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

Copyright in the High Court of Australia

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 resulted in an outright acquittal.  However, with developments in the last century and this century in the sciences of neurology and psychiatry, including the study of sleep, the shortcomings of aspects of the common law approach to mental health in general – and included in that its attitude to parasomnias – including the outdated notion of a disease of mind have been recognised.

In New South Wales in 2020 the Mental Health and Cognitive Impairment Forensic Provisions Act was introduced as a response to the perceptions of the shortcomings of the common law, and with it came a new definition of a mental health impairment.  The 2020 Act has modernised and broadened the range of mental health conditions that fall under the operation of the Act.  It has codified the diversionary pathways and therapeutic outcomes that are available to offenders who suffer a mental health impairment, including in relation to summary matters, the dismissal of summary charges, and in relation to indictable charges, the provision of a special verdict.

As outlined in our special leave submissions at paragraphs 31 to 32, the Act was introduced to implement the recommendations of two New South Wales Law Reform Commission reports, reports 135 and 138.  The aim of the amendment of the – I withdraw that.  The aim on the enactment of the new legislation was not simply to translate the common law into statute; it was to modernise the law as it applies to people with mental health impairments with the stated object of taking into account the safety and experiences of victims as well as to prioritise the safety of the community.

In our submission, on a proper construction of the Act, which I will come to in a moment, there is no basis to read the common law concepts into the new definition in the manner in which the majority of CCA engaged in, in this case.

GAGELER J:   Ms Dowling, you mentioned historically parasomnia as being the classic case given as an example of non‑insane automatism at common law.  Was parasomnia addressed in any of those working materials that you have just referred to, as a phenomenon.

MS DOWLING:   . . . . . no.  The concepts were discussed more broadly.

GAGELER J:   You really need to explain as a matter of construction – I suppose you are coming to this – how a person can be said to have volition while asleep.

MS DOWLING:   Yes, and I will come to that, if I may, in a moment, your Honour.  Just very briefly, if I may remind your Honours of the facts of the offending, there are aspects of the facts which are relevant to the statutory definition.  On two separate occasions in 2019, the respondent, who is the father of the complainant, sexually touched his nine‑year‑old daughter during episodes of parasomnia.

The first occasion, the complainant was sharing a bed with her father.  She was woken up by him putting his hands on her underwear, touching her vagina.  On the second occasion, she was also in bed with her father and he started touching her around her genitalia and on her breasts and he tried to – he said to her – he told her to put her leg away and mumbled a few words in the course of that episode, including saying something about – using the word “pussy”.  Relevantly to the submission I am going to develop, on both occasions the respondent had consumed a substantial amount of alcohol.

Your Honours, turning to the issue of what a parasomnia is, as I have already addressed, the criminal law has traditionally – and it is not the case that this is the way parasomnias are regarded in the UK or Canada anymore, and I will come to that too – but traditionally the common law has – the criminal law has regarded sleep as a state where the sleeper lacks volition because they are asleep.  And because traditional formulations of criminal responsibility hold that people who act involuntarily should not be held criminal responsible, a person who commits otherwise criminal acts while asleep has historically been entitled to an acquittal.

However, developments in modern psychiatry and neurology ‑ ‑ ‑

GLEESON J:   I am sorry, I was having a technical glitch over here.  Can I ask a question, Ms Dowling.  I understand that this appeal proceeds on the basis that the relevant acts were not voluntary.  I think that is clear.

MS DOWLING:  That is correct.

GLEESON J:   I just wonder whether introducing the idea of sleep might be unhelpful because it seems that the concept of sleep might be a bit of a blunt one in this context.

