F (CA270/2019) v R [2019] NZCA 447

F (CA270/2019) v R [2019] NZCA 447 [23 September 2019]NOTE: ORDER MADE IN [2016] NZCA 180 PROHIBITING PUBLICATIONOF APPLICANT'S NAME UNDER S 200 OF THE CRIMINAL PROCEDUREACT 2011 REMAINS IN FORCE.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA270/2019[2019] NZCA 447BETWEEN F (CA270/2019)ApplicantAND THE QUEENRespondentHearing: 20 August 2019Court: Brown, Simon France and Dunningham JJCounsel: P E Dacre QC for ApplicantA J Ewing for RespondentJudgment: 23 September 2019 at 12.30 pmJUDGMENT OF THE COURTThe application for leave to recall this Court's judgment F (CA705/2015) v R isdeclined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Following a jury trial in August 2015 Mr F was convicted on one charge ofrape and two charges of indecent assault of his former wife.1 The applicant's primarydefence to most, although not all, of the charges was that he suffered from the sleepdisorder known as sexsomnia and had been asleep during the alleged offending.The Crown called Dr Antonio Fernando, a sleep expert, who deposed that sexsomniagenerally does not involve talking.[2] In May 2016 this Court dismissed Mr F's appeal against conviction findingthat the jury's verdicts were reasonable.2 The jury's verdicts were viewed asconsistent with the complainant's evidence and Dr Fernando's evidence, in particularabout the general absence of communication during a sexsomnia episode. In March2017 Mr F's application for an extension of time to apply for leave to appeal to theSupreme Court on similar grounds was declined.3[3] In June 2019 Mr F filed an application "to appeal a second time" to this Courtagainst his conviction. That application is based on new evidence from Dr Fernandowho, subsequent to the trial, appeal and further application to the Supreme Court,assessed Mr F in the capacity of a patient. Dr Fernando now states that Mr F is a sleeptalker with the consequence that some form of simple communication can occur duringor at the end of his experiencing a sexsomnia episode.[4] The Crown opposes the application contending that it amounts to anapplication for recall of this Court's earlier decision which does not satisfy any of theprerequisites for the exercise of the inherent power to recall the Court's decisionrecognised in R v Smith.4Jurisdiction[5] The jurisdiction conferred on this Court by statute does not include the powerto rehear appeals which have been finally disposed of. However the Court has an1 He was either found not guilty by the jury or discharged by the trial Judge on eight further charges.2 F (CA705/2015) v R [2016] NZCA 180 [Court of Appeal decision].3 F (SC129/2016) v R [2017] NZSC 34 [Supreme Court decision].4 R v Smith [2003] 3 NZLR 617 (CA).inherent power to revisit by way of recall earlier decisions in exceptionalcircumstances when required by the interests of justice to do so. In R v Smith thenature of that power was described in this way:5Such power is part of the implied powers necessary for the Court to "maintainits character as a court of justice". Recourse to the power to reopen must notundermine the general principle of finality. It is available only where asubstantial miscarriage of justice would result if fundamental error inprocedure is not corrected and where there is no alternative effective remedyreasonably available. Without such response, public confidence in theadministration of justice would be undermined.[6] As this Court recently explained in Lyon v R three preconditions must be metfor such a recall:6(a) a "fundamental error in procedure";(b) a substantial miscarriage of justice if the error is not corrected; and(c) the absence of an alternative effective remedy.[7] The Court emphasised that the power of recall is narrow, based onimpeachment of the appellate decision, that being the decision sought to be recalled.7In the context of the third precondition, the point was made that, whereas a first appealcourt which has determined an appeal finally is functus officio, that is not the case fora second appeal court whose jurisdiction depends on leave.8 The Court explained:9Leave may be granted, inter alia, if that court is satisfied that a (substantial)miscarriage of justice may have occurred, or may occur unless the appeal isheard. That ground is particularly applicable to factual or evidence-basedcriminal appeals (or renewed appeals based on new evidence) which may notraise issues of general or public importance.