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Court of Criminal Appeal 29 April 2022

R v DB

[2022] NSWCCA 87

Sexual offences
CRIME APPEAL BY CROWN AGAINST ACQUITTALS CHARGES OF SEXUAL TOUCHING RESPONDENT SUFFERING FROM “SEXSOMNIA” QUESTION OF VOLITION RELEVANCE OF COMMON LAW DEFENCE OF NON

Citation: R v DB [2022] NSWCCA 87
Court: NSW Court of Criminal Appeal
Date: 29 April 2022
Judges: Brereton JA, Wilson J, Ierace J

Background

The respondent was tried in the District Court on an indictment charging him with three sexual offences against his young daughter. It was not disputed that he had sexually touched the complainant on two occasions. The central issue was whether his conduct was voluntary: the defence was that he was asleep at the time and acting under sexsomnia, a parasomnia (sleep disorder) in which a person engages in sexual activity while unconscious.

The Crown accepted that the respondent was asleep when the acts occurred and that his conduct was involuntary. The trial judge found the Crown had not proved voluntary action, acquitted him of the more serious charges (sexual intercourse), and then considered whether the statutory alternatives (sexual touching) should result in outright acquittals or a special verdict under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the 2020 Act").

The trial judge entered outright not guilty verdicts on all charges, concluding that sexsomnia did not constitute a "mental health impairment" under s 4 of the 2020 Act and that, in any event, s 28 of that Act did not apply to a person who acts entirely unconsciously. The Crown appealed on three grounds, raising significant questions about the construction of the 2020 Act and its relationship with the common law defence of sane automatism.

  • Whether the respondent's sexsomnia amounted to a "mental health impairment" within the meaning of s 4 of the 2020 Act.
  • Whether a "disturbance of volition" under s 4(1)(a) of the 2020 Act includes a complete absence of volition (as distinct from a disturbed or impaired exercise of will).
  • Whether s 28 of the 2020 Act, which concerns the special verdict of "act proven but not criminally responsible," can apply to acts that are entirely unconscious and involuntary.
  • Whether the 2020 Act effectively abolished or modified the common law defence of sane (non-insane) automatism in NSW.

Decision

The Court of Criminal Appeal upheld all three of the Crown's grounds of appeal. The majority (Brereton JA and Ierace J, with Wilson J agreeing on the outcome) found that the trial judge erred in his construction and application of the 2020 Act, and that the respondent's sexsomnia was capable of constituting a mental health impairment under s 4.

On the first and second grounds, the Court held that an absence of volition is encompassed within the phrase "disturbance of volition" in s 4(1)(a). The trial judge had drawn a distinction between a total absence of volitional capacity and a disturbed exercise of will, concluding that only the latter fell within the Act. The Court of Criminal Appeal rejected that distinction. A complete absence of volition is, at its most extreme, a disturbance of volition, and the statutory language does not exclude it.

On the third ground, the Court found that s 28 of the 2020 Act is not limited to persons who are conscious of their acts but lack understanding of their nature or wrongfulness. The section is capable of applying where a mental health impairment renders a person unconscious and therefore unable to know the nature and quality of their acts. Excluding unconscious acts from s 28 would produce an anomalous result inconsistent with the evident purpose of the legislation.

The Court also addressed the broader question of whether the 2020 Act abolished sane automatism as a standalone defence. The Court's reasoning proceeded on the basis that where the involuntary conduct arises from a mental health impairment as defined in the Act, the 2020 Act regime applies and the appropriate outcome is the special verdict, not an outright acquittal. The acquittals were set aside and a retrial ordered.

Orders Made

  • Grounds 1, 2, and 3 of the Crown appeal were upheld.
  • The respondent's acquittals on three offences under s 66A(1) of the Crimes Act 1900 (NSW) were set aside.
  • A retrial was ordered on the statutory alternatives to counts 1 and 2, and on count 3.

Key Takeaways

  • The Court of Criminal Appeal held that a complete absence of volition falls within the phrase "disturbance of volition" in s 4(1)(a) of the 2020 Act; the two concepts are not mutually exclusive.
  • Sexsomnia, as a parasomnia rendering a person unconscious during the commission of an act, is capable of constituting a "mental health impairment" under s 4 of the 2020 Act, notwithstanding that those who experience it typically present no psychopathology while awake.
  • Section 28 of the 2020 Act is not confined to accused persons who are conscious of their actions; it may apply where a mental health impairment has the effect that the person acted without any awareness of the nature or quality of their acts.
  • Where involuntary conduct arises from a condition meeting the s 4 definition of mental health impairment, the 2020 Act regime, including the special verdict of "act proven but not criminally responsible," displaces an outright acquittal on the ground of sane automatism.
  • The decision does not resolve all questions about the relationship between the 2020 Act and the common law; the retrial will require further consideration of these issues in light of the Court's construction of the Act.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 30
- Crimes Act 1900 (NSW), ss 66A(1), 66DA(a)
- Crimes (Appeal and Review) Act 2001 (NSW), s 107
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Interpretation Act 1987 (NSW)

Cases
- R v DB [2021] NSWDC 213 (trial judgment)
- Bratty v Attorney-General for Northern Ireland [1963] AC 386
- R v Falconer [1990] HCA 49; (1990) 96 ALR 545
- R v M'Naghten (1843) 10 Cl & Fin 200; 8 ER 718
- R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108
- Fang v The Queen [2018] NSWCCA 210
- R v Cottle [1958] NZLR 999
- R v Joyce [1970] SASR 184
- R v King [2004] ACTSC 82; (2004) 155 ACTR 55
- R v Cogdon (Supreme Court of Victoria, December 1950, unrep)
- R v Boshears (Essex Assizes, February 1961, unrep)
- H.M. Advocate v Fraser (1878) 4 Coup 70
- Fain v Commonwealth (1879) 78 Ky 183
- Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355