MS DOWLING:   Thank you, your Honour.  We say that the concept of sleep is unhelpful, and it is a distraction, and it is one, we say, that ultimately completely distracted the majority in the CCA.  I might jump to the provisions of the Act to illustrate that point.  Section 4 is in the application book at page 165.  That is the definition section in the 2020 Act.   Your Honours will see there that “mental health impairment” is defined as – at 4(1)(a):

the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and –

the relevant words in that definition for this case are “disturbance . . . of volition”.  Her Honour Justice Wilson defined “volition” as:

the capacity to act deliberately a consequence of choice –

That is in her Honour’s reasons at paragraph [168], which we say is a useful and correct definition of the word “volition”.  So, we have:

a temporary . . . disturbance of . . . volition –

in 4(1)(a).  Section 4(1)(b) provides:

the disturbance would be regarded as significant for clinical diagnostic purposes –

and then (c) provides that:

the disturbance impairs –

in this case:

the behaviour of the person.

Now, whether the person is awake or asleep – as your Honour Justice Gleeson has adverted to – really has no bearing on whether one falls within the definition in section 4(1).  If I can come back briefly to ‑ ‑ ‑

GLEESON J:   Ms Dowling, sorry, I had another question about the concept of absence and disruption of – disturbance.  I think I read somewhere that the suggestion that this condition could be treated by sedative medication, is that part of the evidence?

MS DOWLING:   Yes, it is.

GLEESON J:   In other words, that if someone who was suffering from a sexsomnia took a medication, that might have the effect of causing them to be more heavily unconscious during sleep and therefore less inclined to commit an act that would be, if willed, a criminal act.

MS DOWLING:   That is correct.  There are a number of aspects of supposed treatment.  They include abstention from alcohol – which is a non‑trigger for parasomnias – treatment with sleeping drugs, making sure that safe habits are healthy – the person has enough sleep and at the right times – and even the physical act of locking the door, if one is sleeping in a household where there are other people.  It is dealt with in the application book at pages 44 through to 51.  So, it is a treatable condition.

The evidence at trial was that parasomnias are better described – are properly described – as an abnormality of the mind.  This is the evidence of Dr Fernando, where the person has a partial consciousness – that is, parts of their brain are awake, and parts of it are asleep.  At application book 44, Dr Fernando’s evidence is referred to where he notes that if a person with a parasomnia:

cannot be considered fully conscious.

At application book 121, her Honour Justice Wilson, paragraph 94, sets out an extract from the Canadian Journal of Psychiatry, but the authors note that sexsomnia involves an impairment of consciousness and awareness.  It:

“lies between certain types of sleep‑specific disorders . . . and dissociative psychiatric disorders on the other”.

It is also, as your Honours will be aware, a specific defined mental disorder in the Diagnostic and Statistical Manual of Mental Disorders, the DSM‑5.  Part of the diagnostic criteria for sexsomnia is that it be recurrent, and there was evidence led at trial that not only were there these two charged episodes, but there was evidence from the respondent’s ex‑wife, ex‑girlfriend and current partner that they had also experienced sexual contact from the respondent while he appeared to be asleep.  The expert evidence at trial was that to be a mental disorder it:

“has to cause a significant impact in terms of a person’s functioning”.

And that is at application book 123, CCA 101.  This latter criterion from DSM‑5 ties into the statutory definition at 4(1)(b), which is that the disturbance has to be clinically significant.  Dr Fernando gave evidence at trial that he considered sexsomnia to be a mental disorder – that is referred to at application book 43 – and he also gave evidence as to possible treatment.  In relation to the question ‑ ‑ ‑

STEWARD J:   Ms Dowling, could I ask, can you remind me, if we were to hear this matter, is there any expert evidence that was given below that is in conflict with other expert evidence, or is all the expert evidence going in one direction?

MS DOWLING:   In relation to the key question of whether the respondent suffered from sexsomnia, the evidence was all ad idem, and it was accepted by the Crown that he did have that condition.  There were some discussion at trial about whether that constituted a “disease of the mind” within the old, common law terminology, and there was a disagreement between Dr Ellis, on the one hand, and Dr Fernando on that point.  However, our position in this Court is that that is not a relevant inquiry, given that that phrase is not used within the new statutory definition.  But there is no dispute between the experts that the respondent had that condition, and that it is a recognised condition.