(Footnotes omitted.)5 At [36].6 Lyon v R [2019] NZCA 311 at [27].7 At [29].8 At [30].9 At [17].The trial[8] Throughout their marriage from 2007 to 2012, by the complainant's accountthere were many occasions when she would wake to find Mr F engaged in some formof sexual activity with her, sometimes penetrative, but usually some form of fondlingor touching. The complainant did not like it and it became a point of contention in themarriage. When it first occurred Mr F claimed that he must have been suffering fromsexsomnia.[9] Initially the complainant believed him. However as time went by she began todoubt that Mr F was acting unconsciously, particularly after his acknowledgement thathe had been awake during the incident which is the subject of charge 8 discussedbelow. The complainant also read that asking a question could prevent sexsomniafrom occurring.[10] Mr F had not had a professional diagnosis of sexsomnia. However at trial theCrown called Dr Fernando who gave general evidence on the condition confirmingthat it exists as a variation of parasomnia, a recognised sleep disorder. Dr Fernandohad personally treated 10 to 15 patients who complained of the disorder and he wasfamiliar with the specialist literature. He gave evidence that someone with this typeof disorder could be asleep while performing sexual acts but based on his patients'reports there was generally no communication during sexsomnia.[11] Mr F was found guilty on charges 4, 8 and 10. The charges are described inthe Supreme Court's decision in this way:10[8] Charge four alleged sexual violation by rape and was said to haveoccurred between 7 March 2007 and 31 December 2008. The complainantsaid that she woke up, face down in the bed with Mr F on top of her, havingsexual intercourse. She said "no" and resisted but could not get away.Mr F did not desist. Just before ejaculation, he said "I'm going to come",a remark he would make during consensual intercourse. The next day,according to the evidence of the complainant, Mr F admitted to rememberinghaving made the remark but said that he "wasn't awake enough to stop". In hispolice statement, which was before the jury, Mr F said he had a brief memoryof only one event where he was at "that point knowing I'm about to ejaculatebut not knowing how I got there" and that, even if he had wanted to stop,he would not have been able to.10 Supreme Court decision, above n 3.[9] Charge eight alleged indecent assault, said to have occurred between1 November 2011 and 31 August 2012. According to the complainant theincident in question followed similar incidents on two preceding nights.She awoke to hear Mr F asking, "[a]re you awake?" She was, by this stage,suspicious of his claimed sleep disorder and feigned sleep. He moved herhand slowly towards his penis. When she confronted Mr F about this, heinitially maintained that it was another incident of sexsomnia but lateracknowledged that it was not.[10] Charge 10 was a representative charge of indecent assault.The complainant said that on a number of occasions she woke up to find thatMr F rubbing his erect penis on her bottom. On one of these occasions,she asked him what the time was. He looked over at a clock near the bed andtold her and, as she was falling asleep, he rolled over and resumed rubbing hispenis against her bottom.(Footnotes omitted.)Subsequent judgmentsThis Court[12] On appeal to this Court Mr F argued that the jury's verdicts were unreasonableor inconsistent. The Court considered there was sufficient evidence to raise the realpossibility, even the probability, that Mr F had the sleep disorder, sexsomnia.[13] Discussing charge 4 the Court observed:11[30] In our view, and looking at the evidence as a whole, the jury mightwell have decided to give Mr F the benefit of the doubt that most of theincidents charged against him could be excused by sexsomnia. However, forcharge 4, the jury was entitled to accept the complainaint's evidence that Mr Facted normally and just as he would during conscious sex. The phrase"I'm going to come" was typical of his normal sexual practice. His admissionthat he had some memory of saying that and of the incident, coupled withDr Fernando's evidence that generally there is no communication during anact occasioned by sexsomnia, could be relied on by the jury.It held that the jury was entitled to find that such factors negated the reasonable doubtthat might otherwise arise from the sexsomnia evidence.1211 Court of Appeal decision, above n 2.12 At [31].