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District Court 13 September 2024

R v Mendis

[2024] NSWDC 420

Sexual offences
SEXUAL OFFENDING MULTIPLE CHILD COMPLAINANTS JUDGE ALONE TRIAL DEFENCE OF AUTOMATISM.

Citation: R v Mendis [2024] NSWDC 420
Court: District Court of New South Wales
Date: 13 September 2024
Judge(s): Mahony SC DCJ

Background

The accused was a youth leader at a church in Newington who faced 15 counts of sexual offending against three male complainants, all of whom were minors and members of his church youth group. The alleged conduct occurred between approximately 2014 and 2016 during sleepovers at various premises and on camping trips. Counts 1 to 12 involved allegations of sexual intercourse and indecent assaults against one complainant (JR); Count 13 alleged aggravated indecent assault against a second complainant (MM); and Counts 14 and 15 alleged indecent assaults against a third complainant (ES).

The parties agreed that physical contact between the accused and each complainant had occurred and that the evidence was capable of establishing the acts alleged. The sole issue at trial was whether those acts were carried out voluntarily by the accused. The accused was elected for trial by judge alone and raised the defence of automatism, contending that he suffered from sexsomnia, a recognised parasomnia disorder, and that the offending conduct occurred while he was asleep and therefore not acting voluntarily.

The Crown accepted that the accused had discharged the evidential burden of raising automatism as a reasonable possibility, meaning the prosecution bore the onus of negating it beyond reasonable doubt.

Legal Issues

  • Whether the accused discharged the evidential burden of raising the defence of automatism (specifically sexsomnia-induced involuntary conduct)
  • Whether the Crown proved beyond reasonable doubt that the alleged acts were willed and voluntary, and were not the product of sexsomnia
  • Whether tendency evidence was available to establish that the accused had a sexual interest in males aged 12 to 16 years, and whether reliance on it would involve circular reasoning
  • Whether verdicts by direction were warranted on any counts due to insufficient evidence

Decision

Issue 1: The Defence of Automatism and Sexsomnia

His Honour accepted the expert evidence of Dr Fernando, a consultant psychiatrist and sleep specialist with extensive experience in diagnosing sexsomnia, that the accused met the diagnostic criteria for sexsomnia under DSM-V and that it was a reasonable possibility he was suffering from that condition at the time of each alleged offence (at [144]). Crucially, Dr O'Dea, the Crown's own expert, also concluded that the accused met the criteria for a non-REM parasomnia with sleep-related sexual behaviour and expressed that it was difficult to exclude sexsomnia, and he was not prepared to make a finding of malingering (at [67], [77]). The overnight sleep study showed three abrupt arousals from slow-wave sleep with vocalisation, which was supportive, though not conclusive, of a non-REM parasomnia diagnosis (at [29]).

His Honour found the three complainants to be honest and generally reliable witnesses who each described the accused as either asleep or appearing to be asleep during the offending conduct (at [132]). The court accepted there was no conversation during any of the offending conduct, noting that JR confirmed the accused was never talking and touching his penis simultaneously, and that on occasions when JR attempted to initiate activity differently, the accused would flinch or roll away (at [133]-[135]). The court accepted MM's evidence that when confronted the morning after, the accused appeared shocked and said he was sorry and that he had been asleep (at [137]). Evidence from multiple witnesses at unrelated sleepovers further established a pattern of the accused making involuntary physical contact, including placing arms over others and cuddling them, while plainly asleep (at [141]).

His Honour concluded that it was a reasonable possibility at the time of each alleged offence that the accused was asleep and suffering from sexsomnia, meaning the acts were neither willed nor voluntary (at [151]). The Crown failed to negate beyond reasonable doubt the defence of automatism (at [152]).

Issue 2: Tendency Evidence

The Crown sought to rely on tendency evidence to establish that the accused had a sexual interest in males aged 12 to 16 years and acted upon that interest in circumstances of authority and risk of detection. His Honour rejected that submission. The court found that the accused's over-familiar and tactile behaviour with young people was explicable as a reflection of his general personal traits and his zeal in his pastoral role, rather than evidence of a sexual interest in that group (at [145]). No rational inference could be drawn that the accused had a sexual interest in males aged 12 to 16 years (at [146]).

The court also accepted the accused's submission that using the alleged offending to establish tendency, and then using that tendency to prove the acts were voluntary, would constitute impermissible circular reasoning (at [147]).

Issue 3: Verdicts by Direction

The Crown conceded before the close of its case that there was no evidence establishing the elements of Counts 4 and 11. His Honour entered verdicts of not guilty by direction on those two counts (at [129]).

Orders Made

  • Verdicts of not guilty entered on all 15 counts (Counts 1 to 15) on the Indictment
  • Counts 1 to 3, 5 to 10, and 12 to 15: not guilty (defence of automatism not negated beyond reasonable doubt)
  • Counts 4 and 11: not guilty by direction (insufficient evidence of the elements)

Key Takeaways

  • The District Court confirmed that where an accused raises the defence of automatism (including sexsomnia) as a reasonable possibility, the burden falls on the prosecution to negate it beyond reasonable doubt, and that burden is not discharged merely by showing the accused met criteria for the condition without excluding the possibility he was asleep at the relevant time (at [82], [151]-[152]).

  • Where both prosecution and defence experts agree that an accused meets the diagnostic criteria for sexsomnia and neither is prepared to find malingering, that concurrence significantly constrains the court's ability to reject the defence on the basis of expert evidence alone (at [84], [101]).

  • Relying on uncharged acts of alleged sexual offending to establish a tendency, and then using that tendency to prove voluntariness in relation to those same acts, may constitute impermissible circular reasoning and is not available to the prosecution (at [147]).

  • A body of lay evidence from multiple witnesses describing the accused making involuntary physical contact while asleep at unrelated sleepovers, combined with complainants consistently describing the accused as appearing to be asleep during offending, can together support a finding that automatism was a reasonable possibility across multiple counts (at [132], [141]).

  • Accused persons who engage in sleep-related physical contact inconsistent with their conscious values and who respond to confrontation with shock and remorse rather than denial of contact may present features courts assess as consistent with genuine sexsomnia rather than malingering (at [137]-[138], [144]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986 (NSW)

Cases
- KRM v The Queen (2001) 206 CLR 221
- R v DB [2022] NSWCCA 87
- R v Falconer (1990) 171 CLR 30; [1990] HCA 49
- R v Markuleski (2001) 52 NSWLR 82
- Velevski v The Queen (2002) 187 ALR 233; [2002] HCA 4