STEWARD J:   Can I ask, would we need to sort out any conflicting evidence in relation to subparagraph (b) of section 4(1)?  That is, whether it is regarded as significant for clinical diagnostic purposes.

MS DOWLING:   No, in our submission, the Court would not be required to do that because he has been diagnosed with the condition.

STEWARD J:   Right.  Thank you.

MS DOWLING:   Thank you, your Honour.

GLEESON J:   Ms Dowling, one other question.  Does this appeal have any consequences for any legislation outside of New South Wales?

MS DOWLING:   Yes, we say that it does have significant impacts despite the fact that the legislation is New South Wales legislation.  The common law test of “disease of the mind” is still either . . . . . in other jurisdictions or it informs the interpretation of statutory definitions in other jurisdictions.  In Western Australia, the Northern Territory, the Australian Capital Territory and South Australia there are statutory definitions for the terms “mental illness” and “mental impairment”.  In all States, the definition of “mental illness” is based on the common law meaning of “disease of the mind”, however, and the common law continues to inform the meaning of the phrase in those other jurisdictions.  Our submission is mental health impairment as defined under the New South Wales Act draws . . . . . common law definition.

In Queensland, Tasmania and Victoria, the insanity defence has been codified by statute.  However, in each of those States, the relevant qualifying condition has been left undefined.  It has been a “mental disease” or “natural infirmity”; “mental disease”, “mental impairment” are other phrases used, and they have been treated in the case law as equivalent to “disease of the mind”.  So, we say that there is a broader application to the questions raised on this appeal than merely confined to New South Wales.

Your Honours, I have taken you to the definition in section 4.  If I could just reiterate that the definition in section 4 in no way imports the common law test.  Section 28 is the codified version of M’Naghten and I will come to that briefly.  Turning to the CCA decision, we say that the majority, through the judgment of his Honour Justice Brereton, completely misapprehended the questions that arose on the appeal by positing at application book 87 that:

the larger question which arises is whether the effect of the 2020 Act is effectively to abolish the “defence” of “sane automatism” –

We say that question was wrong.  The question was whether the respondent’s parasomnia was a mental health impairment within the meaning of section 4 and, if so, whether section 28 then applied to his conduct so to enliven the special verdict provisions.

GAGELER J:   Ms Dowling, I am particularly interested in your answer to paragraph 56 of Justice Brereton’s judgment.  I think he gets to the point that you say is the point.

MS DOWLING:   We say that the absence of volition due to being asleep misses the question which is posed in section 4.  The absence of volition was due to the condition of parasomnia, which, we say, is a mental health disturbance.

GAGELER J:   Perhaps I can just ask this:  what is the volition involved that is disturbed?  How do you define the volition that is disturbed?

MS DOWLING:   The volition that is absent or disturbed is the choice to interfere sexually with the child or not, in this case.  It is the choice to do the acts that constitute the actus reus of the offence.  We say the fundamental error in the approaches of the majority is that while sleep is a normal condition, sleep violence or sleep sex with a child is not a normal condition.  So, by focusing on the condition of sleep, the court erred in failing to consider the condition of parasomnia – which was, we say, the irrelevant mental health impairment – and brought the respondent within the purview of the Act. 

At CCA 56, his Honour found that sleep was ordinary functioning, whereas we say sleep sex with a child is not ordinary functioning.  It is a result of a defect or a disturbance of volition which brings that conduct clearly within the purview of 4(1)(a).

Your Honours, I just was going to address on the situation in Canada and the UK where parasomnias have been held to be a disease of the mind for the purpose of the common law.

GAGELER J:   Thank you, Ms Dowling.  I do not think we need to go into the comparative question for the purpose of special leave.

MS DOWLING:   Thank you, your Honours.

GAGELER J:   Yes, Mr Strickland.