[14] With reference to charge 10 the Court noted that the complainant gave clearevidence of Mr F responding to her question about the time and then ceasing theconduct for a while before resuming it, concluding:[35] It is not inconsistent with other verdicts of acquittal that the jury tookthe evidence of the communication from Mr F to be a distinguishing featuresufficient to negate a reasonable doubt that might otherwise be raised by theevidence of sexsomnia.[15] The Court noted that charge 8 did not involve sexsomnia and that Mr Fadmitted that he lied to the complainant about that.13The Supreme Court[16] The Supreme Court did not consider that the evidence at trial was such that, inthe absence of a formal diagnosis, it was possible to conclude, as the Court of Appealsuggested, that there was a probability that Mr F suffered from sexsomnia (as againsta possibility that he was so suffering).14 In relation to the rape charge the Courtconcluded:[22] For completeness, we note that the jury had been told to acquit if theyconsidered there to be a reasonable possibility that Mr F's actions were notdeliberate because of sexsomnia. If the jury had accepted as a reasonablepossibility that Mr F's account may have been true and therefore that he wasnot awake enough to stop, then it is axiomatic that his actions were notdeliberate. It is clear by their verdict that the jury had rejected his account.The application for recall[17] After his release from prison Mr F was able to consult with Dr Fernando whodiagnosed him as having the sexsomnia condition. Mr F applied for leave to callDr Fernando as a witness on the following grounds:• Dr Fernando is of the opinion that in his particular circumstancesMr F could have communicated during a sexsomnia episode andthat the description given by the complainant in relation to the rapecharge is consistent with Mr F experiencing an episode ofsexsomnia.13 At [32].14 Supreme Court decision, above n 3, at [7].• This Court held that coupled with Dr Fernando's evidence thatgenerally there was no communication during an act occasioned bysexsomnia, the jury was entitled to find that at the time of theincident, Mr F was not experiencing an episode of sexsomnia.• If the fresh evidence now provided by Dr Fernando is accepted, thenbecause of Mr F's particular combination of medical conditions,his behaviour would be consistent with an episode of sexsomnia.• In these circumstances the jury verdict would have beeninconsistent with the fresh evidence and a miscarriage of justicewould have occurred.Dr Fernando's evidence[18] Dr Fernando gave the following evidence at trial concerning the occurrence ofcommunication during a sexsomnia episode:Q In your experience is, from the partner's perspective, is therea difference between what might be called a normal sexual experiencein the partnership or the marriage versus an incident where it's thoughtthe person was actually asleep?A Yes sir. Partners most of the time will know that the event was sleeprelated, so a common, I remember a recent patient well the wife sayingnormally the patient during sex when he's awake is quite caring,is focussed on pleasuring the woman and however when he's in hissleep sex mode it's very selfish, aggressive and just doesn't factor inthe needs of the other person. And I've heard something similar witha lot of the other stories, so patient or partners can (inaudible )differentiate if it's sleep sex or normal sex.Q In terms of the, in your experience when someone's having,undergoing an incident of sleep sex so that the patient is asleep but isengaging in sexual activity. To what extent can there be or is there, inyour experience, communication between the patient and the partner?A Again this is just based from my patients or partner's reports is thatgenerally there's no communication. In fact the description is they'rejust in their own world, just totally just zoned out while in the processof sleep sex.Q So they're asleep?A Parts of their brain's asleep in terms of the communication connectionaspect but the other part of the brain involved in mechanical sexualmovement is engaged. And I think it's one of the reasons partners candifferentiate if the behaviour is sleep related or normal sex, becauseof the communication if it occurs or doesn't occur.[19] Dr Fernando swore an affidavit dated 15 December 2018 which confirmed thisevidence as being his general experience of communication during a sexsomniaepisode. The affidavit then noted that he was never invited to express an opinion asto whether the verbal communications from Mr F at the time of intercourse wereconsistent with him having sexsomnia.