R v Jacob Bradley Holland

District Court of NSW|2017-03-08

Judgment

Jacob Bradley Holland is charged that on 9 November 2014 at Coffs Harbour in the State of New South Wales he did break and enter the premises of Brenda Foran, situated in Gundagai Street, Coffs Harbour, and then in the said house did commit a serious indictable offence, namely, assault Brenda Foran, occasioning actual bodily harm in circumstances of aggravation, namely, using corporal violence on Brenda Foran.
The charge is brought pursuant to s 112(2) of the Crimes Act 1900. By consent, the trial proceeded to be heard by judge alone from 2 March 2017. This judgment records my verdict and my reasons for reaching that verdict.
The elements of the offence are as follows: 1. That Jacob Bradley Holland did break and enter premises at Gundagai Street, Coffs Harbour, and 2. In the said premises did commit a serious indictable offence, namely, assault Brenda Foran, and 3. Occasion actual bodily harm in circumstances of aggravation, namely, using corporal violence on Brenda Foran.
The Crown bears the onus of proving the charge beyond reasonable doubt. That involves proving each of the elements listed above beyond reasonable doubt.
The onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. Speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference.
The accused pleaded not guilty upon arraignment on the above charge. His defence is that at all relevant times he did not have the requisite mens rea to commit the offence. Rather, he was suffering a state of automatism, namely, somnambulism (i.e. that he was sleepwalking).

The Crown case

The Crown case comprised a documentary case (Ex A1 - A16). That included statements of two police officers, Leading Senior Constable Christine Zecchinati, and Senior Constable Benjamin Cruickshank. Both officers were required for cross‑examination and their evidence is summarised below.
The Crown case also included a report from Professor David Greenberg (Ex A16), which addressed the defence of automatism based on sleepwalking. Professor Greenberg's opinion was that it was a more likely hypothesis for the accused's conduct, at the time of the alleged offence, was that he had consumed alcohol and possibly another substance such as crystal methamphetamine.
The accused's defence was supported by the opinion of Dr Jonathon Adams, forensic psychiatrist, on the question of somnambulism. Professor Greenberg and Dr Adams gave concurrent evidence in the trial. Their opinions, and their concurrent evidence is also summarised below.
Exhibit A2 to A9 comprised statements of the victim, a sketch plan of her house, coloured photographs of the injuries suffered by her, and a statement of her partner. On the basis of that evidence, the Crown has established beyond reasonable doubt that the elements of the offence were otherwise established, subject to whether the defence of automatism is available to the accused. It is clear that the assault on Ms Foran was a violent assault whereby she suffered numerous blows to her head and face and suffered considerable bruising as a result thereof.

The police evidence

Leading Senior Constable Zecchinati gave evidence that she had lengthy experience as a general duties police officer in dealing with persons who are intoxicated either by alcohol or drugs. In her statement (Ex A10), she described the accused as appearing "to be seriously affected by intoxicating liquor and/or drugs".
In cross-examination, Leading Senior Constable Zecchinati said she based that opinion on his behaviour which she described as "erratic". She said: "He just wasn't calm and how he was speaking, I just couldn't understand what was being said."
Leading Senior Constable Zecchinati had no experience of persons who were sleepwalking or of a condition known as "sleep drunkenness". She agreed the following attributes of that condition, namely, "a marked disorientation, they don't know where they are and what's going on, weak, getting to the feet, unbalanced walking, slurred speech and mumbling", were similar to someone suffering intoxication.
Senior Constable Benjamin Cruickshank also described the accused in his statement (Ex A12) as: "Well intoxicated, he was unbalanced as he walked and smelt strongly of intoxicating liquor as he slurred his speech."
Senior Constable Cruickshank gave evidence that he was presently working in licensing and had training in the licensing education program and the miscellaneous licensing course. He was also an approved operator for the breath analysing course which entitled him to be able to make assessments of persons arrested for the purpose of breath analysis. He had smelt the breath of the accused and described his words as being "completely rambled and mumbled conversation".
In cross-examination, Senior Constable Cruickshank gave evidence that he had no experience with sleepwalking or a condition called "sleep drunkenness". Whilst acknowledging the attributes of that condition were similar to intoxication, he did not accept that that was a possible reason for the accused behaving in the way he was at the time of his offending.

