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District Court 25 May 2021

R v DB

[2021] NSWDC 213

Sexual offences
CRIME SEXUAL OFFENCE INDECENT ASSAULT MENTAL HEALTH IMPAIRMENT VOLUNTARINESS CRIMINAL RESPONSIBILITY

Citation: R v DB [2021] NSWDC 213
Court: District Court of New South Wales
Date: 25 May 2021
Judge: Weinstein SC DCJ

Background

The accused, the father of the complainant, faced three charges arising from two separate incidents in 2019. The complainant was nine years old at the time of both incidents. The charges included two counts of sexual intercourse with a child under ten years contrary to s 66A(1) of the Crimes Act 1900, and one count of intentional sexual touching of a child under ten years contrary to s 66DA(a) of the same Act.

The first incident occurred on 30 June 2019 at a home in Camden, where the accused and the complainant were sharing a bed in a spare room at the home of longstanding family friends. The Crown alleged the accused digitally penetrated the complainant while she slept. The second and third counts arose from an incident on or about 2 November 2019 at the accused's apartment in Wollongong. The complainant had moved into the accused's bed after being frightened by noise outside. The Crown alleged the accused then touched her genitals, digitally penetrated her, and touched her breast.

The accused pleaded not guilty to all charges. He did not dispute that the physical acts occurred, but argued they were involuntary, caused by a condition known as sexsomnia, a parasomnia (sleep disorder) similar to sleepwalking. The central dispute was whether sexsomnia constituted a "mental health impairment" under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act), which carried consequences for the verdict available to the court.

  • Whether the physical acts alleged in the three counts were proven to the requisite standard, including whether digital penetration (as distinct from mere touching) occurred in any of the incidents.
  • Whether the acts, accepted by the Crown to have been involuntary, were caused by sexsomnia.
  • Whether sexsomnia constitutes a "mental health impairment" as defined by s 28 of the MHCIFP Act 2020.
  • Whether the appropriate verdict was outright acquittal (involuntary act, no mental health impairment) or a special verdict of "act proven but not criminally responsible" (involuntary act resulting from mental health impairment).

Decision

The Crown conceded, and the court accepted, that the accused's acts were involuntary. The defence conceded that a reasonable person would regard the touching as sexual. The two issues remaining for determination were therefore whether penetration occurred on any count, and whether the accused's condition amounted to a mental health impairment under the MHCIFP Act.

The court examined expert evidence on sexsomnia. Sexsomnia involves sexual behaviour, including touching and in some cases penetration, performed while a person is asleep and without conscious awareness or control. The accused had a documented history of parasomnia, including prior sleepwalking episodes. The court considered both domestic and international authorities on sleep disorders and automatism, including Canadian decisions such as R v Parks, R v Luedecke, and The Queen v Luedecke, as well as established principles from Bratty v Attorney-General for Northern Ireland and R v Falconer.

The critical legal question was whether sexsomnia fell within the definition of "mental health impairment" in s 28 of the MHCIFP Act, which would trigger the special verdict rather than a full acquittal. The court engaged closely with the statutory definition and the expert evidence to determine the character of the condition. The distinction mattered because a special verdict of "act proven but not criminally responsible" carries potential consequences for the accused, including possible orders for supervision or treatment, whereas a full acquittal does not.

The judgment (the full reasoning of which is not reproduced in the available text) required the court to make findings on each count separately, applying the agreed elements framework and the criminal standard of proof. The matter was tried by judge alone pursuant to an order made under s 133 of the Criminal Procedure Act 1986, with the consent of both parties.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where a defendant raises involuntariness based on a sleep disorder such as sexsomnia, the court must determine not only whether the acts were involuntary, but also whether the underlying condition constitutes a "mental health impairment" under s 28 of the MHCIFP Act 2020, as the answer determines whether a special verdict or an outright acquittal is appropriate.
  • The District Court treated sexsomnia as a recognised parasomnia capable of negating voluntariness, drawing on expert evidence and a body of international case law including Canadian authorities on sleep-related automatism.
  • Under the MHCIFP Act 2020, if the Crown proves the physical act occurred but fails to prove voluntariness, and separately establishes on the balance of probabilities that the accused had a mental health impairment, the court must enter a special verdict of "act proven but not criminally responsible" rather than acquitting the accused outright.
  • Conversely, where the Crown fails to prove voluntariness and also fails to establish mental health impairment on the balance of probabilities, a full acquittal follows, regardless of whether the physical acts are otherwise proven.
  • A judge alone trial under s 133 of the Criminal Procedure Act 1986 requires the court to set out in its judgment both the principles of law applied and the findings of fact on which it relies, making the reasoning transparent and capable of review.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HA, 61HB, 66A(1), 66DA(a), 80AB(11)
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- Bratty v Attorney-General for Northern Ireland [1963] AC 386
- Cvetkovic v R [2010] NSWCCA 329
- Fleming v The Queen (1998) 197 CLR 250
- Hawkins v The Queen (1994) 179 CLR 500
- R v Chhay (1994) 72 A Crim R 1
- R v Falconer (1990) 171 CLR 30
- R v Milloy (1991) 54 A Crim R 340
- R v Minari [2005] NSWCCA 226
- R v Parks (1992) 75 CCC (3d) 287
- R v Rabey (1977) 37 CCC (2d) 461
- R v Stone (1999) 134 CCC (3d) 333
- The Queen v Cottle [1958] NZLR 999
- The Queen v Luedecke (2008) 93 OR (3d) 89