hands and such, it all happens whilst they're sleeping in close quarters and, it must be accepted, and it is, beyond question, that it's close quarters or close proximity or touching is something which is a trigger for a sexsomnia event; that's clear.”

The Crown referred to Count 6 where there was conversation of sorts around the time of the mutual sexual touching, Count 12 where the sexual activity stopped and Count 13 which involved three occasions of touching.
The Crown submitted that the Court must take into account the tendency evidence and context as to whether the accused was asleep at the time of each of the offences. Having regard to the all of the circumstances it was open to consider that the accused was not asleep and that the Crown has discharged its burden in respect of each count on the Indictment.

The accused’s submissions

Counsel for the accused relied on a written outline of submissions. Counsel submitted that a significant conclusion for all of the lay opinion is that the accused was, or could have been asleep during the alleged sexual assaults, further, the unchallenged evidence of Dr Fernando and Dr O’Dea is that it is possible that the alleged offending took place whilst the accused was in a form of sleep and therefore unable to form the necessary intention for each offence. Dr Fernando expressed the opinion that there was no doubt that the accused suffered sexsomnia and Dr O’Dea expressed the opinion that it was difficult to exclude sexsomnia.
Counsel submitted that the evidence was entirely one-way in relation to the observations and the expert opinion.
Counsel further submitted that the contradictor in this case came from an asserted tendency by the accused of a sexual interest by a person whose job it was to administer to youth and who was required to speak individually to various young people. In doing so he was to spend time with boys aged 13 to 18 and was required to become close with them.
Counsel submitted that the evidence was replete with the deep individual faith expressed by the accused from the outset within the context of his job as a youth leader. It was submitted that the evidence has to be looked at within the context of the uncontroverted evidence that the accused was affectionate physically to adults and young people alike and was affectionate to young girls and women alike.
Counsel for the accused made the following submission regarding the expert evidence:-

“Moving to the expert evidence - and there is a significant distinction between how the Crown framed the expert evidence in their closing, as opposed to how we suggest your Honour should deal with the expert evidence. To suggest that Dr Fernando's evidence was simply a conclusion as to the possibility of the accused being asleep at certain times - is not a finding which is open to your Honour, given the nature of what has been written and the limited extent of the cross examination.
The cross examination by the Crown in terms of possibility was directed to only three counts on the Indictment: the count which involved talking, being count 6; the count that involved interruption, count 12, with JR; and count 13, which related to the three movements towards MM.
The conclusion of Dr Fernando, in his report, was not challenged in terms of his certainty, in terms of his overall conclusion in relation to the events. The unchallenged evidence of Dr Fernando and Dr O'Dea is that it is possible that the alleged offending took place whilst the accused was asleep and, therefore, unable to form the necessary intent. Dr Fernando's conclusion in his report was that he has no doubt that sexsomnia explains the events.”

Counsel noted that Dr O’Dea gave evidence that it was difficult to exclude sexsomnia and noted that he was not prepared to make a finding of malingering or feigning. Counsel went on to submit there was simply no evidentiary contradictor in terms of the expert evidence provided. It was submitted the expert evidence cannot be properly rejected based on the findings of both experts here. The Court would not reject the validity of the expert evidence based on the literature relied on by the experts and the condition recognised in DSM-V. The Court would not reject the expert evidence on the basis that it was inherently unbelievable or that it did not fit with the facts found proved on the evidence, relying on Velevski v The Queen (2002) 187 ALR 233; [2002] HCA 4. It was thus submitted that the Court would accept the opinion of Dr Fernando who was eminent in his field. Dr Fernando gave evidence about how inherently unlikely it was for a sleep study to observe objective evidence of involuntary behaviour notwithstanding that the sleep study undertaken by the accused did pick up three abrupt arousals from slow wave sleep which were demonstrated by vocalisation. Counsel submitted that what was unique here was that there were so many examples of involuntary conduct whilst the accused was asleep.
In addition to the sleep study, the evidence demonstrated the accused suffered bruxism, teeth grinding, kicking in his sleep, placing his hands over necks and on one occasion placing his hand over JR’s mouth. In 2015 the accused hugged the railings of a hospital bed in his sleep and his parents demonstrated similar features including grinding their teeth, talking in their sleep and moving whilst asleep.
Other witnesses gave supporting evidence during multiple sleepovers with the accused. The uncontested evidence from all of the witnesses were that these events took place while the accused was asleep. Similar evidence was given that on numerous occasions the accused fell asleep, mumbled, and tended to roll over with his arms stretched over them on many occasions.
Counsel submitted that the incidents of anal intercourse concerning JR occurred only when JR was proactive in causing the sexual activity to take place. This was relied on by Dr Fernando explicitly as being consistent with sexsomnia. It was submitted that what was different when the alleged offences occurred was the intervening factor of JR either leading to triggering a parasomnic event or alternatively, simply that the accused was asleep when the offences occurred. It was thus submitted that a sexual activity would not occur unless JR was proactive.
Counsel referred to the doubts expressed by Dr O’Dea involving three parts of the evidence. The first relating to the accused using lubrication on his penis prior to the offending was not supported by the evidence and should be ignored. Secondly, the accused was according to the Crown forewarned about his activity, but the advice was ignored. Finally, the evidence supported a history of the accused being asleep when physical contact was made by witnesses. The contemporaneous accounts of JR were consistent with the accused being asleep. That included evidence that at the time of the offending JR thought the accused might have been asleep and JR raised that prospect with his mother. In the midst of those events he had researched the medical condition which the trial was about and Exhibit G had demonstrated amply that JR expressed to the accused that he didn’t know if the accused knew he was doing it or was just asleep.
Counsel referred to the following evidence of JR concerning the accused:-