The Crown's expert evidence

The Crown relied on a report of Professor D M Greenberg dated 15 August 2016 (Ex A16). Professor Greenberg was qualified with the Crown brief, the report of Dr Jonathon Adams dated 4 May 2016, an interview with the accused's mother, and medical records comprising the accused's medical history.
Professor Greenberg conducted a psychiatric assessment of the accused on 18 and 21 July 2016 by audio-visual link. In relation to the alleged offence, Professor Greenberg took a history that the accused did not remember much of what happened on the night of 9 November 2014. He took a history that the accused drank "around a six-pack" of Carlton dry beer with his brother and a number of friends. He consumed the alcohol between 6pm and "9 or 10ish" and his last memory was going to bed, naked.
The accused's next memory was "lying on the ground with someone's knee in his back". He remembered a dream of being "in the world of Skyrim", a computer game of a mystical world, which he had been spending up to 40 hours per week playing at that time. At the time of his arrest, the accused did not believe it was real, but realised it was real when he was placed in the holding cells at the police station. Whilst at the police station, Professor Greenberg recorded that the accused claimed that the police had told him that he had killed a child. His brother had come to the police station and had given him some clothes.
The accused told Professor Greenberg that his mother and brother had told him that he had been a sleepwalker from the age of four and half years. He gave various examples of his sleepwalking. His history had involved two or three sleepwalking episodes per month as a child which had gradually decreased in frequency. Each episode could last between two to ten minutes approximately. On one occasion he had left his home in a sleepwalking state when he was aged 13. On other occasions he had taken cans of food from the panty and placed them in his bedroom.
The accused reported never undergoing any sleep study or specialist treatment. He was prescribed Catapres by a paediatrician, Dr Naidoo, for insomnia, but ceased that medication after two years because he felt no benefit from it.
Professor Greenberg covered the accused's past psychiatric, medical and family history comprehensibly. The accused had been diagnosed with Attention Deficit Hyperactive Disorder ("ADHD") at the age of four and half years. He was treated for that condition with medication. Since moving to Coffs Harbour at the age of 14 years, he had been under the care of a general practitioner, Dr Cheah, and a paediatrician, Dr Naidoo. The accused had also been diagnosed with Oppositional Defiant Disorder ("ODD").
Professor Greenberg took a history that from 16 years old the accused commenced to binge drink alcohol, but had ceased that behaviour in June 2014. Between June and November 2014, when the alleged offence took place, he only drank six beers per month. The accused began to smoke cannabis at age 15 years, but had ceased all cannabis use a month before the alleged offence.
The accused's mother had corroborated his medical history and history of sleepwalking.
Under the heading "Conclusions and Recommendations", Professor Greenberg noted that he was not a neurologist nor an expert in sleep disorders, however, as a forensic psychiatrist and medical practitioner, he had skills and expertise in the forensic behaviour associated with sleep disorders. He reported that sleepwalking is a Non-Rapid Eye Movement ("NREM") sleep arousal known as parasomnia. He described typical behaviour during sleepwalking which he characterised as "simple and stereo‑typed", involving blank expression and movements which tend to be "repetitive and purposeless". He also opined: "Attempts at arousal result in gradual return to full awareness, often with marked disorientation and sleep drunkenness. Dream recall is not reported and there is usually complete amnesia of what has transpired."
Professor Greenberg reported that after an episode of sleepwalking: "There may initially be a brief period of confusion or difficulty orienting, followed by full recovery of cognitive function and appropriate behaviour. Most behaviour during sleepwalking episodes are routine and of low complexity. However, cases of unlocking doors and even operating machinery such as driving an automobile have been reported."
Professor Greenberg reported that the accused's diagnosis of somnambulism had not been objectively investigated by an expert such as a neurologist or a sleep physician. However, given his reported history, Professor Greenberg was of the view that it was likely that the accused had a parasomnia diagnosis. He agreed, based on his clinical findings, with the diagnoses of ADHD and ODD in the accused.
With respect to the accused's mental state at the time of the alleged offence, Professor Greenberg set out the observations of the police officers, referred to above, and the accused's custody management record which noted findings by the custody management officer of the accused's behaviour whilst in police custody from 1.22am on 9 November 2014 until 9.29am that day.
Professor Greenberg also referred to the report of Professor Robert Weatherby dated 22 February 2016 relied on by the accused, which is summarised below.
Professor Greenberg set out the following factors which were consistent with the hypothesis of the accused having a sleepwalking episode at the time of the alleged offence:

The accused had a long history of sleepwalking episodes.
The bizarre nature of the conduct of the accused.
The fact that the accused reportedly made an "arrghh" sound at the time of the alleged violence towards the complainant.
That at the time of his arrest the police noted that he was "mumbling and yelling incomprehensibly".
That he appeared to be seriously affected by an intoxicating substance.
That he had no recall of his behaviour.
The alleged offence occurred in the first third of his usual sleep period, namely at 1am.
The accused claimed that in retrospect he thought he was in a dream where he was acting out a character from the computer game "Skyrim".
The accused's explanation of his alleged behaviour and his history of symptoms of sleepwalking disorder are to some degree consistent with a sleepwalking episode.

Professor Greenberg set out the following factors consistent with the hypothesis of the accused not having a sleepwalking episode at the time of the alleged offence:

The bizarre nature of the act.
The fact that the accused allegedly had goal directed complex behaviour whilst in the bedroom of the complainant.
The fact of further goal directed complex behaviour when he stood up and began to leave the room. This included the hallway incident where he struck the complainant six or seven times with a closed right fist.
The nature of his behaviour was complex, rather than stereo-type behaviour with repetitive and purposeless movements.