MR STRICKLAND:   Your Honours, we say that special leave should be refused because there are insufficient prospects of success.  We dispute that there is any relevance in this case to jurisdictions outside New South Wales.  There is no similar definition to section 4 outside New South Wales.

In relation to the first point about insufficient prospects, the case turns on the construction of “mental health impairment” in section 4. If I could take the Court to application book 165, the critical words in section 4(1)(a) are “disturbance” and “volition”, and there is no dispute between the parties, or between the majority and Justice Wilson, about the meaning of those words. The important word is “disturbance”. Both Justice Wilson and the majority held that means an interruption of proper functioning. Volition is, as my learned friend Ms Dowling has said, the act or power of willing or the exercise of choice to determine a particular action.

Now, this appeal turns, really, on two paragraphs in Justice Brereton’s judgment and it turns on the question, in my submission, posed by Justice Gageler, which is the issue of volition and disturbance of volition.  Those two critical paragraphs are paragraphs 56 and 58 of Justice Brereton’s judgment at application book 111 and 112.

Justice Brereton held that the respondent had no disturbance of volition; because he was asleep, there was a total absence of volition.  His Honour held, in our submission, correctly, that to say that someone has no volition when you are asleep cannot be a disturbance of volition because it is no interruption of the ordinary function of volition; rather, it is the ordinary function – that is, when someone is asleep, one has no volition.  It is put very succinctly by his Honour at paragraph 60.  If I can just ask your Honours to turn to that.

STEWARD J:   Could I ask, did any of the experts give evidence about that proposition?  Namely, that there is a dichotomy between having volition and then not having it because one is asleep.

MR STRICKLAND:   Yes.  The answer to that question is yes, your Honour.

STEWARD J:   Thank you.

MR STRICKLAND:   Could I ask your Honours to turn to paragraph 56 of the judgment, the last sentence.  His Honour’s conclusion about this distinction between a disturbance of volition and absence of volition, Justice Brereton says correctly:

though not dependent on –

but is supported by:

Dr Ellis and Dr Fernando, which were accepted by the trial judge –

I will take your Honours to what Dr Ellis says in relation to that.  If your Honour goes to – it is summarised in Justice Wilson’s judgment.  If your Honour goes to application book 49, there is a summary of Dr Ellis’ evidence.  The very last – well, of the entire paragraph is relevant – paragraph 201, ending in it was Dr Ellis’ opinion that:

there is a difference between a disturbance and an absence of volition.

Justice Steward, if I can segue off that into your Honour’s question – was the expert evidence all one way – the answer to your Honour’s question is yes.  And it is not simply that all the experts said that the respondent suffered from sexsomnia.  More importantly, the evidence was – from both the key experts, Dr Ellis and Dr Fernando, who opined on this – that a sexsomnia does not constitute a disease of the mind, or indeed, in Dr Ellis’ opinion, does not constitute a mental health impairment because of this difference between an absence of volition and a disturbance of volition.  In other words, because they are asleep, it is an otherwise normal mind; there is no – I think the word was:

no psychopathology when awake and conscious.

GLEESON J:   Is it part of your argument, Mr Strickland, that the concept of disturbance in 4(1)(a) incorporates, or is coextensive, with the disease of the mind?

MR STRICKLAND:   No, it is not, your Honour.  It is not coextensive of that.  What we say is this case was decided on a very narrow basis.  I can, again, return to what Justice Brereton says at paragraph 58.  We say that – excuse me for one moment.  Sorry, your Honours.  What Justice Brereton held at paragraph 58 is that what Justice Weinstein actually held was limited to the faculty of volition whilst a person is asleep.

In other words, neither Justice Weinstein nor the majority held a disturbance of volition – if there is an absence of one of the four matters in section 4 – that is, mood, volition, perception, or memory – you can have an absence of those conditions, and it could be a disturbance, depending upon the particular facts.  But the facts in this case turned on the respondent being asleep, and because when one is asleep there is no disturbance of volition, because when one is asleep, one never has volition.  That really goes back to Justice Gageler’s question:  what is the evidence in this case, or how does one say there is a lack of volition?

