R v Mm

[2016] NSWDC 251

District Court

New South Wales

Medium Neutral Citation:	R v MM [2016] NSWDC 251
Hearing dates:	9 September 2016 Written Submissions: 26 August 2016 (Applicant); 1 September (Crown/Respondent) Further Written Submissions: 13 September 2016 (Applicant)
Date of orders:	14 October 2016
Decision date:	14 October 2016
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	The Applicant is granted a certificate pursuant to s 3 of the Costs in Criminal Cases Act 1967 (NSW)
Catchwords:	COSTS IN CRIMINAL CASES – whether reasonable to institute the proceedings – whether alleged offender had contributed to institution or continuation of the proceedings – certificate granted
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW) ss 2, 3, 3A and 4 Criminal Procedure Act 1986 (NSW) ss 142 and 143
Cases Cited:	Kamali & Ors v R [2013] NSWSC 799 R v Johnston [2000] NSWCCA 197 R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 R v Pavy (1997) 98 A Crim R 396 Youssef v R (1990) 50 A Crim R 1
Category:	Costs
Parties:	MM (Applicant) Regina (Crown/Respondent)
Representation:	Ms J Gallagher (Applicant) Mr P Johnson (Crown/Respondent)   David Fletcher & Associates (Applicant) Solicitor for the Director of Public Prosecutions (Crown/Respondent)
File Number(s):	2011/412187
Publication restriction:	Non-publication order with respect to the name of the Applicant and the name of the Complainant

Judgment

Introduction

1. On 10 August 2016, the Applicant, MM, came to trial on an indictment comprising five counts relating to two sets of dates. Counts one and four were allegations of sexual intercourse without consent. Counts two and five were allegations of assault and count three alleged indecent assault. Counts one to three were said to have occurred between 1 May 2008 and 31 August 2008. Counts four and five were said to have occurred on 17 December 2011.

2. MM was arraigned and an opening address given on behalf of the Crown. The Crown then sought and was granted an adjournment until the following day. On 11 August 2016, the Court was advised that the Director of Public Prosecutions had determined that there be no further proceedings in relation to any of the matters. MM was then discharged and his Counsel made an application for a certificate for costs pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW). [1] That application was adjourned until 9 September 2016 for hearing.

   1. Hereinafter referred to as “1967 Act”

3. At the hearing each party tendered, without objection, a bundle of primary material relied on. The Applicant’s bundle was marked Exhibit A and the Crown’s bundle was Exhibit 1.

4. The parties submitted written submissions and oral submissions were heard. Thereafter I granted MM leave to file further written submissions by 16 September 2016 in respect of any argument relating to s 3(1)(b) of the 1967 Act. The Crown was given leave to respond by 23 September 2016, however it did not do so. Judgment was formally reserved.

5. It is not in issue that jurisdiction to grant such a certificate has been established under s 2(1)(a) of the 1967 Act, in that the trial had commenced and the Director of Public Prosecutions had directed that there be no further proceedings. The principal dispute arose as to the appropriateness of granting a certificate.

Legal principles

6. Section s 3(1) of the 1967 Act provides as follows:-

3 Form of certificate

(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

7. The term “relevant facts” is defined in s 3A(1) of the 1967 Act as follows:-

3A Evidence of further relevant facts may be adduced

(1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3 (1) (a) to

"all the relevant facts" is a reference to:

(a) the relevant facts established in the proceedings, and

(b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and

(c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that:

(i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and

(ii) were not adduced in the proceedings.

8. In Kamali & Ors v R, [2] R A Hulme J detailed what facts constituted “relevant facts” for the purposes of the section, stating:-

“[7] As may be seen, the definition of "relevant facts" in s 3A is limited: while categorising different types of relevant facts, it does not expand upon what makes a fact "relevant". In Chalal v DPP [2008] NSWCA 152; (2008) 185 A Crim R 580, Ipp JA (Giles JA agreeing) found at [29] that the necessary construction of "relevant facts" was "facts relevant to the reasonableness of the institution of the criminal proceedings." Three types of relevant facts may be considered:

(1)The first are those relevant facts "established in the proceedings": s 3A(1)(a). Basten JA, giving separate judgment in Chalal, took "proceedings" to have the same meaning as it has in s 2(1) (at [62]). That is, the criminal proceedings instituted by the Crown and concluded by the discharge or acquittal of the applicants. I am not bound by his Honour's reasoning, but the construction is logical and I can find no other authority on point. An implication is that this category includes material established at committal and on the voir dire.

(2)The second are relevant facts established by the defendant, in conjunction with the making of the CCC Act application, to the satisfaction of the Court: s 3A(1)(b).

(3)The third type of relevant facts are those established by the Crown which "relate to evidence" in the possession of the Crown at the time the decision to institute proceedings was made and which were not adduced in the proceedings: s 3A(1)(c). These facts may include, for example, credibility evidence that supports primary evidence to be adduced at trial and may influence a decision to institute proceedings, but is not itself admissible. (For the purposes of the application, the institution of proceedings means the date of arrest or charge: Mordaunt [36(c)].)”