"Because at - time, there were 1000 things I thought that it could have been, that I was scared of what it might have been, but I didn't believe it to be the highest truth in my mind. I've been more than honest in my statement about being worried about - he was - asleep - that he appeared asleep."

Counsel submitted that the unchallenged evidence of JR, ES and MM and all other witnesses was that the accused appeared to be asleep when physical contact was made. The accused had been observed for the entirety of his life to act involuntarily in his sleep in a myriad of ways, including conduct which could be perceived as affectionate.
Counsel submitted there was an absence of features consistent with malingering and the reasoning process of Dr Fernando, who was preeminent in his field, was compelling.
Counsel also submitted that the accused was not contemporaneously informed as to the extent and or seriousness of his behaviour whilst he was asleep. His conduct, amongst those who witnessed it, remained literally a joke. At no time was any serious sexual transgression brought to his attention. Rather the accused’s ministries support as a youth leader was the subject of praise. Even when advised by church leaders that there should be no more sleepovers, at no time was there any allegation of misconduct or criminal behaviour. Rather it was submitted that the contemporaneous public statements by church members and young people suggested the accused was a positive influence and not a person of a predatory nature.
In relation to Count 6 counsel referred to the expert evidence concerning the mutual touching of genitals between JR and the accused on the outside of their clothing particularised by the Crown as occurring whilst the accused was falling in and out of sleep in the morning. Dr Fernando had reviewed the evidence and concluded there was insufficient evidence that at the time of the offending conduct the accused was talking. It was submitted that this almost becomes an indispensable intermediate fact and that the Court would not accept the reliability of JR’s evidence so as to conclude it was conscious sexual activity rather, there was bias in JR’s reconstruction of the event which occurred 8 to 10 years ago.
It was submitted the Court would not find there was a coincidence between the touching and speaking in Count 6 and the Court would prefer the reasoning process of Dr Fernando.
In relation to tendency evidence, counsel submitted that the tendency reasoning sought to be deployed by the Crown is insufficient to displace the weight of the evidence that the accused was asleep. For the tendency reasoning to be deployed, the evidence of involuntary physical movement whilst asleep must be rejected, and there was no evidentiary basis for doing so. Rather for tendency reasoning to be applied it would necessarily assume the ultimate issue of voluntariness and hence would be a product of circular reasoning. This was described as being a product of “boot strap reasoning to assume the accused acted voluntarily in relation to any act or other acts or uncharged acts to establish the tendency, and then to reason from this that he was acting voluntarily.”
It was further submitted there was a sinister connotation put to evidence that the accused was affectionate. It was submitted that this tendency was not directed towards a particular group. Further, evidence concerning interactions between the accused and young people could not be characterised as grooming behaviour. In drawing such inferences it was submitted that such affectionate behaviour could be explained as a product of the accused’s nature and of what he was required to do in his role as youth pastor. Indeed there was conduct which was utterly inconsistent with grooming, for example, directing JR to sleep separately from the group at one point in time.
In relation to Count 13, counsel invited the Court not to apply common sense reasoning to the apparent deliberateness of the accused’s actions. Counsel submitted that the room where the conduct occurred was full of people and also in the household were MM’s family. It was submitted that Dr Fernando had incorporated into his analysis that it appeared that the accused was unaware of the circumstances. Rather it was submitted that the behaviour in respect of this count was as varied and as unpredictable as the science would expect from a person who was not responding to his environment and was suffering from sexsomnia.
Further it was submitted there was no commonality or pattern of behaviour or conduct in respect of each of the three complainants. Rather the conduct in respect of each was unpredictable and this unpredictability was the very feature of the expert’s opinions.
Counsel rehearsed his submissions regarding the absence of features consistent with malingering and submitted the Crown cannot point to any lie by the accused as consciousness of guilt. Rather the accused had been consistent as to his lack of knowledge and absence of admissions.
Counsel submitted that the Crown case was a theory based on a tendency rather than being based on evidence. At its highest the Crown submission appeared to be that there was a possibility that the accused may have been conscious at the time of the offending conduct. This fell utterly short of persuasive evidence that could ever ground a conviction for these offences.