Professor Greenberg went on to state: "There is some evidence to suggest that Mr Holland was intoxicated with alcohol and/or some substance at the time of the alleged offence."
He noted that Professor Weatherby was of the view that the alleged behaviour could have been produced by three substances, namely, alcohol, GBH or an amphetamine like stimulant. Professor Greenberg opined that the length of time, namely, several hours, that the accused took to regain his composure, could be attributed to some sort of illicit substance.
Professor Greenberg was also of the opinion that the accused's account of the alleged offence to Dr Cheah would be inconsistent with a sleepwalking episode, i.e. "In this scenario he knocked on three separate doors (houses) in the neighbourhood looking for a scroll. In my opinion this would be fairly complex behaviour and less likely to be consistent with an episode of somnambulism and more likely consistent with a substance induced disinhibited state".
Professor Greenberg made it clear that his opinion, whether the accused suffered a state of somnambulism at the time of the alleged offence, was subject to an opinion from a medical sleep expert. On balance, he was of the opinion that a more likely hypothesis for the accused's behaviour at the time of the alleged offence, was that the accused had consumed alcohol and "also the possibility that he used a substance such as crystal amphetamine". The hypothesis was supported by the police evidence that he appeared intoxicated at the time of his arrest and following. For those reasons Professor Greenberg was of the opinion that "on balance, he should not be able to rely on automatism as a defence for his alleged offence".

The evidence relied on by the accused

The accused tendered by consent a bundle of medical records and reports (Exs 1.1 to 1.12). The records included clinical records, notes and reports from treating doctors, including his paediatrician and psychiatrist, together with a report from Professor R T Weatherby dated 22 February 2016 (Ex 1.1), and two reports from Dr Jonathon Adams, forensic psychiatrist, dated 4 May 2016 and 8 September 2016 (Exs 1.2 and 1.3). Dr Adams' concurrent evidence with Professor Greenberg is referred to below.
The historical clinical records and reports confirm that the accused was diagnosed with ADHD when he was four years old. His sleepwalking started around the time of that diagnosis. A diagnosis of Asperger's Syndrome was made when he was 14 years of age. He had been medicated for many years for his ADHD on Ritalin, however, that medication had been stopped a year before the alleged offence. The accused had also been diagnosed with ODD and suffered learning difficulties at school, together with anger management problems. All of those medical problems are well documented in the records of his consultant paediatrician, Dr Naidoo, prior to his offending.
The accused voluntarily underwent a drug screen 82 hours after the incident. That screen was reported on by Professor Weatherby in his report dated 22 February 2016. He was asked to provide an opinion on the following four matters: 1. An evaluation of the potential type of drug that may have produced the behaviour observed by the victim. 2. To estimate the blood alcohol concentration at the time of the incident. 3. To consider what drugs fitting the possibilities would be detectable at the time of the drug screen, and 4. To comment on the result of the drug screen.
In respect of the first, Professor Weatherby stated that the statements of the witnesses and the custody management records strongly suggested a drug which produced a lack of inhibition, impaired judgment and stimulatory aggressive behaviour, followed by an exhaustive fatigued state. There were three possibilities, namely, alcohol, GHB or an amphetamine - like CNS stimulant.
Professor Weatherby estimated that the blood alcohol content, given the history, at the time of the incident was approximately 0.02 g/100 mll. The highest BAC (after drinking had ceased) was in the vicinity of 0.08 g/100 mll.
The drug screen was taken three and half days after the incident. Professor Weatherby opined that that time was too far after the event to be of any value in detecting whether the accused had been under the influence of a drug at the time of the incident. The drug screen did not confirm that there was no influence from a drug at the time of the incident. Essentially it had no value at all.
Professor Weatherby concluded: "There most likely would have been a low blood alcohol concentration (BAC) of 0.02 g/100 mll at the time of the incident and the Police noted that there was a smell of liquor at the time of arrest which could occur with low BAC's. The presence of alcohol though does raise the possibility of a "sleepwalking" episode which the behaviour could be as the BAC earlier in the evening would have been as high as 0.08 g/100 mll and alcohol is known to trigger such episodes."
Dr Jonathon Adams assessed the accused across three appointments by audio-visual link on 31 March 2015, 1 May 2015 and 29 March 2016. He was qualified with the relevant records including the report of Professor Weatherby. Dr Adams stated the following opinions: 1. "The accused had a longstanding diagnosis of ADHD dating from early childhood. 2. The accused had a longstanding history of parasomnias in the form of sleepwalking and sleep terrors. 3. The accused's mother reported that features consistent with an Autistic Spectrum Disorder, however, these were less apparent clinically although previous treating clinicians had endorsed that diagnosis. 4. The accused had a background history of engaging in oppositional behaviour but those issues had appeared to ease over recent years.
In respect of the accused's mental state at the time of the offence, Dr Adams stated the following opinion: "Given Mr Holland's longstanding documented history of sleepwalking in the collateral information provided, together with the clear account from his mother and brother, in my view it is reasonable to consider whether the alleged offending behaviour occurred whilst Mr Holland was sleepwalking. In my opinion, the factors consistent with this hypothesis are: His longstanding history of sleepwalking; The description of Mr Holland's 'mumbling' and incomprehensible speech; His somewhat idiosyncratic behaviour of crawling along on all fours; Being naked (if it is accurate that Mr Holland went to sleep naked); and The fact that Mr Holland reported having no recollection of the alleged behaviour."
Dr Adams reported that factors that were less consistent with the alleged conduct being a manifestation of sleepwalking were: "The accused having no previous history of engaging in similar behaviour whilst sleepwalking; and The severity of the accused's alleged aggression."
Dr Adams was of the opinion that it was unlikely that the low level of alcohol could have caused the relatively extreme and idiosyncratic behaviour at the time of the alleged offence, however, it was possible that his mild intoxication could have compounded his presentation whilst sleepwalking.
In his subsequent report dated 8 September 2016, Dr Adams addressed the report of Professor Greenberg dated 15 August 2016. Dr Adams took issue, inter alia, with the history recorded by Professor Greenberg, namely, that the accused on the night in question "went to three houses". Dr Adams noted that from Professor Greenberg's discussion of the diagnoses of ADHD and ODD, together with the discussion of the possibility of an Autism Spectrum Disorder, Professor Greenberg's conclusions were broadly consistent with his own evaluation.
Dr Adams also took issue with Professor Greenberg's characterisation of the accused's conduct at or just prior to the offending as "goal directed complex behaviour".
The plaintiff also read an affidavit of Alan Holland sworn on 28 February 2017. Alan Holland was the older brother of the accused and he was not required for cross-examination on his affidavit. He deposed that on 8 November 2014 he had been with the accused all day. From 7 or 8pm, he had consumed a number of Carlton dry beers with another friend and the accused. He gave the accused two or three of his beers. They were in the lounge room of their home, and the accused was playing play station or xbox. At around 10pm, Mr Alan Holland and his friend left to go out. The accused was still in the lounge room. Approximately one hour later the deponent was contacted by police. He went straight from the Plantation Hotel to the police station where he observed the accused to be naked and hysterical. The accused told him that the police had told him that he had killed a young girl, the same age as their sister Isabella. He observed the accused to be covered in bruises to his arms, ribs and face. Mr Holland was then taken home to retrieve clothing for the accused. Finally, he deposed: "14 Jacob does these weird sleep things. He goes into a weird state and does crazy things and doesn't remember. Once he woke mum up and was insisting that I was inside a sandwich bag in the wardrobe."