2. [2013] NSWSC 799 (R A Hulme J)

9. A similar view was taken by the NSW Court of Criminal Appeal in R v Pavy. [3]

   3. (1997) 98 A Crim R 396

10. MM draws attention to statements in R v Manley. [4] There the case involved a conflict in testimony by medical witnesses. Simpson J noted, that when fully analysed, it would not have been reasonable to institute proceedings. [5] In that same case, Wood CJ at CL stated:-

“[17] It was submitted by the Crown that, in determining whether it was or was not reasonable for the DPP to institute the proceedings, it was proper to take into account matters of public policy such as the necessity to ensure that justice is seen to be done in serious cases of criminality, and the necessity to secure public confidence in the justice system and in the Courts, and also to have regard to the prevalence of the offence being prosecuted and the degree of public concern in relation to it. In my view such considerations are irrelevant to the evaluation, by the hypothetical prosecutor of the evidence, the knowledge of which is imputed to the prosecution.

[18] The independence of the office of the Director of Public Prosecutions, and the presence in office of a Director responsible for the institution of criminal proceedings in the interests of the State, must be preserved. Neither is threatened by a construction of the provision which directs attention to the evidence of the relevant facts in an individual case. It would be unacceptable to impose some qualification upon the Section designed to encourage prosecutions in order to satisfy some ill defined community interest in bringing a particular accused, or kind of matter, before the Courts. Indeed, to do so may only serve to threaten the independence of the Director of Public Prosecutions.”

4. [2000] NSWCCA 196; (2000) 49 NSWLR 203, 206 – 207 [17] – [18] (Wood CJ at CL)

5. [2000] NSWCCA 196; (2000) 49 NSWLR 203, 220 [77] (Simpson J)

11. Once the test in s 3(1)(a) is satisfied attention is then turned to s 3(1)(b). In this regard in R v Johnston, [6] Simpson J (with Wood CJ at CL agreeing) stated:-

“[18] … In practical terms, s 3(1)(b) will be primarily directed to omissions, for example cases in which defence material has been, for tactical or strategic or other reasons, withheld from the prosecution; but it is also wide enough to encompass positive acts such as the (probably more unusual) case where the defence has deliberately in some way misled the prosecution. By the inclusion of the evaluation of reasonableness in this respect the legislature has recognised that tactical considerations and decisions are legitimate in the defence of criminal charges, and has recognised the potential value to an accused person of retaining the element of surprise in the confrontation of prosecution witnesses, or the presentation of the defence case. It is not in every case where defence evidence has been deliberately withheld from the prosecution that a court will consider that the omission to supply the material to the prosecution was not reasonable in the circumstances.”

6. [2000] NSWCCA 197

Facts

12. As the trial before me did not proceed into evidence, there were no established facts at the hearing. Nevertheless most of the primary facts were not disputed and rested on an account given by the complainant, KM.

13. On the tendered material, it is not in issue that KM, made a statement to Police on 21 December 2011 [7] regarding an alleged sexual assault by MM on 17 December 2011. This was asserted to have taken place at KM’s home where she resided with her two children [8] and two adult friends.

    7. Exhibit 1, Tab 1

    8. MM being their father

14. According to the statement, KM and MM had returned home after attending a rodeo that evening, where they both had consumed alcohol. MM helped KM remove her moon boot and asked if he could sleep on her bed – on top of the blankets. KM agreed and she went to bed. Sometime later KM awoke to find MM having penile – vaginal intercourse with her as she laid on her side. MM was said to be moving his penis in and out of KM’s vagina and his hand was around her throat. KM struck MM and he then grunted, rolled away and said: “Slut.” KM rolled herself up in her blanket, and cried before falling asleep. She stated that her vagina hurt and she had a sore neck where MM grabbed hold. The next morning the KM claims MM asked her “How did you sleep?” KM replied “How do you think I fucking slept?” and MM replied “Fuck you, you fucking cranky cunt.” [9] KM then made a complaint to her housemate that: “MM raped me.” The housemate suggested that the Police be called, but this was declined. [10] MM was then driven to a hotel by the housemate.

    9. Exhibit 1, Tab 1 at [18]

    10. Exhibit 1, Tab 1 at [19]

15. On the evening of 19 December 2011 a number of text messages were exchanged between KM and MM. KM’s statement records these as follow:

“23 After this telephone conversation I received a number of text messages from [MM]. I knew that it was [MM] because on my telephone his telephone number of {REDACTED} is recorded in my telephone under the name of [MM] I replied to these texts messages [sic].

24 I text a reply of ‘No UR jusr sayin did u forget thst I forgave u for wat u done to me I bleed the next day u arsehole im a mess from iy.’

25 [MM] text ‘I’m so sorry I don’t know what got into me I haven’t even been thinking about sex.’

26 [MM] sent another text message ‘ I don’t know wat it is but its like I loose control of my self when im around you again im sorry I had such a great night just like me to fuck things up.’

27 [MM] sent another text message Can I ask why didn’t you stop me the other night.