Directions of law

Section 133 of the Criminal Procedure Act 1986 (NSW) provides as follows:

"(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."

The accused has the presumption of innocence in his favour, i.e. he is presumed to be innocent unless and until the Crown has proved each of the elements of the offence beyond reasonable doubt. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charges beyond reasonable doubt. Speculation cannot enter into my considerations and suspicion, not even the gravest of suspicion, can be a substitute for proof beyond reasonable doubt.

I have heard submissions from both the Crown and counsel for the accused. I will consider those submissions and give them such weight as I think they deserve. In no sense are those submissions evidence in the case.
It is for me to assess the various witnesses and decide whether they are reliable. The reliability of any witness' evidence depends upon both the witness' honesty and also the witness' accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me. I am not obliged to accept the whole of the evidence of any witness. I may, if I think fit, accept part and reject part of that witness' evidence.
I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question, and it only becomes evidence of the fact if the witness accepts that proposition as true or if there is other evidence that proves the proposition.
I remind myself that I may as a Judge of the facts draw inferences from the direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. In this criminal trial I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a rational inference in the circumstances.
Given that the issue in the trial is whether the defence of automatism is made out it is not necessary for me to set out the elements of each of the offences on the Indictment. I do note however that there was no evidence establishing the elements in Counts 4 and 11 and that there will be a verdict by direction of not guilty in respect of each of those counts.
In addition to the matters set out above I am required to give myself the following directions of law in my determination of the factual matters in the trial and ultimately my verdicts. The directions are as follows.

Direction re automatism

In order for an accused to be convicted of a crime, his or her act (giving rise to the unlawful conduct) must be voluntary.

Where an act (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 of the complainants JR, MM and ES that the accused appeared to be asleep at the time of the alleged offences, the denials by the accused that any misconduct occurred as he was asleep and the evidence of Dr Fernando that it was possible that the accused was suffering a parasomnia known as sexsomnia.

Although the defence has raised this issue for me to consider, 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. 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 acts of the accused were voluntary, that is, it is for the Crown to remove any reasonable doubt from 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 at the time of the offending conduct.

Automatism in this case does not involve any question of mental health impairment or cognitive impairment. It is concerned with involuntariness, which does not derive from any of those conditions.

To summarise, unless the Crown proves beyond reasonable doubt that the acts of the accused were subject to the control and direction of his will, then he must be acquitted because no offence has been committed.

Multiple counts direction R v Markuleski (2001) 52 NSWLR 82; KRM v The Queen (2001) 206 CLR 221

Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on one count and not guilty on the other count, if there is a logical reason for that outcome.

If I were to find the accused not guilty on any count, particularly if that was because I had doubts about the honesty or reliability of the complainants' evidence, I would have to consider how that conclusion affected my consideration of the remaining counts.

If I have a reasonable doubt about the complainants' credibility in relation to any one count, I might believe it difficult to see how the evidence of the complainants could be accepted in relation to the other count.

I further direct myself that I must consider each count separately and consider it only by reference to the evidence that applies to it.

Direction re evidence given by complainants via Audio-Visual Link

In this case two of the complainants JR and ES gave their evidence via audio-visual link. As the credit of a complainant in a case of this type may be a crucial issue in the resolution of the charges against the accused, any difficulty that I might encounter in assessing the credibility of the witness by reason of the fact that the evidence was adduced by the use of an audio-visual link should be resolved in favour of the accused. If I had any difficulty in properly assessing the demeanour of a complainant by the restrictions or limitations placed upon that task because of the use of the video link, that might be a matter that would give rise to a doubt whether I could rely on the witness and therefore may give rise to a doubt that the prosecution had proved its case.

It is important to give the same weight to evidence given by audio-visual link as if it had been given by a witness in a courtroom.

Context direction

The Crown has led evidence as to other aspects of the accused's behaviour in the course of his pastoral duties within the Rivers Edge Church.

The Crown prosecutor has referred to that evidence both in his written outline of submissions and oral closing address.

Behaviour relevant to counts involving JR & ES:

That evidence may be conveniently summarised as relied upon by the Crown as the accused engaging in:

Relationship and lifestyle discussions with JR regarding proximity to females.
Discussions with ES as to the need for modest attire whilst in proximity to females.
Discussions and text messages to ES conveying the accused's disappointment with ES.
Text messages to Mr Smith's sons conveying the accused's disappointment with them.
Physical reactions by the accused observed by JR on occasion he attempted to touch the accused in a sensitive area of his body.