The concurrent expert evidence

Both Professor Greenberg and Dr Adams agreed that somnambulism was an internal process known as parasomnia which occurred when there was activity of the brain in NREM state of sleep.
In the opinion of Professor Greenberg, observations made of the accused as noted in the custody management record of the police, were uncharacteristic of somnambulism. His period of sleep drunkenness, or sleepiness, or confusion when woken up at the police station, extended for a significant longer period than one would expect of a person who is having an episode of somnambulism or sleepwalking in the opinion of Professor Greenberg. However, Professor Greenberg agreed that there was no set rule of time for a person waking up from somnambulism to exhibit sleep drunkenness.
Dr Adams interpreted the custody management record differently. The record from 1.22am and following could be characterised as quite different from parasomnia, namely, that he was agitated as a result of being stressed by being in custody. In explanation for the difference in approach, Dr Adams referred to the custody management record in which the accused was responding verbally to the police. Dr Adams was of the view that at the time of his arrest and thereafter, there was no clear evidence to suggest that the accused was still in a state of parasomnia. The note, also referred to in Profesor Greenberg's report, that he had been told by police that he acted in a violent manner towards a child, was a reasonable stressor that might explain his agitation whilst in custody. Professor Greenberg disagreed, saying there was no distinction in his behaviour before and after arrest, rather, they were similar, namely, that he was agitated and aggressive at all times.
Professor Greenberg gave evidence that the behaviour of the accused in moving from his bed to the home of the victim was not characteristic of somnambulism. Professor Greenberg described somnambulism as usually involving routine actions of low complexity, although there were cases where people had reportedly driven cars or operated machinery. On this occasion, the actions of the accused involved him doing fairly complex, non‑routine behaviours which were not characteristic of a sleepwalking episode. In cross-examination, Professor Greenberg agreed that driving a motor vehicle involves very complex behaviour and there had been reports of people driving quite long distances very safely whilst asleep. These he described as "very rare reports', usually associated with forensic matters.
Dr Adams gave evidence that "complex" behaviour during somnambulism involves a much broader range of activity and that as psychiatrists, Professor Greenberg and himself could not be definitive about the accused's behaviour, and in particular about whether it could be characterised as goal-directed behaviour.
The witnesses were shown a sketch plan of the victim's premises (Ex A6). By entering the property and moving to the victim's bedroom, whilst dressed in the child's blue cardigan, the accused's behaviour was characterised by Professor Greenberg as goal-directed behaviour, particularly when spotted by the victim, Ms Foran, making eye contact with her before the unprovoked assault. Professor Greenberg described that as inconsistent with a somnambulism episode. Professor Greenberg stated that to describe that as a sleepwalking episode, 'it would be making sort of medical history … it's like trying to fit a square peg into a round hole".
Dr Adams, when asked, stressed that understanding the accused's behaviour was complex and to describe it as goal-directed behaviour one would need to understand clearly the goal that the accused had in mind, namely, whether it was to assault the victim. Looking at the entirety of the accused's behaviour, it was an unusual way to achieve the goal of being violent towards the victim.
Professor Greenberg was cross-examined on what he described as unusual behaviour, which he defined as behaviour that was outside the literature on sleepwalking. On the basis of the history taken from the accused's family, what occurred here was not the usual behaviour of the accused when he sleepwalked.
On the question of the accused voluntarily having a drug screen following his arrest, and whether that affected his opinion as to whether the accused was intoxicated by something other than alcohol, Professor Greenberg properly stated that that was a matter for the court. Professor Greenberg had not been provided with a copy of Dr Adams' second report, commenting on his report. He agreed, however, in cross-examination, that he had misread the history contained in Dr Cheah's report, and accepted that the accused did not go to three houses on the night in question. He agreed that he had relied on that history in coming to a conclusion that his behaviour was more likely consistent with a substance induced disinhibited state. Professor Greenberg agreed with the previous diagnoses made of ADHD, ODD and parasomnia. He also agreed that the ADHD and ODD, together with the circumstances of being naked at the police station and believing that he had been told that he had hurt or killed a child, had a contributing factor to play in his behaviour there.
He agreed that the accused waking up in a completely different house with police on top of him would have been extremely disorienting for the accused.
Professor Greenberg also acknowledged that he had listed as a factor both consistent and inconsistent with sleepwalking, the bizarre nature of the accused's conduct.
On that issue, he gave the following evidence: "Q: You do put it as one of the factors consistent with him having a sleepwalking episode and you are now saying that whilst it's there, you're saying it's very unlikely that that is a factor, is that your evidence? A: Well what was described as his you know, he's got a reported history of sleepwalking and he reported to me that when he sleepwalked he would go to the kitchen or the pantry and remove a tin of or tins of food and put it in his bed or he claimed that that had happened in the past, so you know, that would be bizarre behaviour, but I wasn't prepared to discount it completely as consistent with a somnambulistic episode, but at the same time, because of the completely nature of the activities you know, the aggression, the assault, alleged assault, leaving the home in unfamiliar territory some distance from his - that would be, you know, crawling around on the floor dressed in the top of a six year old child, is bizarre and it's not consistent with what medical practitioners would say is part of a sleepwalking episode, but I wasn't prepared to totally discount it because he reported some bizarre behaviour while he was sleepwalking at home and I didn't discount what he'd said, I gave him the benefit of the doubt."
Dr Adams would not agree with the assertion made by Professor Greenberg that this account would make medical history. He did agree that it was uncharacteristic of common behaviours exhibited during sleepwalking behaviour. However, he gave this evidence: "However, I still think that the factors of it - the fact that he has a well established history of sleepwalking, if we accept that as accurate, which I do, that is important because obviously if someone has a history of engaging in frequent sleepwalking behaviour, that increases the likelihood of it happening again. The issue of him mumbling and being incomprehensible is consistent with sleepwalking behaviour and how some people would be and also you can consider the idiosyncratic, as I put it, behaviour is perhaps consistent with sleepwalking. It's not his usual behaviour and it could be understood in those terms. I'll also comment, the fact that he was naked, if we accept that he went to bed naked and he was naked at the time of the alleged offence, then perhaps it could be presumed that that occurred in the same state of sleeping. Again, that's a factor that could be consistent with sleepwalking but we can't lose sight of the factors that aren't entirely consistent with that. Again, I would agree that the aggressive behaviour in and of itself isn't entirely consistent with what one would expect from sleepwalking behaviour and also the other couple of factors that I put in my report, but on balance, certainly my view would be that it is possible and it can't be discounted as an explanation for this behaviour."