[20] A report dated 10 December 2018 annexed to the affidavit recorded that Mr Fasked Dr Fernando to review his case with a view to (1) providing a diagnosis ofsexsomnia and (2) reviewing the general comments Dr Fernando made in evidence atthe trial. In the report Dr Fernando provided a diagnosis of sexsomnia for Mr F.With reference to the issue of verbalisation, the summary at the end of the reportstated:The report that [Mr F] has made verbalizations prior to ejaculation can still bepart of a sexsomnia episode as [Mr F] is described as a light sleeper. It ispossible that he came to superficial consciousness in the process ofejaculation, which is an intense physiological and psychological process.In addition, he is a known sleep talker, who comments occasionally ondisturbances around him.Sleep talking could occur during or at the end of the sexsomnia episode,especially if the patient is also a sleep talker like [Mr F].In both above explanations, verbalization does not necessarily suggest fullconsciousness and awareness of events.[21] Dr Fernando's affidavit referred to a literature review and specifically to a casestudy published by Dr Colin Shapiro which is said to describe four cases of sexsomniawhere sleep talking also occurred. Dr Fernando then stated:24 In general, coherent, verbal communication is not commonly reportedby partners of patients with sexual parasomnias. In fact, intelligentverbal communication typically suggests that the person is awake, canprocess cognitive information and respond back to the other party.Generally, patients in a sleep walking or sexsomnia episode areunlikely to talk, and if spoken to, will speak gibberish.[22] He then noted that the evidence suggested that Mr F is a superficial sleeper andeasily responds to external stimuli. He stated:26 It also suggests that [Mr F] can easily have conversations in thecontext of superficial sleep.27 His parasomnia condition is not limited to sexual behaviours butaccording to the complainant, has components of easy sleeparousability and verbal communication. Because of his superficialsleep and ease of being momentarily partially aroused in response toan external or internal stimulus, it is possible that he will briefly talkabout what's pertinent at the moment e.g. children getting up,movement of a bed partner, responding to a question, other eventsgoing on around or for him physically.[23] Dr Fernando then proceeded, as requested, to comment on this Court'sjudgment relating to charges 4 and 10 in this fashion:32 In respect of charge 4, [Mr F] apparently used the [phrase] "I'm goingto come", which was typical of his normal sexual practice. There isalso an admission that he had some memory of saying that.33 In respect of charge 10, the complainant woke to find [Mr F] rubbinghis erect penis against her bottom. She asked [Mr F] "what's thetime". His response, she said, was to look over, check the clock andtell her the time. He then rolled away from her. But, after a littlewhile, he rolled back to her and began to rub himself against her again.[Mr F] did not remember the incidents.34 I am recorded as expressing the view that in general there is nocommunication during an act occasioned by sexsomnia. As Iexplained earlier, that is my experience. Also, I was not commentingspecifically about [Mr F's] case.35 However, in [Mr F's] case, the incident described in the Court ofAppeal decision can be consistent with being part of a sexsomniaepisode.36 This would be consistent with [Mr F] being a sleep talker and at thepoint of climax becoming briefly conscious.37 I have another patient who has behaved in this manner. In my otherpatient's experience, he wakes up just prior to or during the processof climax.38 For both charge 4 & 10, sleep talking, or some form of simplecommunication can occur during or at the end of the sexsomniaepisode especially if like [Mr F], the patient is also a known sleeptalker. The complainant detailed accounts of [Mr F] also being easilyroused briefly by external stimuli. In [Mr F's] case, short verbalcommunication does not necessarily indicate full consciousness orawareness of the situation.[24] He concluded in this way:41 Having reviewed all the material including [Mr F's] medical history,the court and disclosure records and the literature, I am of the opinionthat the verbal communications occurring during or at the end ofa sexual episode as described by the complainant can be consistentwith [Mr F] experiencing an episode of sexsomnia.Submissions of counselApplicant's submissions[25] Addressing the three recall preconditions Mr Dacre QC identified as thefundamental error the fact that the Court of Appeal had relied on the general evidenceof an expert witness to the effect that sexsomnia generally does not involve talking.However the new evidence of Dr Fernando provides clarification and demonstratesthat the fact that Mr F made statements during the relevant incidents is not inconsistentwith the defence of sexsomnia.