This evidence was admitted solely for the purpose of placing the evidence of JR and ES towards proof of the charges into what the Crown says is a realistic and intelligible context.

By context I mean the history of the conduct by the accused toward those complainants.

Without the evidence of these other acts the Crown says, it may be wondered for example, about the likelihood of apparently isolated acts occurring suddenly without any reason or any circumstance to link them in anyway.

Behaviour relevant to counts involving JR & MM:

The Crown also led evidence relevant to Counts 1-12 (JR) & Count 13 (MM) on the Indictment.

That evidence involves:

Discussions between the accused and Pastor Luke Fletcher regarding the accused's interaction with young people within the church from about 2014 onwards.
Discussions between the accused and Mr Smith regarding the accused's interactions with young people within the church commencing early 2016.

The Crown's argument is that without that evidence I would not have the whole history necessary to understand the full significance of the incidents upon which each charge is based.

If I had not heard this context evidence, I may have thought the complainant's evidence was less credible because it was less understandable.

The evidence is placed before me only to answer questions that might otherwise arise in my mind about the particular allegations charged in the Indictment.

Warning as to the use of the evidence set out in (a)-(g) above:

I must give myself some important warnings with regard to the use of the evidence I have just outlined.

Firstly, I must not use this evidence as establishing a tendency on the part of the accused to commit offences of the type charged in the Indictment.

I cannot act on the basis that the accused is likely to have committed the offences charged in the Indictment based upon the context evidence.

This is not the reason the Crown placed this evidence before me. The evidence has a very limited purpose as I have explained, and it cannot be used for any other purpose or as evidence that the particular allegations charged in the Indictment have been proved beyond reasonable doubt.

Secondly, I must not substitute the evidence of the other acts for the evidence of the specific charges on the Indictment. The Crown is not charging a course of misconduct by the accused but has charged particular allegations arising in what the Crown says, was a course of sexual misconduct.

I am concerned with the particular and precise occasion alleged in each charge in the Indictment.

I must not reason that, just because the accused may have said or done something on another occasion, that he is guilty of any of the charges alleged in the Indictment.

I cannot punish the accused for other acts attributed to him by finding him guilty of any of the charges alleged in the Indictment.

Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law.

Direction - Complaint evidence

In this trial the Crown relies upon evidence of what the complainants said to other people about the alleged sexual assaults, that such an assault did occur. The evidence the Crown relies upon falls into 6 categories. They are:

The complaint of JR to his parents.
The complaint of ES to his mother, father and sister, RS.
The complaint of MM to EM.
The complaint of JR to CJ.
The complaint of JR to VZ.
The complaint of JR to IT.

I do not intend to go over all of that evidence. It is for me to decide whether the complaints were made and what their contents were.

If I find that the complaints were made substantially to the effect that each witness gave evidence of, then I can use evidence of what was said in the complaint as some evidence that such an assault did occur. The law says that because of the circumstances in which the complaint was made, a decider of fact is entitled to use what was said in that complaint as evidence of the truth of what the complainant alleges against a person, namely, the accused. I am entitled to find that the 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 each witness and more likely to be accurate. It is a matter for me whether I draw that conclusion in this particular case and so treat the complaints as evidence of the alleged sexual offending by the accused in addition to the evidence that has been given about it in this courtroom. If I do use it as some evidence of the sexual offending, that is the subject of the charges, then what weight I give it is again a matter for me.

Whether I do use the evidence of complaint in that way or not, the Crown asserts that it has another purpose. The Crown contends that the fact that the complainants raised the allegations against the accused at the time and in the manner that they did, would lead me to accept the evidence given by the complainants in their evidence. In other words, it makes the evidence of the complainants more believable than if they had not raised the allegations as they did.

Again, it is for me to decide whether the complaints were made, but if I am satisfied that they were, then the question I should ask myself is, "Did the complainants act in the way I would expect them to act if they had been assaulted as they said they were?" "Is what he did the sort of conduct that I would expect persons who have been assaulted in that way?" If I think that the complainants have done what I would expect someone in their position to do, that may support the Crown case because I may find that there is a consistency between the complainants' conduct and the allegations that they made against the accused Aaron Mendis.

On the other hand, if the complainants have not acted in the way I would have expected someone to act after being assaulted, as they described, then that may indicate that the allegations are false. But I must bear in mind when considering this issue that there may be good reasons why the complainants did not raise the allegations immediately following the alleged assaults and that a failure to do so does not mean that the allegations must be 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 more than one occasion.