The Crown submissions

The Crown submitted that there was a presumption that any act done by a person is done with consciousness. That is an evidentiary presumption that an act is done voluntarily, relying on R v Falconer (1991) 171 CLR 30. The Crown submitted that that evidentiary presumption could only be displaced by credible evidence that the conduct or act was not done voluntarily (relying on Falconer, supra, at p 83).
The Crown submitted that such evidence must be persuasive. It must be shown that the conduct was beyond the accused's control and that he was deprived of his capacity to control his conduct.
The Crown submitted that the court would have to be satisfied on the evidence that the accused, at the relevant time, had a mind that is "diseased or not", and whether his state of mind was affected by a "disease of the mind".
The Crown submitted that whether the accused suffered sleepwalking at the relevant time was a question of fact. The question to be determined was whether there was sufficient evidence whereby the Crown could remove reasonable doubt as to voluntariness of the accused's conduct.
The Crown supplemented its submissions with a written outline. It relied on the following passages from R v Falconer, supra: (1) per Gaudron J at p 83 - "In practical terms a claim of involuntariness which is not based on mental illness is almost certain to be treated as frivolous unless supported by medical evidence that identifies a mental state in which acts can occur independently of the will, assigns a causative explanation for that state and postulates that the accused did or may have experienced that state. …And again in practical terms, because what is postulated is of its nature, extraordinary, the evidence must be very persuasive even to raise involuntariness as a reasonable hypothesis such that a jury could find that the prosecution had failed to prove beyond reasonable doubt that the will of the accused accompanied the act charged." (2) Deane and Dawson JJ at p 61 said: "Moreover, those conditions which will admit of involuntariness that is not a product of disease or natural mental infirmity will be quite confined. A few suggested instances would seem to include: sleepwalking in some circumstances, some cases of epilepsy, concussion, hypoglycaemia and disassociative states."
The Crown referred to the speech of Lord Lane in R v Burgess (1991) 2QB 92, where at p 99 he said: "There have been several occasions when during the course of judgments in the Court of Appeal and the House of Lords observations have been made, obiter, about the criminal responsibility of sleepwalkers, where sleepwalking has been used as a self-evident illustration of non-insane automatism."
The Crown also referred to the judgment of Hunt J in R v Youseff (1990) 50 A Crim Report 1, where his Honour said: "If the accused is able to point to or produce evidence from which it could be inferred that there is at least a reasonable possibility that his act was involuntary as a result of a state of automatism, the Crown in effect bears the onus of moving the reasonable doubt thereby raised, by establishing that the act was voluntary. … Only evidence properly characterised as demonstrating sane automatism is relevant to the issue of voluntariness. The cases say that, if the evidence demonstrates that the automatism is referrable exclusively to a disease of the mind (that is, insane automatism), it is relevant only to the defence of mental illness. If the evidence is capable of demonstrating either form of automatism, then it must be left to the jury for them to decide whether (upon the evidence which they accept) the automatism was sane or insane in nature and to consider accordingly in relation to which ever issue thereby becomes relevant."
Finally, the Crown referred to Woodbridge v R [2010] NSWCCA 185 at [73]: "All that needs to be shown, therefore, for the matter of sane automatism to be left to the jury is that there should be some evidence from which it can be inferred that there is a reasonable possibility that the act of the accused was not voluntary. The matter to be determined is whether there was any evidence from which it could be inferred that there was the reasonable possibility of an involuntary act. The determination of that issue turned on the evidence of the psychiatrist."
After reviewing the authorities, the Crown conceded that ultimately it is a matter for the tribunal of fact as to whether the accused here had a disease of the mind.
The Crown submitted that at the time of the alleged conduct the accused was not in a state of automatism and is guilty as charged. It was submitted that the following evidence proved beyond reasonable doubt the accused's conduct was voluntary:

Despite the complete lack of familiarity with the home of the victim, the accused successfully entered the home without bringing attention to his immediate presence.
There were three possible door entries to the interior of the home. On any view, the negotiation of the route travelled from the accused's home until he found his way to bedroom number four was complicated.

The Crown relied on Professor Greenberg's opinion that the totality of the complex behaviour demonstrated by the accused was not characteristic of a sleepwalking episode. Further, the goal directed behaviour described by Professor Greenberg, involved the accused turning his head and looking straight at his victim. This, the Crown submitted, was consistent with a person who had been "caught red-handed" and led immediately to the assault. Further, the accused's action in the hallway of turning around and pushing the victim also amounted to "goal directed behaviour", inconsistent with somnambulism.
The Crown also relied on the evidence of Professor Greenberg that the protracted period of sleep drunkenness exhibited by the accused at the police station, was not characteristic of sleepwalking. Senior Constable Cruickshank's evidence was significant. He was steadfast in his evidence that the accused was in an intoxicated state.
The Crown submitted that it was the accused's conduct at the home of the victim which was to be closely examined. The evidence relating to the accused's conduct at the police station may assist to the extent that the abatement of agitation and aggression was consistent with the lessening effects of "intoxicating substance/s".
On the objective evidence, and the circumstances of the accused's conduct, the Crown submitted that it had proven beyond reasonable doubt that the accused's conduct was not only inconsistent with automatism, but that his conduct, albeit bizarre, was voluntary. Therefore the accused was guilty of the offence charged.