28 I text back to him ‘I tried u had ur hsnd aroind my throat.’

29 [MM] sent another text message back ‘I can’t believe I would do that to someone I love so much I feel like some sort of monster no wonder you cant have me back in your life.’

30 I text back ‘Can u bring ur swag over Chrissy’

31 [MM] sent a text back saying ‘Why cant I sleep in {REDACTED} room.’

32 I text back ‘If {REDACTED} isn’t there u can.’

33 [MM] text back ‘My swag was ruined by rats when it was in the shed.’

34 [MM] sent another text ‘do I say anything wen that shit happens at nigh.’

35 I text back ‘Just callin me sluts n hore n’

36 I sent another text ‘Can you get {REDACTED} to put my money in please.’

37 I sent another text message ‘Can I come get it my banks in debt.’

38 [MM] text ‘Too late should be sent already I sent 150’

39 I sent a text ‘Thanku’

40 [MM] sent a text ‘Diod you no there is a photo of your arse on Facebook;

41 I sent a text Im sick of bein hurt by u

42 [MM] TEXT ‘Wat now’

43 I sent a text ‘I just can’t get over wat u done to me.’

44 I sent a further text ‘I want to get help for it bur they will take it to the cops’

45 [MM] sent a text ‘Are you alone ill ring you’

46 [MM] sent a further text ‘Is it ok if I ring.’

47 I sent a text ‘I don’t want to talk to u how r u gunns fix it’

48 [MM] sent a text ‘I will in see someone with you if you want’

49 I sent a text Y would thst be something I want

50 [MM] sent a message ‘I don’t know just thought id ask’

51 [MM] sent a message ‘I don’t know watt else to do or say I love you and I cant believe that happened again go so sorry” [11]

11. Exhibit 1, Tab 1 at [23] – [51]

16. On 20 December 2011, KM asked her housemate to call the police for her. Police attended and KM made a statement the following day. The housemate also made a statement in support of KM’s complaint. [12]

    12. Exhibit 1, Tab 5

17. There were other civilian statements asserting a varying level of intoxication by MM on the night of the rodeo. These were from the housemate’s partner, who also resided at the house; [13] KM’s younger brother, and the younger brother’s partner who had been at the rodeo. [14]

    13. Exhibit 1, Tab 7

    14. Exhibit 1, Tab 6 and 8

18. On 22 December 2011, MM was arrested. He was taken to the police station, where he said to the Custody Manager Inspector Lynch:-

“Yeah, I need to contact a Solicitor, this is bullshit mate, I did nothing wrong. She set me up.” [15]

15. Exhibit 1, Tab 12 at [11]

19. MM subsequently participated in an ERISP. [16] MM relied generally on his right to silence, but was at one point, asked a question and responded as follows:

“Q62 OK. And it’s further alleged that she has attempted to elbow you, and kick you out of the way whilst you were doing that. And that, upon her doing that, you’ve grunted and rolled over and called her a slut. OK? Further to that - - -

A If any of this did happen, there were two other grown adults in the house. If she‘d have made, said anything, or made any noise, someone would’ve known.”

16. Exhibit 1, Tab 13, “Electronic Record of Interview with Suspected Person”

20. The Crown submits that the response in the ERISP suggests that MM was denying anything happened and asserting that KM was making it up.

21. MM was subsequently charged with the offences the subject of counts four and five on the indictment.

22. MM was committed for trial on 5 November 2012.

23. MM’s trial was first listed at Wagga Wagga District Court on 11 June 2013. It was adjourned on the application of MM having been refused legal aid.

24. MM’s trial was next listed at the Wagga Wagga District Court on 3 February 2014. On that occasion the trial was adjourned on the Crown’s application, as KM was pregnant at the time. The trial was next listed for 20 October 2014 at the Wagga Wagga District Court.

25. On 7 October 2014, the Defence served a notice in accordance with the Criminal Procedure Act 1986 (NSW), [17] notifying in respect of the following paragraphs of s 143(1):-

“(b) The accused relies on the defence of sane automatism;

(c) to the extent that the material contained in the Prosecution brief goes to an intention to have sexual intercourse without consent with KM, issue is taken;

(d) the accused intends to raise points of law going to voluntariness and prior sexual relationships between the accused and the complainant.” [18]

17. Hereinafter the “1986 Act”

18. Exhibit 1, Tab 16

26. A report from Dr Sharon Reutens, consultant neuropsychiatrist dated 22 September 2014, was provided to the Office of the Director of Public Prosecutions [19] in support of the Defence. It is not in issue that Dr Reutens’ report raised the issue of sane automatism by reference to earlier incidents of similar conduct which had been reported to medical practitioners. Although Dr Reutens’ report was not contained in either of the parties’ tendered material, it is common ground that Dr Reutens reasoning as to the events of 20 December 2011 [20] gave support to sexsomnia when the accused was asleep. [21]