Direction – s293A Criminal Procedure Act 1986 – Differences in complainants’ accounts

If I find there are inconsistencies in the complainants' accounts that may be relevant to their truthfulness or reliability, I am directed that experience shows:

People may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time.
Trauma may affect people differently, including affecting how they recall events.
It is common for there to be differences of accounts in a sexual offence, and
Both truthful and untruthful accounts of a sexual offence may contain differences.

It is up to me as the tribunal of fact to decide whether or not any differences in the complainants' accounts are important in assessing the complainants' truthfulness and reliability.

Statutory direction in relation to s292D of the Criminal Procedure Act 1986

I direct myself that:-

Trauma may affect people differently which means that some people may show obvious signs of emotion or distress when giving evidence in Court about an alleged sexual offence, but others may not, and
The presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence.

Direction - Right to silence

All people in this country have a right to silence - that is, to choose not to answer questions put to them by the Police. That is what the Police Officer told Aaron Mendis when he was asked if he wanted to answer their questions.

There are some exceptions to this right, for example, when a Police Officer asks the legal owner of a car, who was driving it at the time of a traffic offence. But those exceptions do not apply here.

In this case, it would be quite wrong if Aaron Mendis, having listened to what the Police said, and having decided to exercise his right of silence, later found that this fact was used against him. I must not do that.

Direction - Failure of the accused to give evidence

The accused, Aaron Mendis has not given any evidence in response to the Crown's case.

The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged.

The accused bears no onus of proof in respect of any fact that is in dispute. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. He is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.

The accused's decision not to give evidence cannot be used against him in any way at all. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.

I must not speculate about what might have been said in evidence if the accused Aaron Mendis had given evidence before me.

Notwithstanding that the accused did not give evidence at trial, there was evidence given that he denied the allegations brought by each of the complainants for example, his denial in messages to JR in Exhibit G, his denials to ES and his denial to the father of MM.

It follows from that:

First, if I believe the evidence of the accused's denials, obviously I must acquit.

Secondly, if I have some difficulty accepting that evidence, but think it might be true, then I must acquit.

Thirdly, if I do not believe the evidence, then I should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that I do accept, proved the accused's guilt beyond reasonable doubt?

Good Character Direction

The Accused relies on evidence to establish that he is a person of good character in a particular respect. That evidence was to the effect that Aaron Mendis is a person of good character namely:

That he has no criminal history, having never been charged with, or convicted of, any offence in Australia.

The law provides that I am entitled to take evidence of an accused’s good character into account in his favour on the question of whether the Crown has proved his guilt beyond reasonable doubt. The fact that Aaron Mendis is a person of good character in those respects is relevant to the likelihood of him having committed the offences alleged. I can take into account Aaron Mendis’ good character by reasoning that such a person is unlikely to have committed the offences charged by the Crown. Whether I do so in that way is a matter for me.

Further, I can use the fact that the Aaron Mendis is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account, e.g. in any denial he has made of alleged misconduct. Whether I reason in that way is a matter for me to determine.

None of this means, of course, that good character provides Aaron Mendis 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 the guilt of Aaron Mendis. What weight I give to the fact that Aaron Mendis is a person of good character in these two respects is completely a matter for me. In addition, I should keep in mind the fact that a person who has previously been of good character can commit an offence for the first time.

Direction - Expert witness direction

In this case, Dr Antonio Fernando and Dr Jeremy O'Dea were called as expert witnesses. An expert witness is a person who has specialised knowledge based on that person's training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion within his or her particular area of expertise. Other witnesses may speak only as to the facts, that is, what they saw or heard and are not permitted to express their opinions.

Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where the opinion is based on that witness's specialised knowledge.

Expert evidence is admitted to provide me with scientific information relating to sexsomnia, evidence on whether the accused suffered from a form of parasomnia, namely sexsomnia, at the time of the alleged offences and an opinion on that particular topic was within Dr Antonio Fernando and Dr Jeremy O'Dea's expertise. It is likely to be outside the experience and knowledge of the average lay person.

The expert evidence is before me as part of all the evidence to assist me in determining whether the sexual assaults took place by the accused on the complainants. I should bear in mind that if, having given the matter careful consideration, I do not accept the evidence of Dr Fernando and Dr O'Dea I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my own commonsense and my own experiences if they are relevant to the issue upon which the expert evidence relates.

Tendency evidence direction

Part of the Crown case is that the accused had a tendency to have a particular state of mind and a tendency to act in a particular way. Each of these tendencies are relied upon as circumstances relevant to the accused’s guilt of all offences. The Crown identified these tendencies as

having a state of mind, namely, a sexual interest in males aged between 12 and 16 in circumstance and,
acting upon that sexual interest by seeking to intimately embrace, sexually touch or have sexual intercourse with males aged between 12 and 16 whilst in a position of authority or supervision over them and,
a tendency to act upon those sexual interests on numerous occasions in circumstances when there was a risk of detection.