Submissions of the accused

It was submitted on behalf of the accused that the first step was that the court must be satisfied that there is evidence sufficient for the issue of automatism to be left to the trier of fact. The second step was to determine whether that evidence was capable of satisfying either sane or insane automatism defences. Thirdly, it was then a matter for the trier of fact to decide.
The accused submitted here that the evidence was capable of supporting a sane automatism direction. Once that was raised as a reasonable possibility, the onus was on the Crown to disprove it beyond reasonable doubt.
Here, if I was satisfied that the evidence constituted insane automatism, then I would give myself both directions as to sane and insane automatism.
The accused submitted that both Professor Greenberg and Dr Adams were of the opinion that the accused did not suffer a mental illness. The evidence, however, established that he was suffering a condition of sane automatism, namely, somnambulism. The Crown then had the onus of proving beyond reasonable doubt that the accused was not somnambulant at the time of the offending. The court would take into account the bizarre nature of the offending, and the fact that the accused had no motive in that he had previously had no contact with the victim, and had never been in her home. There was no rational explanation for his behaviour. Further, he was naked and it was proven that he slept naked. These factors supported a conclusion of sleepwalking over voluntary behaviour.
Professor Greenberg's opinion, that on balance the accused was intoxicated at the time of the offending was undermined by his misunderstanding of the history taken by Dr Cheah that he "went to three houses". This went to the weight of the opinion expressed by Professor Greenberg.
The Crown case relied on the opinion of the police officers as to the intoxication of the accused. However, the police officers' observations of the accused were consistent with sleepwalking. As to the evidence of Senior Constable Cruickshank, that the accused smelt of alcohol, this was not an unusual observation for a person who had consumed alcohol within a few hours of that consumption. The mere fact that he smelt of alcohol was reasonably explained by his earlier drinking.
It was submitted that the accused's conduct was consistent with sleep drunkenness as well as intoxication, and that his behaviour was consistent with someone who was awakened from sleepwalking. He was naked at the time of the offence and left naked in the dock in the police station. His distressed and agitated state thereafter could be explained by his diagnoses of suffering ADHD and ODD, as well as the belief he held, that he had been told by police that he had harmed or killed a child. It was a reasonable possibility that his conduct could be explained by those factors.
It was submitted that whilst it was possible he was intoxicated at the time of the offending, it was also a reasonable possibility that he was sleepwalking. There was nothing in the Crown case that removed beyond reasonable doubt the reasonable possibility that he was sleepwalking at the time of the offending conduct. His conduct was therefore not voluntary and he is not guilty for that reason.

