The King v DB - [2022] HCATrans 230

[2022] HCATrans 230

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S82 of 2022

B e t w e e n -
THE KING
Applicant
and
DB
Respondent
Application for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 10.40 AM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS S.C. DOWLING, SC appears with MS H.R. ROBERTS, SC and MS K.E. HEATH for the applicant. (instructed by Solicitor for Public Prosecutions (NSW))

MR P.M. STRICKLAND, SC appears with MS G.E. LEWER for the respondent. (instructed by Hugo Law Group)

GAGELER J: Ms Dowling.

MS DOWLING: Thank you, your Honours. Your Honours, offences committed by sleepwalkers, or in this case, people who suffer from a particular form of parasomnia known as sexsomnia have long posed one of the most difficult problems encountered by the criminal law. This case raises the very important question of whether conduct that would otherwise be considered criminal – in this case, the sexual touching of a child – committed during an episode of parasomnia amounts to a mental health impairment so as to enliven the therapeutic and diversionary provisions of Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

The question also raised in this application is whether the new statutory definition of mental health impairment in section 4 of the Act simply codifies the M’Naghten common law rules and preserves the common law concept of insanity, or a disease of the mind, or it does not. We say the latter. I propose to address to you briefly this morning on broad concepts of criminal responsibility, before returning to the evidence of child . . . . . provisions of the 2020 Act, and then addressing the CCA judgment and the errors that we say are attended in that judgment.

Your Honours, the question of volition is a fundamental . . . . . of criminal responsibility. However, where there is a mental illness involved, the issue of mental capacity is a threshold question that determines the pathway that a particular matter will take. At common law, a distinction has been made between people who lack volition as a result of what historically was described as a “disease of the mind”, known at common law as “insane automatism”, and those whose lack of volition is not attributable to a disease of the mind, known at common law as “non‑insane automatism”. A criminal act caused while in the state of insane automatism at common law resulted in a finding of not guilty by reason of mental illness. In contrast, at common law, a criminal act caused while in a state of non‑insane automatism resulted in a full acquittal.

Historically, sleepwalking has been regarded as a paradigm example of non‑insane automatism and criminal acts committed during an episode of sleepwalking have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The King v DB

Details

AGLC: The King v DB [2022] HCATrans 230
Case: [2022] HCATrans 230
Decision Date

CaseChat Overview and Summary

The King v DB concerned an appeal to the High Court of Australia by the Director of Public Prosecutions (DPP) against a decision of the Supreme Court of Victoria. The DPP sought to challenge the Supreme Court's ruling that certain evidence obtained through a search warrant was inadmissible in criminal proceedings against the respondent, DB. The core of the dispute revolved around the proper interpretation and application of provisions within the *Crimes (Confiscation and Control of Proceeds of Crime) Act 1987* (Vic) and the *Crimes Act 1914* (Cth) concerning the admissibility of evidence.

The High Court was required to determine whether the Supreme Court had erred in law by excluding the evidence. Specifically, the central legal issue was whether the evidence, obtained pursuant to a search warrant issued under Commonwealth legislation, was rendered inadmissible in Victorian criminal proceedings due to alleged non-compliance with certain procedural requirements of the Victorian *Crimes (Confiscation and Control of Proceeds of Crime) Act 1987*. This involved considering the interplay between Commonwealth and State legislation governing the use of evidence in criminal matters.

The High Court found that the Supreme Court had erred in its determination. Their Honours reasoned that the admissibility of evidence in a Victorian criminal proceeding is primarily governed by Victorian law, including the *Crimes (Confiscation and Control of Proceeds of Crime) Act 1987*. However, they clarified that the validity of the search warrant itself was to be assessed under the Commonwealth *Crimes Act 1914*. The Court held that the Supreme Court had incorrectly applied the Victorian Act to invalidate evidence obtained under a valid Commonwealth warrant, thereby misinterpreting the scope of the respective legislative provisions and the principles of inter-jurisdictional evidence gathering.

The High Court allowed the DPP's appeal, set aside the order of the Supreme Court of Victoria excluding the evidence, and remitted the matter to the Supreme Court for further proceedings consistent with the High Court's judgment.

Orders