Those include church related sleepovers and camps when sleeping next to the child.

The Crown says proof of these tendencies makes it more likely he committed the offence(s) charged in the Indictment.

I cannot consider evidence of the accused’s alleged tendencies as a relevant circumstance in the Crown’s case unless I make several findings.

First, I must find that one or more of the acts relied upon by the Crown to establish the tendency evidence actually occurred as an act of the accused.

In determining whether I should make that finding, I need not consider each of the acts in isolation but should consider all the evidence to determine whether each of the acts relied upon actually occurred.

In this regard, part of the conduct that the Crown relies upon to establish these tendencies is the charged conduct asserted by the three complainants itself.

However, part of the evidence the Crown relied upon to prove the alleged tendencies concerns the incident[s] alleged to have occurred in relation to the Crown witness, AS, BI, VZ, IT, CJ & EM.

The relevant evidence regarding those persons is not the subject of any charge in the Indictment.

I must firstly examine the entirety of the evidence relied upon by the Crown and consider whether that evidence in its entirety, or part establishes the tendency asserted.

If I am so satisfied, I can use that evidence in considering whether it is more likely the accused committed the specific charges set out in the Indictment.

As to that part of the Crown’s case on tendency, if I am not satisfied that those incidents occurred, then the evidence relating to them should be put to one side.

If I decide that all, or at least some, of the conduct (charged or uncharged) occurred, I then need to consider whether it enables the inference to be drawn that the accused had the tendencies as they are alleged by the Crown. That is, I will have to determine whether the acts which I am satisfied occurred prove that the accused had the tendencies asserted by the Crown.

I remind myself regarding the care that needs to be applied to the drawing of inferences. I have to consider whether there might be alternative explanations for the evidence. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances.

If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In such circumstances, I must put the whole issue of tendency to one side and confine myself to considering the other parts of the Crown’s case.

But if I am satisfied that the acts relied upon to sustain the alleged tendencies have been proved and that the tendencies posited by the Crown have been proved, then I can use the proven tendencies when considering whether the Crown has proved the accused’s guilt beyond reasonable doubt.

However, I bear in mind that just because a person has a tendency to have a particular state of mind or to act in a particular way, does not mean that he must have had the state of mind, or must have acted in that particular way, on the occasion in issue. I also keep in mind that I should not give disproportionate weight to the tendency evidence.

In short, finding the accused did have the tendency or tendencies which the Crown alleges is not enough to prove the accused’s guilt. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on the occasions that are the subject of the charges. That is the only way the alleged tendencies, if proven, may be used.

Ultimately, I must decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon all the evidence relevant to each of the charges. This includes the evidence of each of the complainants about what the accused did. It will also include the tendencies alleged by the Crown, provided I am satisfied it has been established in the circumstances I have described.

The evidence the Crown relies upon to establish that the accused had this tendency, or tendencies is of a type that might provoke some people to have an emotional response to it because it might be regarded as a distasteful way for a person to have behaved. Though a Judge and lawyer by training, I remind myself to be careful to avoid allowing any emotional response or prejudice to distract myself from a calm and objective assessment.