Determination

Section 133 of the Criminal Procedure Act 1986 provides as follows: "133(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
The High Court's decision in R v Falconer, supra, concerned the proper construction of ss 23 and 27 of the Criminal Code (WA). Those sections fundamentally distinguished the reactions of the healthy mind and the reactions of a person suffering from an underlying mental illness. There are no equivalent provisions in New South Wales, however, the various passages relied on by the Crown and set out above, reflect the common law position when an accused raises a defence of automatism. Thus, I accept that there is an evidentiary presumption that the accused's act was done voluntarily, and that that presumption could only be displaced by credible medical evidence raising involuntariness as a reasonable hypothesis. If it can be inferred from that evidence that there is at least a reasonable possibility that the accused's act was involuntary as a result of a state of automatism brought about by sleepwalking, the Crown bears the onus of proving beyond reasonable doubt that the act was voluntary. Ultimately, that is a question of fact.
Given the medical history of the accused here, suffering parasomnia by way of sleepwalking from an early age, and which was consistently reported to his paediatrician, together with sleep terrors, I am persuaded, given the circumstances in which the alleged offending conduct occurred, namely, that the accused was naked, had gone to bed naked, and had gone to the house of the victim who was unknown to him, but a short distance away, was sufficient to raise the issue of automatism, having regard to the evidence of both Professor Greenberg and Dr Adams. It is clear that the accused was not suffering a disease of the mind which would amount to insane automatism. Rather, it could be characterised as non-insane automatism. I therefore give myself the following direction.
In order for the accused to be convicted of the offence charged, namely, assault occasioning actual bodily harm in circumstances of aggravation, his act giving rise to that conduct must be voluntary. Where an act (otherwise criminal) is done in a state of automatism, that is, without control or direction of the will of the accused over what is being done, then no crime is committed and the accused must be found not guilty. Here, automatism is raised for consideration because of the evidence of the accused's history of suffering a parasomnia state, namely sleepwalking, and the evidence that he slept naked, and was found naked in the victim's house, a short distance from his.
Although the defence has raised this issue for me to consider, this does not mean that it is the accused who bears the onus of proving that his act was done in a state of automatism. It is for the Crown to prove beyond reasonable doubt that all of the ingredients of the offence were present, and one of these is the requirement that the act was voluntary.
It is therefore for the Crown to prove beyond reasonable doubt that the act of the accused was voluntary, that is, it is for the Crown to remove any reasonable doubt from my mind as to whether the accused was acting as an automaton, divested of the control and direction of his will over what he was doing.
Automatism in this case does not involve any question of disease of the mind. It is concerned with involuntariness, which does not derive from disease of the mind or mental illness.
To summarise, unless the Crown proves beyond reasonable doubt that the act of the accused was subject to the control and direction of his will, then he must be acquitted because no offence has been committed.
As outlined above, the Crown has proved the elements of the offence with which the accused is charged beyond reasonable doubt, subject to the question of voluntariness of his conduct. The first issue to be determined is whether there is sufficient evidence for the issue of automatism to be left to the trier of fact. In the circumstances here, I am persuaded that there is, based on the following. First, the accused has a history of sleepwalking, and night terrors, from early childhood. That history continued from age four to adulthood and comprised part of his complex medical presentation right up to the time of the offending. That presentation also included ADHD with which he was medicated with Ritalin from an early age, together with ODD, learning difficulties and anxiety/anger management issues. From time to time he required medication by way of Catapres for sleep, as documented by Dr Naidoo, his paediatrician.
Secondly, the accused was naked when he went to bed in his own home shortly after 10pm on 9 November 2014. He was naked when he entered the victim's premises, a short distance from his home, until he put on the cardigan owned by the victim's daughter, which apparently was located in the laundry of those premises. Thirdly, the accused had consumed between three and six cans of beer, and I accept the evidence of Professor Weatherby that, at the time of the offending, he would have had a blood alcohol content of between 0.02 and 0.08 grams per millilitre. The opinion of Professor Weatherby, which was not challenged by the Crown, was that alcohol was known to trigger sleepwalking episodes in people who have sleepwalking issues as a child.