[26] With reference to the rape charge Mr Dacre submitted that there was somecommunication just before ejaculation but it did not follow that Mr F was consciouseither prior to or after the making of the statement and in particular during the courseof the incident. He argued that with the benefit of the new evidence the jury could nothave been satisfied beyond reasonable doubt that Mr F was acting consciously duringthe incident. At the highest the jury could have concluded that he was conscious atthe time of ejaculation and in the situation where it was too late to either desist or forman intention to continue.[27] Mr Dacre contended that the same proposition applied to charge 10, namelythat the reported communication occurred at the end of the incident and there was noevidence offered by the Crown that Mr F was conscious prior to this. He submitted:When the complainant asked [Mr F] a question, he then responded. It doesnot follow that he was awake prior to the question being asked. The noise andany body movement associated with the act of asking the question could haveawoken [Mr F] enough to respond. This is consistent with her evidence thatafter a period, [Mr F's] behaviour continued. This could mean that he relaxedback into the sleep from which he was awoken.[28] Mr Dacre acknowledged that the new evidence did not extend to charge 8 butsubmitted that it needed to be viewed in the context of charges 4 and 10. He arguedthat even though it did not involve a sexsomnia issue it was artificial to separate itfrom the other two charges. If at the end of the day charge 8 was the only chargeremaining, then that charge should be reconsidered as a matter of credibility.[29] Mr Dacre submitted that a recall of this Court's judgment was the onlyreasonably available remedy. While acknowledging that he had given thought toa further application for leave to appeal to the Supreme Court, he considered this caseturned on its own facts given the fact the same witness was involved and there was, ineffect, unfinished business because the evidence at trial did not paint a completepicture.Respondent's submissions[30] Ms Ewing first submitted that the recall jurisdiction is available wheresomething has gone seriously wrong with the appeal process, not the trial process.15Furthermore the recall jurisdiction is unavailable in fresh evidence cases which bycontrast are paradigm cases for resort to s 406 of the Crimes Act 1961.16[31] She submitted that Mr F's proposed appeal is based on new evidence, and that,as Lyon v R makes clear, this cannot found an application for recall of this Court'sjudgment on appeal.17[32] Noting Mr F's argument that the s 406 procedure was "not a practical" remedyin this case, Ms Ewing observed that no reason was offered why that might be so.She contended that the application did not establish that a miscarriage of justice wouldoccur unless the appeal was reopened, drawing attention to this Court's observationthat charge 8 did not involve sexsomnia at all. Mr F had admitted that that assaultoccurred when he was awake.[33] Finally Ms Ewing commented that Mr F had been represented by the samesenior counsel throughout the trial, the appeal to this Court and this application.She submitted that absent a waiver of privilege, Mr F's explanation for the absence of15 Referring to the discussion in Lyon v R, above n 6, at [28]–[29]; and McMaster v R [2016]NZCA 612 at [58].16 A v R [ 2011] NZSC 84 at [5]–[6].17 Lyon v R, above n 6.evidence both at trial or on an appeal could be given limited weight and without trialcounsel's response it was impossible to undertake any meaningful assessment of themerits.Discussion[34] The application for recall was based squarely on the footing that fresh evidencehas been obtained, which was not available either at trial or on appeal, which suggeststhat verbal communications by Mr F occurring during or at the end of a sexual episodeas described by the complainant could be consistent with Mr F experiencing an episodeof sexsomnia. In those circumstances Ms Ewing's submission is sound that Lyonmakes clear that there is no basis for an application for recall, no