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‘Sexsomnia’ and the Legal Defence of Automatism in NSW Courts

A Sydney man has been found not guilty of several sexual offences against children after raising evidence that he was asleep and suffering from ‘sexsomnia’ during the incidents, and that he was therefore acting involuntarily – a requirement for the legal defence of automatism in New South Wales.

There have been rising concerns about the defence and how such horrible offences could be committed while asleep.

THE CASE

Aaron Mendis, 32, stood trial in the NSW District Court inside Sydney’s Downing Centre before he was this week found not guilty of 15 charges, including 11 counts of having sexual intercourse with a person under 16 years, relating to three young boys.

He successfully argued that it could not be excluded that he was asleep during all of the incidents and that his actions were involuntary.

He stood trial alleged to have had sex with one boy on multiple occasions and he was also alleged to have indecently assaulted two other boys.

He faced a judge-alone trial over the last month before he was on Friday found not guilty of all counts after Judge Phillip Mahony concluded the defence of automatism could not be ruled out.

“Having regard to the whole of the evidence I find that it was a reasonable possibility at the time of each alleged offence that the accused was asleep, and suffering from sexsomnia and therefore the acts carried out were not either willed or voluntary acts of the accused,” Judge Mahoney said.

The court heard there was no dispute that the sexual acts occurred.

THE LEGAL DEFENCE OF AUTOMISM IN NEW SOUTH WALES

Sane automatism refers to circumstances where a non-recurrent mental malfunction results in a person being unable to control their actions. The mental malfunction must be caused by an external factor, which was out of the person’s control. This may involve a physical incapacitation, or a psychological one.

Examples of sane automatism include offences committed whilst sleepwalking, suffering an epileptic fit or while under the influence of anaesthetic. Sane automatism can also occur when one’s conduct is the result of severe psychological trauma or post traumatic distress disorder.

For a defence of sane automatism to be raised, there are some essential elements that must be present:

  1. Some external factor caused the person to act the way they did;
  2. The actions were involuntary or unintentional; and
  3. The actions were not a result of a mental illness, rather a non-recurrent mental malfunction.

When this defence is raised, it is not the accused’s responsibility to prove that they were acting in a state of automatism. Rather, the prosecution must prove that the accused was acting voluntarily.

LEGAL DEFENCE OF INSANE AUTOMATISM

Insane automatism arises when a ‘disease of the mind’ is present. This means that the accused’s state of mind was one of disease, disorder or disturbance arising from some condition. This disease or illness must have influenced the person’s actions or understanding of those actions.

When the defence of insane automatism is raised, the accused must prove on the balance of probabilities that:

  1. They were suffering from a ‘disease of the mind’ (i.e. mentally ill) at the time of the act; and
  2. As a result of this illness or disease, the accused did not appreciate the nature and quality of that act, or, did not know that it was wrong.
Legal Defence of mental health impairment or cognitive impairment
28 Defence of mental health impairment or cognitive impairment

(1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person-

(a) did not know the nature and quality of the act, or

(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

(2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.

(3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect (4) In this Part,

“act” includes-

(a) an omission, and

(b) a series of acts or omissions.

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