    19. Hereinafter “ODPP”

    20. The subject of Counts 4 and 5 on the indictment

    21. Exhibit 1, Tab 14 and Exhibit A, Tab 16, p 11 [2.1.12]

27. Following this police again interviewed KM and obtained a statement dated 10 October 2014. [22] In her account of an incident which she stated occurred in 2007 (but was ultimately charged as having occurred in 2008), KM stated that she went to sleep with MM and awoke to find him having penile – vaginal intercourse with her from behind as she laid on her side. His hand was said to be around her throat. When KM tried to move, the grip tightened to stop her moving. KM next states that she hit MM and he let go. MM is then said to have responded: “Sorry, I didn’t mean to. I am sorry,” which he kept on repeating. KM was crying and left the room and slept on the ground. The next morning, both got up and nothing was said until lunchtime, when KM asked MM, why he had done it to her (referring to the alleged rape), and he responded: “I am frustrated because you are not putting out” which came to be understood as her not giving him sex, since she found out that she was pregnant some months earlier. [23]

    22. Exhibit 1, Tab 3

    23. Exhibit 1, Tab 3 at [14] – [15]

28. KM stated that after the incident she slept on the lounge and was too scared to sleep in the bed with MM. However after three weeks, she returned to sleep with him in the same bed, although a number of pillows were placed between them. This was so that MM was not tempted to touch her again in this way. As KM drifted off to sleep, she felt MM tugging at her pyjama pants and underwear, trying to pull them down. KM left the room and went to sleep on the lounge again. She subsequently said she told MM that he needed help.

29. She went to a medical appointment with MM. MM told the doctor that he would fall asleep and KM would wake up yelling at him. She said that she told the doctor: “He was raping me, when I was asleep.” KM drove MM to other appointments and he was prescribed dexamphetamine. KM went onto say that after the birth of their daughter, their sexual relationship returned to normal with no reports of further incidents.

30. Subsequent to the ODDP being in possession of the report of Dr Reutens and KM’s further statement, search warrants was executed by which further records were obtained [24] from Cootamundra Community Health and from the Gundagai Medical Centre in respect of both MM and KM. On 16 October 2014 the Crown received further medical material under the cover of a letter from MM’s solicitors dated the same date. [25] This included material relevant to events of 2008.

    24. Exhibit 1, Tab 10

    25. Exhibit 1, Tab 18

26. I turn therefore to consider the records relating to 2008.

27. On 4 August 2008, MM and KM attended on Dr Jodie Culbert. Her notes record the following history:-

“Presents with partner and initially says too embarrassed to talk about the problem.

Happy for partner to talk about problem.

She reports that 3 times in the last few months, [MM] has forced her to have sexual intercourse and been rough with her when he is apparently asleep.

On one occasion he ‘tried to strangle her.’

Says that this behaviour does not happen when their daughter is sleeping in bed with them …

has happened times x 2 when he has had a lot of alcohol to drink and once when he had not been drinking

…

Long history of sleepwalking since childhood, less since living with current partner.

As child parents had to put locks on doors as they were worried that he would get to the creek in his sleep.

Alcohol;

has increased intake of alcohol recently, under stress, remorseful about behaviour of drinking 6 - 8 beers a night.

Addit; Also reports 3 or 4 episodes where he has completely blacked out without warning and dropped to the floor x 1, passed out when driving tractor and drove it through the back wall of shed, and two other occasions? investigated.” [26]

26. Exhibit A, Tab 4

33. MM thereafter attended Cootamundra Community Health Centre on 26 August 2008, where the reasons for presentation noted:-

“[MM] presenting with concern re: behaviour towards ‘wife’. [KM] verifies the behaviour and states that she was unable to wake him during the events x 3.” [27]

27. Exhibit A, Tab 3

34. On 26 August 2008, the Cootamundra Community Health patient notes record:-

“[MM] attended appt as planned. He is distressed that he has been aggressive in his sleep, unable to be woken during the event, and when finally awake, unable to remember. [KM], his wife/mother of his child and currently pregnant, collaborates this information. She tried to wake him throughout this alleged aggressive encounter. She told [MM] that he was having sex with her while he was sleeping which he couldn’t remember. [MM] is also concerned re: his ‘heavy drinking’ of alcohol.” [28]

28. Exhibit A, Tab 2

35. On 24 October 2008 Dr Greg Patterson, consultant psychiatrist, noted a history as follows:-

“[MM] related that he experienced 3 or 4 episodes, over a 3-4 month period when, during sleep, he tried to strangle [KM] or impose sexual intercourse upon her – his defacto found him very difficult to wake, and he had no recollection of such events upon wakening. He is distressed by such episodes, and has arranged for [KM] to live apart from him at the moment. Although he had been drinking alcohol heavily before the first episode, other episodes occurred without any or minimal alcohol intake. He had been taking the prescribed medications Endone, Mobic, and Panadeine at the time, though fluoxetine was only commenced by your intern after these episodes had occurred.

More recently [MM] is perturbed by another unexplained event. He had recently ceased, then recommenced his medication – shortly thereafter on the 12th October 2008, reporting that he had only drunk 3 beers and taken his prescribed medication, he states that he experienced a three hour period that evening for which he had no recollection. Apparently he backhanded his wife, causing her nose to bleed, he rammed his father’s car with a four wheel drive and drove to Tumut.”

