A second court has ruled a man who twice sexually abused his young daughter should be acquitted of the charges because he was asleep at the time.
The man, known as DB, told the NSW District Court last year he experienced "sexsomnia" and the sexual assaults he perpetrated in 2019 were completely involuntary.
He pleaded not guilty to charges of sexual intercourse with, and sexual touching of, a child, saying the acts were caused by parasomnia, which is akin to sleepwalking.
Last week a bench of the Court of Criminal Appeal (CCA) upheld the not guilty verdicts handed down after a judge-alone trial in April 2021, with two of the three justices agreeing it was the correct decision.
Prosecutors had appealed the verdicts arguing the trial judge was wrong in finding DB was not suffering from a mental impairment causing a "disturbance of volition" when he abused his child.
The Crown argued for the special verdict of "act proven but not criminally responsible" to be made under the Mental Health and Cognitive Impairment Forensic Provisions Act.
Justice Helen Wilson, the lone dissenting member of the CCA bench, agreed with the Crown that the evidence showed DB had been affected from a disturbance of volition under the Act.
She proposed to quash the verdicts and order a retrial, but her view was in the minority.
Legal academic Elyse Methven said the dissenting judgement of Justice Wilson was in the spirit of the new Act introduced in 2021 to protect the public while modernising the approach to mental health in NSW’s court system.
"Her Honour took into account the purpose of the provision, which clearly has community safety in mind," she said.
"It shows how the new legislation can lead to informed minds logically coming to very different conclusions."
Dr Methven, senior lecturer at the Law Faculty of the University of Technology Sydney, said there was a "significant" difference between an acquittal and the special verdict, which may result in indefinite incarceration.
If the special verdict is delivered, a person could be held indefinitely if it's believed they posed a risk to the community.
An acquittal allows the person to walk free.
The concept of "automatism", or involuntariness, is not an uncommon defence in the law and has featured in high-profile cases including car crashes, rape and murder.
Dr Methven said one famous example was the 1992 Parks case in Canada where a man drove 20 kilometres to the home of his in-laws, bludgeoned his mother-in-law to death and attacked his father-in-law. Parks was acquitted as he performed the acts while in a state of parasomnia.
In 2019, a father and son from Sydney's northern beaches were acquitted at trial of a bizarre pub rampage after a judge found the men had not acted voluntarily.
Michael and Dean McGlinchey hopped from pub to pub challenging people to fights and assaulting several patrons on June 11, 2017.
Their actions, which included Dean McGlinchey breaking a pub stool over a man's head, weren't disputed when they appeared before the courts.
The father Michael McGlinchey argued he had entered an automaton state without control of his actions due to "manic" side effects of anti-depressants.
Psychiatric experts said those side effects were rare but possible and could have explained the incidents labelled "savage, unprovoked and seriously disturbing" by Judge Ian McClintock.
Judge McClintock ultimately found the Crown hadn't proved Michael McGlinchey had acted voluntarily, while he ruled Dean McGlinchey was experiencing paranoid hallucinations.
"I think the public would be shocked to learn what some people can do while they're asleep, and the results in some of these cases," Dr Methven said.
In DB's trial, it was not disputed he touched his daughter sexually on at least two separate occasions in June and November 2019.
Nor was there argument about whether he was asleep and had no control over his actions.
Both times he touched his daughter, then aged 9, while sharing a bed with her.
On the second occasion the girl had come into her father's room in the middle of the night after being woken by loud noises outside.
She asked if she could sleep with him, he said yes before apparently falling asleep and abusing her.
She left the room shocked and returned to her bed.
The man was arrested the next day after the girl returned to her mother's house and the incident was reported to police.
The girl told police her father was snoring during at least one of the incidents.
But prosecutors alleged DB's sexsomnia was an ongoing mental health impairment causing the incidents, which could occur again in the future.
The defence argued someone suffering from a parasomnia had a complete "absence of volition" and an otherwise sound mind.
Trial judge Richard Weinstein ultimately found the prosecution had failed to prove on the balance of probabilities any mental health impairment had been at play.
It was concluded the man was merely asleep, and therefore not criminally responsible for his actions.
"Thus that Act has no application in the circumstances, and I enter verdicts of not guilty to the [charges]," Judge Weinstein said.
Dr Methven described the majority judgement in DB as a “technical” interpretation of the Act which may set a new precedent in NSW for similar cases.
She added it may have also exposed a "gap in the law" and believed a further appeal to the High Court could follow.
"Clearly some will be concerned that an acquittal was not the right result for this man," she said.
"The case exposes a potential gap in the law. And certain violent or sexual acts might fall through the cracks."