Fourthly, there is no evidence to support the opinion of Professor Greenberg that at the time of the alleged offence, that the accused had possibly used a substance such as crystal methamphetamine. The possibility is contradicted by the unchallenged evidence of the accused's brother, as outlined above.
Fifthly, I am not persuaded that the observations recorded in the custody management record, support Professor Greenberg's opinion. The relevant time for the assessment of the accused's sleepwalking state was at the time he was restrained by the victim's husband, and then subsequently arrested. He was clearly confused and disoriented at that time. What occurred in the ensuing hours at the police station must have been impacted upon by his naked state, his underlying and uncontroverted medical diagnoses of ADHD and ODD, together with the distress caused, as recorded by his brother, which again was unchallenged, by the fact that he had been told by police that he had caused harm to a young child.
I find that the evidence that he submitted voluntarily to a drug screen, 82 hours after the events, was equivocal, however, there was no onus on the accused to prove anything. On balance, however, I prefer and accept the evidence of Dr Adams to that of Professor Greenberg in drawing a distinction between the accused's offending behaviour and his conduct as observed and recorded in the custody management record at the police station, some hours thereafter.
I am satisfied that the evidence is capable of giving rise to the reasonable possibility of sane automatism and I have had regard to the direction I have given myself in respect of that. I am not satisfied that the accused was suffering a disease of the mind so as to give rise to a reasonable possibility of him suffering insane automatism at the time of the offending.
I am not satisfied that the Crown has excluded the reasonable possibility that the accused was suffering sane automatism by way of somnambulism at the time of the offending beyond reasonable doubt. The evidence establishes that there was no motive for the accused to target the particular victim. He had had no contact with her and had never been in her home before. I accept the submission made on behalf of the accused that there was no rational explanation for him being in the house in a naked state. The fact of the offending being of such a bizarre nature was both consistent with and inconsistent with the accused sleepwalking, as opined by Professor Greenberg. However, I cannot accept the opinion set out by Professor Greenberg, having regard to his misunderstanding of the clinical history taken by Dr Cheah. Professor Greenberg's opinion that on balance he was intoxicated, relies on the opinion of the police officers which, whilst confirming the smell of alcohol on his breath, are based on his behaviour and are otherwise consistent with someone who had been sleepwalking. Professor Greenberg also appropriately defers to the opinion of a medical sleep expert, however, no such opinion was adduced into evidence by the Crown. In those circumstances, given the concessions made by Professor Greenberg in cross‑examination as to the known behaviour of persons suffering sleepwalking to engage in complex tasks such as driving motor vehicles or machinery, whilst it is clear that the behaviour of the accused was bizarre, that evidence does not satisfy the onus of proof beyond reasonable doubt that is on the Crown here.
I do not accept the Crown's submission that the accused's conduct was voluntary for the two reasons set out in [72] above. The fact that the accused successfully entered the home without bringing attention to his immediate presence, was explained by the door lock at the rear of the premises being faulty. Notwithstanding that there were three possible door entries to the interior of the home, the route negotiated by him, inferentially by way of the laundry where he put on the child's cardigan, was not so complicated as to bespeak voluntariness, where the weight of all the evidence of all other factors weigh heavily in favour of a finding that the accused was sleepwalking.
I am therefore of the opinion that the Crown case has not satisfied, beyond reasonable doubt, the onus on it to disprove the reasonable possibility that the accused was sleepwalking at the time of the offending conduct. Therefore his conduct was not voluntary at the time of that offending, and I find the accused not guilty of the offence that he assaulted the victim occasioning actual bodily harm to her in circumstances of aggravation.
I therefore find the accused not guilty.

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