Later Dr Patterson opines:-

“[MM] as verified by [KM], maintains that he is not consciously aware or manufacturing his behaviour, and at first assessment, I am unable to define a clear secondary gain.” [29]

29. Exhibit A, Tab 1 and Exhibit 1, Tab 18

36. On 20 October 2014, the Crown successfully sought an adjournment of the trial and it next became listed for trial on 7 December 2015.

37. The material in the ODPP’s possession in October 2014 was then forwarded to Dr Dev Banerjee, consultant sleep physician, who was retained to provide an opinion as to the defence of sane automatism and in particular, parasomnia.

38. Dr Banerjee’s report was completed on 4 December 2014. [30] Pages four and five of his report set out the material he was provided with and includes medical records from 2008. Dr Banerjee interviewed and took a history from MM, his current partner, and his parents in person. He also spoke by telephone to KM. In the report, Dr Banerjee opined as follows:-

“For [MM] to have his hand around [KM’s] throat, after stating to me that [KM] used to enjoy having his hand around her throat from previous sexual encounters, indicates higher cerebral functioning. This behaviour is very unusual in sexsomnia.” [31]

30. Exhibit 1, Tab 14 and Exhibit A, Tab 16,

31. Exhibit 1, Tab 14 and Exhibit A, Tab 16, p 23 at [2.2.4](d)

39. Subsequent to the receipt of that report the Crown determined to proceed on three further counts being Counts 1, 2 and 3 on the indictment presented on 8 August 2016.

40. MM then retained Dr Peter Buchanan, whose report is dated October 2015. [32]

    32. Exhibit 1, Tab 19; Exhibit A, Tab 15

41. Dr Buchanan examined the role of an underlying sleep disorder in a specific violent act and referred to guidelines made by Mahowald Schenck. At pages 12 – 15, he commented on the guidelines and their application in the context of MM. He said he regarded the seven item checklist as a useful template to consider the most relevant aspects of the contentious behaviour before the Court. Specifically he noted the Applicant’s prior history of both sleepwalking and non-rapid eye moving parasomnia behaviours (NRPS) exhibited by MM over the many years. He stated that this set the scene for the occurrence of other more unusual NRPS or reliant behaviours such as sleep sex, that manifested itself in the events concerning KM, but from MM’s perspective may have occurred on an automatistic basis. He stated:

“I think that the case for [MM] having had a genuine background of NRPS through much of his (and including adult) life is well established by the evidence.” [33]

33. Exhibit 1, Tab 19; Exhibit A, Tab 15, p 18

42. Dr Buchanan further noted that MM’s contextual responses when awake and informed of his alleged behaviours were consistent with that behaviour having been formed by him in an automatistic way, and his having been contrite when subsequently being informed and accepting that information as true. He noted that such responses included:

“… seeking professional assessment, to seek understanding and perhaps treatment for these alleged behaviours, expressing remorse, and not substantively fleeing from the scene of the event.” [34]

34. Exhibit 1, Tab 19 and Exhibit A, Tab 15, p 18

43. Dr Buchanan also noted the relevant fact of mutually agreed physical proximity on the nights in question allowing for the potential interpretation of a NRPS behaviour as being precipitated by the very proximity and inadvertent touching in sleep.

44. With regard to the events in 2011, he stated that it was not possible to rule out, in the absence of toxicological data, whether alcohol intoxication influenced behaviour may have provided an explanation for the alleged acts. He noted that in relation to the events which were the subject of the 2008 offences, MM stated that he would have consumed little, if any, alcohol on the previous evening of that event, and also was not using anything other than mild analgesics for his chronic back pain at that time. [35]

    35. Exhibit 1, Tab 19 and Exhibit A, Tab 15, p 4

45. The circumstances as to alcohol consumption was somewhat contradicted by the history contained in the 2008 medical records to be discussed later in these reasons.

46. This aside, Dr Buchanan reported:-

“In summary, I believe that there is no absolutely conclusive way to determine retrospectively in a medical-scientific sense, the bases for [MM’s] alleged actions in 2008 (or ? 2007) and 2011 in relation to the complainant. However there are circumstantial factors outlined above that, if accepted, support the significant possibility* that [MM] had performed those actions in a state of automatism due to a medical condition, principally, that he had a profile consistent with being an ongoing sufferer from parasomnias, and was occasionally subject to the unusual variant of NRPS known as sleep sex

*I do not think that the * possibility can be meaningfully quantified.” [36]

“In addition, imperfect memory by the protagonist(s) for events occurring months or years prior may obscure the accurate presentation of events in the contemporary scene.” [37]

36. Exhibit 1, Tab 19 and Exhibit A, Tab 15, p 19

37. Exhibit 1, Tab 19 and Exhibit A, Tab 15, pp 8 – 9

47. On 7 December 2015, the trial was not reached and it came on for trial before me on 10 August 2016.

48. The Crown interviewed KM on 8 August 2016 and their conference notes have been tendered. [38] In the statement of 10 October 2014, KM had said that MM apologised immediately after the 2008 incident and did not ask what had happened. She said that she told her doctor that she did not think he was asleep. However, on 8 August 2016, KM had her attention drawn to the medical notes (which she had not seen before) from 2008, where she was recorded as reporting that she had trouble waking MM up and appearing to support MM’s account that he had no recollection of these events. In response, KM is recorded to have said that she was now unsure about her account of the 2008 sexual assault, and then stated:

    38. Exhibit 1, Tab 4 and Exhibit A, Tab 14

“Maybe I dreamt that – ‘I’m sorry, I’m sorry’

Obviously hard to wake

I still don’t believe he was asleep – the last time

Now I’m doubting myself

That is how I perceived it (as in the statement) back then

I don’t know now, I cannot remember now.” [39]

39. Exhibit 1, Tab 4 and Exhibit A, Tab 14

49. Although an account of her memory of what happened in 2008 was recorded in her 2014 statement, KM now doubted herself. She went on to say of the 2008 incident, “[MM] convinced me he was asleep” and she said what she said to doctors in 2008 because she believed him. In relation to the 2011 incident, she stated that there was nothing factually different from the 2008 incident but he had been trying to get back with her for some time. [40]

    40. Exhibit 1, Tab 4 and Exhibit A, Tab 14

50. A telephone conference was held with Dr Banerjee on 8 August 2016. Dr Banerjee was advised that KM was unsure of the account she had provided in her 2014 statement about 2008. Dr Banerjee still considered that MM’s behaviour was more likely explained by him being drunk. He said that there were a number of steps or manoeuvres required to achieve penetration and that achieving full penetration without the victim waking up required finesse. He said unresponsiveness by MM was not uncommon in the context of alcohol consumption, as was a lack of awareness. [41]

    41. Exhibit 1, Tab 15 and Exhibit A, Tab 17

51. On 10 August 2016, there was a further telephone conference with Dr Banerjee in which he advised that he was still of the opinion that MM was most likely awake at the time (in 2008) but was now unable to rule out the possibility of sane automatism. This was because the basis of his opinion relied upon facts which were now uncertain. In summary, Dr Banerjee stated that although he had an opinion, he had to rely on the established facts for the basis of that opinion. He said that if KM could not be sure of what happened immediately after the 2008 event, the material facts which formed the basis of his opinion were now in doubt. He acknowledged that MM’s conduct could be explained by sane automatism in 2008. He went on to say that even though alcohol was clearly present in the 2011 incident, if KM was to say that his behaviour was effectively identical in 2008 and 2011 (and bearing in mind that one of the 2008 events did not involve alcohol), this becomes important in looking at the 2011 incident and the case against sane automatism is weakened. [42]

    42. Exhibit 1, Tab 15 and Exhibit A, Tab 17

52. It was in this context that a report was submitted to the Director of Public Prosecutions and a decision was made to discontinue proceedings.

Applicant’s submissions

Section 3(1)(a)

53. MM submits that as at 2008, KM consistently reported that she accepted that MM had suffered from parasomnia and that these encounters were complex examples of the issues. It was noted that KM, in the Crown’s conference notes of 8 August 2016 stated that MM in 2008 would “sleep talk” and threw KM out of the bed because he thought there were snakes in the bed and sat up and said “There were snakes in the bed.” [43] At that time KM stated that she believed that MM was asleep.

    43. Exhibit 1, Tab 4, and Exhibit A, Tab 14, p 3

54. MM submitted that the Crown was not going to assert at trial that the evidentiary burden borne by MM had not been met. [44] It is noted that whilst Dr Banerjee drew attention to MM’s asserted apology after the 2008 incident, KM on 8 August 2016 gave a different account.

    44. Youssef v R (1990) 50 A Crim R 1, 4 (Hunt J with whom Wood and Finlay JJ agreed)

55. It was in this context that MM submitted that Dr Banerjee upon being informed about the 2008 and 2011 conduct being almost identical, it was understood that he conceded that the case against sane automatism was weakened. [45]

    45. Exhibit 1, Tab 15 and Exhibit A, Tab 17

56. The Applicant submits that if the hypothetical prosecutor had known what the current prosecution knows, namely that sane automatism could not be disproved beyond reasonable doubt, it would not have been reasonable to institute those proceedings on MM.

57. Despite the fact that KM resiled from her recollection in 2014 of what MM said to her in 2008, Dr Banerjee also relied on the description of sexual intercourse, particularly in 2011, involving MM having to re-position himself under the quilt, pull down his boxer shorts, come close to KM, pull her underwear to the side and have direct access to her vagina before penetrating it without waking her up. This together with the fact that MM had his hand around the neck of the complainant (which MM stated he did because KM used to enjoy having his hand around her throat from previous sexual encounters) was said to indicate a high cerebral functioning. [46]