qualifying error inthe appellate process having been identified.18[35] We do not consider that the fact that the source of the claimed fresh evidenceis a witness who gave evidence at the trial provides a reason for departing from Lyon.At the trial Dr Fernando was a witness for the prosecution and gave evidence ofa general nature as to the phenomenon of sexsomnia. Since the proceedings he hasaccepted Mr F as a patient. The evidence which it is proposed that he would give forthe defence is based on his consultation with and diagnosis of Mr F. We do notconsider that this scenario is different from the situation where it is sought to adduceevidence from a new witness not previously involved in the proceeding.[36] We agree with Ms Ewing that the appropriate courses of action for Mr F inthese circumstances are either a further application to the Supreme Court for leave toappeal or an application under s 406 of the Crimes Act.[37] It is significant that Dr Fernando records in his affidavit that he was asked tocomment only in relation to charges 4 and 10. We infer that the reason that he was notreferred to charge 8 is because it is apparent that it did not involve sexsomnia giventhat Mr F admitted that the relevant assault occurred when he was awake.The practical difficulty for Mr F is that while he initially claimed he had no memoryof the incident, as this Court's judgment records he acknowledged in his interview18 At [34].with the police that he initially lied to the complainant about the incident and heaccepted that potentially he acted with a sexual motive.19[38] Even if we considered it was appropriate to grant an order for recallnotwithstanding our views above, we have significant reservations about theadmissibility of the proposed evidence in any event.[39] First evidence will only be received on appeal as fresh if it has becomeavailable since the trial or could not with reasonable diligence have been called.20[40] Dr Fernando's opinion has been formed subsequent to the proceedings asa consequence of his interaction with Mr F as a patient. However his view isdependent to a very considerable extent upon the police interview with thecomplainant and the Shapiro case study which was published in the Canadian Journalof Psychiatry in 2003. We do not consider that the foundation proposition that Mr Fmay speak in his sleep is something which was not known at and could not have beenpursued in cross-examination of Mr F at the trial.[41] Secondly an expert's opinion is admissible if the jury is likely to obtainsubstantial help from the opinion either in understanding other evidence in the case orin ascertaining any fact that is of consequence to the determination of the proceeding.21[42] Dr Fernando commenced the discussion of his opinion in his affidavit bynoting that the Shapiro case study describes four cases of sexsomnia where sleeptalking also occurred. In the first of those cases the wife of the patient describedinstances in which he "screamed and talked in his sleep". In the second the patient'swife stated that "there probably were times that he had spoken in his sleep("mumbling")". In respect of the third it was stated that the patient's sleep history was"significant" for sleep talking and on one occasion sleep walking. In respect of thefourth it was said that the patient's sleep history was "notable" for sleep talking andsleep walking.19 Court of Appeal decision, above n 2, at [18].20 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].21 Evidence Act 2006, s 25(1).[43] There was no further detail in the case study to suggest that the sleep talkingwas responsive to questions, nor that it was coherent. Nor was it expressly noted thatthe sleep talking occurred during an episode of sexsomnia, as opposed to the individualsimply experiencing both sexsomnia and sleep talking in their sleep histories.The case study did not provide evidence different from Dr Fernando's statement in hisaffidavit that generally patients in a sleep walking or sexsomnia episode are unlikelyto talk, and if spoken to, will speak gibberish.[44] In the circumstances of this case where Dr Fernando gave unchallengedevidence of his general experience and Mr F had admitted in respect of one relevantevent that he had lied, we do not consider that the proposed opinion evidence specificto Mr F would be likely to provide substantial help for the fact finder.Result[45] The application for leave to recall this Court's judgment F (CA705/2015) v Ris declined.Solicitors:Crown Law Office, Wellington for Respondent