Findings of fact

As outlined above the issue in the trial is limited to whether the Crown has negatived, beyond reasonable doubt, the defence of sexsomnia at the time each of the alleged offences occurred.
It is therefore unnecessary to make findings of fact in relation the other elements of the offences in Counts 1 to 3, 5 to 10 and 12 to 15 on the Indictment. I find each of the three complainants were honest and generally reliable witnesses, doing their best to assist the Court. Each fairly described the accused as either being asleep or appearing to be asleep during each episode of the offending conduct.
I accept the evidence of each complainant that there was no conversation during any of the offending conduct with the exception of Count 13, which I find occurred on an occasion where during the morning the accused was falling in and out of sleep, and I find the offending conduct occurred only when he was asleep.
In cross-examination JR agreed that there was never an occasion when the accused was touching his penis and talking at the same time. He further agreed that in none of his four statements did he describe the accused as “grunting and moaning” during sexual activity nor did he describe facial expressions of the accused during such activity, moving his head from side to side or having his eyes open. Rather his evidence was that the accused’s eyes were generally closed, he was never fully awake and that he seemed like he was asleep.
Further JR gave evidence of two conversations he had with the accused about the subject matter, in which the accused made no admissions whatsoever. Also relevant was the evidence of JR that on each occasion he was proactive in facilitating the sexual intercourse by “receiving”, and that on occasions when he wanted to “give” he was pushed away by the accused, or the accused would “flinch” and roll away.
I accept MM’s evidence in respect of Count 13 that when MM awoke to find his hand on the accused’s genitals held by the accused’s hand, he said to the accused, “Aaron what are you doing?” and gave him a little tap. The accused gave no response except to roll away, and then later the same activity occurred notwithstanding that at that time MM had locked his hands between his legs. At no time did the accused say anything.
I accept the evidence of MM that when confronted by Mr M the next morning with what happened the accused seemed “shocked, like he didn’t know what was going on.” I accept MM’s evidence that the accused said he was sorry, and also said, “like I was asleep.”
I find as a fact that the accused reported the matter to Pastor Luke of the Rivers Edge Church before Mr M raised it with Pastor Luke.
I accept the evidence of MM in cross-examination that he remained on friendly and supportive terms with the accused up until the Police investigation and exchanged numerous texts with him that were very supportive of the accused and their relationship, as evidenced in Exhibit 1.
I accept the evidence of ES that the conduct in Count 14 which involved the accused placing his hand on ES’s genitals during the night while they were camping in which ES described his penis being “tugged and pulled” and felt “like a pinching” which lasted for a few seconds. The sexual activity in Count 15 he described as “almost identical”. I accept ES’s evidence that he too had a conversation later about that conduct with the accused at Hungry Jacks where the accused really reassured him that nothing had happened. I find that they too remained on friendly and supportive terms until the police investigation notwithstanding that ES had moved to Canada where the accused had visited him and his family. ES had sent the accused loving and supportive text messages to the accused when he was 21 years of age.
I find that over the years covered by the counts on the Indictment there were numerous sleepovers held by members of the youth group where the accused was in attendance and no sexual misconduct took place. The evidence was however replete with references to the accused’s movements whilst he was asleep and physical contact with those around him. For example the evidence of BI that at sleepovers the accused’s arm or leg would be on top of him when he woke up and the accused would appear to be sleeping. CJ gave evidence that at sleepovers he would awake with the accused cuddling him, putting an arm over his chest and pushing his leg into him. He described the physical contact as “strong, like intense” but the accused appeared to be asleep. CJ gave evidence that he would just push the accused off, and nothing was said about the incidents, and he never spoke to the accused about it. IT gave evidence that he made observations at sleepovers of the accused asleep with his arm around whoever was sleeping next to him. On one occasion the accused placed his arm over IT who pushed him away. This occurred on four or five occasions at sleepovers however IT never raised it with the accused. VZ also gave evidence of attending a sleepover at MM’s house when the accused wrapped his arm around him whilst the accused was asleep. He said to the accused “I don’t feel uncomfortable” however the accused did not respond and appeared to be asleep.
I further accept the evidence of Mr Christopher Smith that he found the accused when he first got to know him as a very friendly youth pastor who was charismatic and who had “a Pied Piper” effect on young people. Mr Smith described the accused as doing a good job. He was impressed by the accused who he described as “very hands on with everyone”. I also accept Mr Smith’s evidence that he raised with the accused concerns that he had regarding the accused being tactile and hugging young people and that the accused had responded to him, “Well, I’m a huggy person”. When Mr Smith raised the allegations with the accused, he denied any wrongdoing.
Pastor Luke Fletcher also raised concerns with the accused and I accept his evidence that when he did so, rather than accept the advice he was being given the accused would enter into what seemed “like a debate”. Notwithstanding that I accept Mr Fletcher’s evidence that he received repeated positive feedback about the accused’s performance as a youth pastor and that he wrote him a reference letter (Exhibit 3). I also accept that the accused’s employment was terminated for financial reasons.
I accept the expert evidence of Dr Fernando that the accused met the criteria for sexsomnia and that it was a reasonable possibility that he was suffering from sexsomnia at the time of each of the episodes of sexual offending for the following reasons:-

The evidence given by family, friends and his girlfriend as to the accused’s sleeping habits which included falling asleep quickly, sleeping deeply and continuously, moving his arms and limbs whilst asleep, being known to grab and hug people while asleep, and on one occasion grab a hospital bed barrier whilst asleep. I accept such observations were made by multiple friends with whom the accused had countless sleepovers with over many years.

The accused had no awareness of his peculiar sleep behaviours. I accept Dr Fernando’s opinion that he had symptoms of NREM parasomnias since he was a young boy.

Both the accused’s parents and brother suffered parasomnias including sleep talking, bruxism and limb movements.

The accused’s overnight sleep study confirmed brief arousals suggestive of NREM parasomnia activity.

The dentist reported a provisional diagnosis of bruxism.

There was no evidence at all that the accused was conscious at the time of any of the alleged offences.