GLEESON J:   Mr Strickland, the way, as I understood it, that Ms Dowling put it, was that your client’s volition would ordinarily be described as a choice not to interfere with his child, but as a result of a parasomnia he engaged in an act – which was an involuntary act – which was to interfere with his own daughter.  Why is that not correctly described as a disturbance of his volition?

MR STRICKLAND:   The reason is, your Honour, because when he is engaged – because the parasomnia does not cause the lack of volition.  That is the behaviour.  What causes the lack of volition is his being asleep.  Let us say, for example, a person with a well‑recognised diagnosis of schizophrenia was to commit a criminal act whilst asleep.  It is the fact that the schizophrenic was asleep that is the relevant issue in terms of whether there is a disturbance of volition.  In other words, what Justice Brereton held is that you cannot say there is a disturbance of volition when a person does not act when asleep because anyone who is asleep lacks volition, so there is no disturbance of an ordinary function.

What Justice Wilson held, your Honour, is that the problem with that finding is that if one has the absence of one of those conditions – thought, mood, volition, perception – you can have an absence of one of those conditions and still have a disturbance of volition.  That was something recognised by Justice Brereton himself, again at paragraph 58.  His Honour held ‑ ‑ ‑

GAGELER J:   Mr Strickland – I am sorry.  I notice that there is a causal element that is built into section 28, which I am looking at on page 166.  The:

mental health impairment –

must have:

had the effect that the person –

either (a) or (b).  Was this put as an (a) case or a (b) case?

MR STRICKLAND:   I am sorry, your Honour, could your Honour just repeat that question?

GAGELER J:   Yes.  I am looking at section 28(1) and I can see that a causal element is built into the chapeau.

MR STRICKLAND:   That is right.

GAGELER J:   That:

mental health impairment . . . had the effect that the person –

and then (a) or (b).  Was this case run as (a), or (b), or both?

MR STRICKLAND:   Both.

GAGELER J:   Thank you.

MR STRICKLAND:   Your Honour, can I just turn to section – another reason why we say that there are insufficient prospects of success is that even if – because the respondent was asleep at the time he committed the acts, it cannot be said that it was the mental health impairment that had the effect that he did not know the nature and quality of the act.  It was not the sexsomnia that caused him not to know the nature and quality of the act.  It was the fact that he was asleep. 

The other relevant part of section 28 – and this really gets back to Justice Steward’s question – is there is a statutory presumption which is reflected in the common law, that a defendant – it is presumed that the respondent did not have a mental health impairment.  To answer Justice Steward’s question, all the evidence went one way, and that is that this respondent did not have a mental health impairment. 

In my submission, it is very difficult – indeed, in this case, it could not be the case that the applicant can prove that the applicant had a mental health impairment when no expert evidence was called to adduce that fact.  No expert evidence was adduced which supported the proposition – the requirement in section 4(1)(b) – that his disturbance “be regarded as significant for clinical diagnostic purposes”.  The evidence which was accepted by Justice Weinstein from Dr Ellis and Dr Fernando was all one way; he did not have a mental health impairment.

If this matter was to be decided by the Full Court, there would be no evidence upon which the Full Court could find that he had a mental health impairment, or that the mental health impairment was significant for clinical diagnostic purposes, or that that mental health impairment had the effect that the respondent did not know the nature and quality of his act.  That, in my submission – in other words, there is no evidence to rebut the statutory presumption.  The Crown decided, although they knew what the issue was, not to call any evidence which supported the statutory preconditions for the finding of a special verdict.