    46. Exhibit 1, Tab 14 and Exhibit A, Tab 16, p 23 at [2.2.5](d)

58. Dr Buchanan on the other hand stated:-

“The medical diagnosis of sleep sex (also known as sexsomnia, sleep-related abnormal sexual behaviour) is made in the non-forensic, clinical context from an appropriate history provided by, most often, from a concerned partner who is usually then the victim of, or witness to, the (unrecognized-by-the-performer, at least initially) sexual acts of the person performing sexual behaviour in sleep; those sexual acts have been reported to include potentially the full gamut of usual human sexual behaviour ranging from sexualized groaning to full sexual intercourse. It is usually the case that sleep sex behaviours do not manifest on an every-night frequency basis, but more likely will occur in an apparently unpredictable pattern. This irregular and sometimes infrequent pattern of frequency of occurrence reflects the similar pattern manifested in other (non-sleep sex) NRPS behaviour such as sleepwalking.” [47]

47. Exhibit 1, Tab 19 and Exhibit A, Tab 15, p 7

59. Dr Buchanan also stated that:

“Sleep sex has no motivational aspect at the conscious level, as genuine sleep sex behaviour does not occur with the individual in full consciousness, and can instead be seen as the unhindered expression of primitive natural sexual urges.” [48]

48. Exhibit 1, Tab 19 and Exhibit A, Tab 15, p 12

Section 3(1)(b)

60. The Applicant further submitted that the assessment of reasonableness of notification as at 20 October 2014 should be viewed in the context that MM only received advice to do so at the time, and KM was aware, as at 2011, that MM was sleepwalking but did not mention it at the time of the complaint. Alternatively, it was submitted that if the Court was not in favour of the Applicant’s submission, that a certificate from at least from 20 October 2014 was sought.

Crown’s Submissions

Section 3(1)(a)

61. The Crown submits that the essential issue in dispute in the matter was whether the acts of MM were voluntary and whether the Crown could prove the case beyond reasonable doubt.

62. The Crown draws particular attention to the fact that Dr Buchanan states that what is required is a carefully gleaned and consistent history stating:-

“Forensic Context is quite different in important respects from the clinical context and provides special challenges for medical practitioners, psychologists and others involved in the assessment of such individuals. These differentiating contextual factors include the possible lack of good faith interaction among players, the potential role of malingering by the accused party, and additional stressors associated with the legal process.

63. The Crown acknowledges that the fact that MM genuinely would have no memory of any sexual/violent acts and was seeking treatment, was a reflection of the fact that “a person could be aware in time and space, but his faculties are skewed” by drunkenness, such that it was quite possible that he would no memory of his conduct. Dr Buchanan also stated that with specific regard to the events of 2011:-

“… I hold the opinion that it is not readily possible to rule out, in the absence of any relevant toxicological data, whether alcohol intoxicated-influenced behaviour may have been an alternative explanation for the alleged actions of [MM]. [49]

49. Exhibit 1, Tab 19 and Exhibit A, Tab 15, p 18

64. It is asserted that this could explain an honest assertion that MM had no recollection. It was further drawn to attention that on 4 August 2008, the medical notes recorded that “it happened on two occasions where MM had a lot of alcohol to drink, and once when he had not been drinking. There is no issue that alcohol was present in 2011. [50]

    50. Respondent’s Submissions dated 29 August 2016 at [18], Exhibit A, Tab 15 and Exhibit 1, Tab19 p18

65. The Crown submitted that Dr Banerjee looked to other facts and histories given as not supporting sexsomnia. This included the number of acts required to undress and remove clothing, getting into position and achieving penetration as well as the report by the Applicant’s current partner, that MM had had sex with her four/five times while she thought he was asleep – the essential touching, and the activity being similar to when he was awake – as opposed to them being rough, “clunky” and without finesse, the real cases exhibit and the lack of primers for NRPS such as sleep deprivation or stress at the time of the 2011 offence.

66. Dr Banerjee however, came to the view that without some certainty as to the material facts during and immediately following the 2008 sexual assault, the case for negating a defence of sane automatism was weakened.

67. The Crown submits that ultimately the case depended upon the facts established to ground the opinions of the competing experts. It submitted that the facts established the actus reus for the offence, however the issue was what did the surrounding facts and history which grounded each of the experts’ opinions as to the possibility of parasomnia. It was noted that Dr Buchanan did not directly address the issue of MM immediately apologising in 2008 (on the account of KM in the 2014 statement) and assumed incorrectly that “[MM] returned to consciousness in both instances” the next morning, “presumably” some hours after the event. [51] It also noted that this was not what KM’s 2014 statement indicated and it was unknown whether the opinion would have remained unchanged had that error not been made. Whatever force this submission may have is dissipated by the fact that the KM is now uncertain as to whether this in fact now occurred.

    51. Exhibit 1, Tab 19 and Exhibit A, Tab 15, p 13

68. In submitting that the test in s 3(1)(a) of the 1967 Act was not satisfied, the Crown stated that KM’s recollection of the 2008 events, six years after the events took place, was given in her 2014 statement. However, when the content of the 2008 medical notes became known to KM, she began to doubt her recollection about some crucial facts that she had asserted in 2014. This did not, it was submitted, make her a discredited witness but her uncertainty impacted upon the facts Dr Banerjee could rely upon to form his view. The Crown submitted that when faced with the possibility that KM’s recall of MM’s immediate apology was inaccurate, one of the main planks for Dr Banerjee’s opinion could not be relied upon and accordingly sexsomnia was a plausible explanation for the Applicant’s conduct. It was submitted that once that occurred, it could not be excluded as a possible explanation for the 2011 conduct given the similarity in behaviour.