The close proximity of the accused to each complainant provided a trigger for the sexsomnia activities.

The accused denied awareness or recall of the events when put to him, for example, Exhibit G in the text messages between JR and the accused in August 2020, but also when confronted by Mr M immediately after the incident in Count 13.

Malingering or feigning sexsomnia by the accused had been excluded as a possibility by the expert evidence.

I do not find as established the Crown assertion of the accused having a tendency, namely a sexual interest in males aged between 12 and 16 and to act in a particular way, namely to act upon that interest by seeking to intimately embrace, sexually touch or have sexual intercourse with males aged between 12 and 16 years where he was in a position of authority/supervision and, in circumstances where there was a risk of detection. Rather I find on the whole of the evidence that the accused was a young person with over-familiar personal traits which included hugging people generally and being overly zealous in his pastoral care of young people to the extent that he ignored guidelines or protocols issued by his employer, for example in the way sleepovers were to be held, and in his advice concerning relationships, or how to dress.
The evidence given by IT that on one occasion in 2018 when talking to the accused in the accused’s car, the accused placed his hand on the top of IT's right thigh, following which IT immediately left the vehicle and thereafter never spoke with the accused about it, does not establish that the accused had a sexual interest in IT. Rather they continued to communicate in a “normal and cordial” fashion and IT accepted that their communications were “extremely positive”. Other than the occasions when the accused was asleep there is no evidence of the accused engaging in any overt sexual act towards any person. I find on the whole of the evidence that no inference may be rationally drawn that the accused had a sexual interest in males aged between 12 and 16 years, and I reject the Crown submission that the tendency evidence here “takes on another dimension which has a particularly potency”, making it more likely that the accused voluntarily committed the offences.
I therefore find that there was no tendency evidence that could be relied upon to establish any count on the Indictment. I accept the accused’s submission that to do so would involve impermissible circular reasoning.

Determination

It is a fundamental principle of the criminal law in this State that a person is not guilty of a crime if the act that would constitute it was not done in the exercise of the accused’s will to perform it, or done voluntarily.
In R v Falconer (1990) 171 CLR 30; [1990] HCA 49 the High Court of Australia confirmed the entitlement of an accused to an acquittal if the charged act occurred independently of the accused’s will by reason of involuntary conduct not arising from a disease of the mind or natural mental infirmity.
In R v DB [2022] NSWCCA 87 Brereton JA having reviewed relevant authorities and the distinction between “sane” and “insane” automatism, said at [43]:-

“It is, therefore, plain that in law the acts of a person who is asleep and engaging in somnambulistic activity are not willed acts; and the accused is not legally responsible for them. It makes no difference whether they would amount to murder, rape, or assault if the accused were awake and conscious.”

Having regard to the whole of the evidence I find that it was a reasonable possibility at the time of each alleged offence that the accused was asleep, and suffering from sexsomnia and therefore the acts carried out were not either willed or voluntary acts of the accused.
The Crown has failed to negate beyond reasonable doubt the defence of automatism and there will therefore be verdicts of not guilty in respect of each of Counts 1 to 3, 5 to 10 and 12 to 15 on the Indictment.
There will be verdicts of not guilty by direction in respect of Counts 4 and 11 on the Indictment.

Orders

I hereby enter verdicts of not guilty in respect of Counts 1 to 15 on the Indictment.
Annexure A (201278, docx)

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Decision last updated: 13 September 2024

Medium Neutral Citation:	R v Mendis [2024] NSWDC 420
Hearing dates:	27 August 2024 – 9 September 2024
Date of orders:	13 September 2024
Decision date:	13 September 2024
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Verdicts of not guilty
Catchwords:	Sexual offending; multiple child complainants; Judge alone trial; defence of automatism.
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 (NSW)
Cases Cited:	KRM v The Queen (2001) 206 CLR 221 R v DB [2022] NSWCCA 87 R v Falconer (1990) 171 CLR 30; [1990] HCA 49 R v Markuleski (2001) 52 NSWLR 82 Velevski v The Queen (2002) 187 ALR 233; [2002] HCA 4
Category:	Principal judgment
Parties:	Aaron Mendis (the Accused) Director of Public Prosecutions (NSW) (the Crown)
Representation:	Counsel: Mr D Carroll (the Accused) Mr J Tunks (the Crown) Solicitors: Ms S TambyRajah (the Accused) Ms L Vander Reest (the Crown)
File Number(s):	2021/00161244, 2021/00161263 & 2022/00070993
Publication restriction:	Pursuant to s578A of the Crimes Act 1900 and s15A of the Children (Criminal Procedure) Act 1987 the names of the complainants or any matter which is likely to lead to the identification of the complainants, must not be published.