Your Honour, can I just go back to this issue of the critical parts of paragraphs 56 and 58.  Excuse me for one moment.  Could I just turn to paragraph 58 of Justice Brereton’s judgment, because, really, the issue turns on whether this particular paragraph in combination with paragraph 56 is correct or not.  His Honour held that:

a person who is asleep is naturally and ordinarily without volition, rather than having his or her ordinary volition disturbed.

What is important is – and this is what answers Justice Wilson’s concern about the construction of the Act – that is not a holding that an absence of a particular faculty is never a mental health impairment and cannot be caught by section 4.  The holding is confined to the faculty of volition in a person who is asleep.

So, to answer Justice Gageler’s question, I think asked at the beginning – how does one say that there is volition when one is asleep – the answer is, from the majority judgment, there is no such volition and it is an ordinary function of being asleep, and if it is an ordinary function of being asleep, it cannot be as disturbance, which is a disruption of an ordinary function. In my submission, if that proposition is correct – and we say it is – then that is the answer in relation to whether it is the mental health impairment of section 4(1)(a).

To answer Justice Gleeson’s question – sexsomnia disturbs the behaviour of the respondent, but it does not disturb the volition. That is what the majority held, and we say that must be right. Your Honours, that simple point really is our – so, in short, we have two – we say the construction is correct and, in any event, the evidence for the existence of a mental health impairment satisfying section 4(1)(a) or (1)(b) or section 28 is all one way and it is against the applicant.

If the Court pleases.

GAGELER J:   Thank you, Mr Strickland.  Ms Dowling, do you have anything in reply?

MS DOWLING:   Yes, thank you, your Honours.  As your Honours have seen in our written submissions, we say that the CCA asked itself the wrong question.  The question is not whether sleep is a disease of the mind or, in the new terminology, a mental health impairment, but whether parasomnia is a mental health impairment.  The cause of the disturbance of volition in this case was the parasomnia, not the fact that he is asleep.  We say that the Court failed to apply the provisions of the Act because it was preoccupied by the question of whether this conduct was a disease of the mind according to the common law.

At paragraphs 59 and 60 of the judgment, application book 112 to 113, we say that the first sentence in paragraph 59 is a completely wrong question.  This is the question – whether a parasomnia such as sexsomnia constitutes a disturbance of volition – because that is the statutory definition in 4(1).

I also draw to your Honours’ attention the last clause or the last sentence in paragraph 59, at the top of application book 113, where his Honour introduces a completely new phrase:

the action of the subconscious mind.

as an explanation for the act of the sleepwalker . . . . . imagine that that falls fairly and squarely within the definition of a disturbance of volition.  My learned friend suggested that the cause of a lack of volition in sleep.  I have already addressed you on that.  The expert evidence was that the cause of the unwilled acts – sexual acts committed on the child – were the parasomnia, not the condition of being asleep.

GAGELER J:   Have you addressed the causal question that is posed by section 28?

MS DOWLING:   Thank you, your Honour.  If this was a 28(1)(a) case – and there is a reference to that in application book 50; the reasons of the trial judge at paragraph 206 – that is, that he did not know the nature and quality of the act because of his parasomnia.  They are intrinsically linked with each other, the condition of being in this disturbed state of consciousness, which is the defining characteristic of a parasomnia, and the doing of acts that you do not know the nature and quality of as a result of that condition.

GAGELER J:   When you use the language “disturbed state of consciousness”, is that the language of the experts?

MS DOWLING:   The experts refer to different phrases at application book 112.  It is called an “abnormality” of an otherwise normal brain, fractured consciousness – the phrases are in our written submissions; they are collected there.

Thank you, your Honours.

GAGELER J:   Yes, thank you, Ms Dowling.  The Court will retire momentarily to consider the course it will take.

AT 11.22 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

GAGELER J: We are not satisfied that the case presents as an appropriate vehicle for the consideration by this Court of the construction of the expression “disturbance of volition” within section 4(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.  Special leave is refused.

The Court will now adjourn to 11.45 am.

AT 11.31 AM THE MATTER WAS CONCLUDED