64. The Crown contended that it was not unreasonable to institute proceedings against MM. Whilst a hypothetical Crown is taken to be placed in the position at the time the proceedings were instituted, knowing “all of the relevant facts”, the Crown’s ability to prove voluntariness beyond reasonable doubt, relied upon KM’s evidence. The Crown submitted that these were matters of fact that would normally be determined by the tribunal of fact, and to the extent that the Director had exercised a discretion, a central foundation for the expert opinion being in doubt that did not make it unreasonable to institute proceedings.

Section 3(1)(b)

70. The Crown contends that MM first raised the issue of voluntariness or sane automatism almost three years after MM was charged. It was before the third trial date, on 20 October 2014, that the Defence raised the issue and the report of Dr Sharon Reutens was provided. It was in this context that the Crown sought an adjournment to explore the issue and MM provided a further report of Dr Buchanan in October 2015.

71. The Crown submitted that in the chronology outlined, no history of voluntariness was raised at committal, the first trial date, or the second trial date and it was only raised just before the third trial date, without the Crown having had time to respond. It was submitted that there was no explanation as to why the issue was not raised before the third listing of the trial and the lateness in the disclosure of the Applicant’s defence in circumstances where the Defence carried the evidential burden and the Crown had to consider it, meant that it was not reasonable in the circumstances. It was argued that this delay by MM contributed significantly to the continuation of the proceedings such that the Court should decline to grant a certificate. The Crown contended that in the alternative, that any certificate should be limited to costs after October 2014.

Consideration

72. The Crown is for the purposes of the assessment required by s 3(1)(a) to be placed in the position of knowing all the relevant facts within the terms of s 3A. In my view there was no uncertainty as to KM’s position as expressed in the 2008 medical records that MM was asleep at the time of the acts against her. The uncertainty arose only in relation to the assertions made for the first time in 2014 relating to the 2008 events once the contents of the 2008 medical notes were drawn to KM’s attention which was not until when the trial was listed to commence on 8 August 2016. The Crown conceded that KM’s assertion as to MM’s conduct as expressed in the 2014 statement was a “main plank” of Dr Banerjee’s opinion and it was from that point forward, undermined. When combined with KM’s acknowledgement that one of the incidents in 2008 did not involve alcohol and the 2011 incident was the same as 2008 the Crown conceded that it could not exclude sexsomnia as a plausible explanation. This was notwithstanding Dr Banerjee’s other observations as to the effects of alcohol and the actions of MM in performing intercourse.

73. The text message exchange between MM and KM following the 2011 incident suggested that MM was not aware what had occurred. Specifically he asked KM “why didn’t you stop me’ and “do I say anything …” In response to a request “…how r u guns fix it”, MM replies “I will in see someone with you if you want”. In concluding the exchange MM stated “I don’t know what else to do or say I love you and I can’t believe that happened again so sorry.” In light of the contemporaneous nature of these exchanges, the Crown’s submission as to MM’s answer in the ERISP interview cannot be accepted.

74. It follows that I am satisfied within the terms of s 3(1)(a) of the 1967 Act that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings

75. I accept that MM bore an evidentiary burden to raise the defence of sane automatism however in light of the aforementioned text messages that the Crown had in its possession it could not have assumed voluntariness would not become an issue. The Applicant did not identify that it intended to advance the defence of same automatism until around 7 October 2014 when the s 142 notice pursuant to the 1986 Act was served along with the report of Dr Reutens of 22 September 2014. Subsequently, the Applicant served records under cover of the letter of 16 October 2016. There is no evidence before me as to why this matter was not raised earlier although a submission was advanced that MM did not prior to then receive relevant legal advice. As mentioned earlier, one adjournment appears to be attributable to an inability to access legal aid.

76. Be that as it may the police reinterviewed KM upon the receipt of Dr Reuten’s report on 10 October 2014. Having done so, three further charges were laid. The Crown received further material from MM on 16 October 2014 and followed that up by executing search warrants. The contents of that material were not brought to KM’s attention until 8 August 2016, at which stage KM had cast doubt on her earlier recollection.

77. I do not consider that the terms of s 3 of the 1967 Act repose in me, discretion to issue a certificate in the limited terms suggested by the parties. Following the grant of a certificate it is by the terms of s 4(2) of the 1967 Act for the Director General (now the Secretary) to determine whether a payment is justified and the amount of costs that should be paid.

78. In my view, viewed as a whole, the omission of MM to which the Crown has drawn attention was reasonable and it is appropriate in the circumstances of this case for a certificate to be issued.

Order

79. Accordingly I grant a certificate pursuant to s 3 of the 1967 Act, specifying that in my opinion:

1. if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

Endnotes

Decision last updated: 17 October 2016