R v Mendis [2024] NSWDC 420

District Court New South Wales

Medium Neutral Citation: R v Mendis [2024] NSWDC 420 Hearing dates: 27 August 2024 – 9 September 2024 Date of orders: 13 September 2024 Decision date: 13 September 2024 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Verdicts of not guilty Catchwords: Sexual offending; multiple child complainants; Judge alone trial; defence of automatism. Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 (NSW) Cases Cited: 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 Category: Principal judgment Parties: Aaron Mendis (the Accused) Director of Public Prosecutions (NSW) (the Crown) Representation: Counsel: Mr D Carroll (the Accused) Mr J Tunks (the Crown)

Solicitors: Ms S TambyRajah (the Accused) Ms L Vander Reest (the Crown) File Number(s): 2021/00161244, 2021/00161263 & 2022/00070993 Publication restriction: Pursuant to s578A of the Crimes Act 1900 and s15A of the Children (Criminal Procedure) Act 1987 the names of the complainants or any matter which is likely to lead to the identification of the complainants, must not be published.

JUDGMENT

Introduction 1. Upon arraignment on 27 August 2024 the accused pleaded not guilty to the following 15 Counts on the Indictment:- 1. Between the 31st day of December 2014 and the 12th day of May 2015, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of the age of 14 years, in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis. 2. Between the 31st day of December 2014 and 12th day of May 2015, in Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of the age of 14 years in circumstances of aggravation, to wit, JR was under the authority of Aaron Mendis. 3. Between the 31st day December 2014 and the 12th day of May 2015, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of the age of 14 years in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis. 4. Between the 31st day December 2014 and the 12th day of May 2015, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of the age of 14 years in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis. 5. Between the 31st day December 2014 and the 12th day of May 2015, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of or above the age of 14 years and under the age of 16 years, namely, a person of the age of 14 or 15 years, in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis. 6. Between the 31st day of December 2014 and the 12th day of May 2016, at Castle Hill, in the State of New South Wales, did assault JR, a person then under the age of 16 years, namely, 14 or 15 years and immediately before or at the time of such assault did commit an act of indecency on the said JR. 7. Between the 31st day of December 2014 and the 12th day of May 2016, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of or above the age of 14 years and under the age of 16 years, namely, a person of the age of 14 or 15 in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis. 8. Between the 31st day of December 2014 and the 12th day of May 2015, at Castle Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of or above the age of 14 years and under the age of 16 years, namely, a person of the age of 14 or 15 years, in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis. 9. Between the 31st day of December 2014 and 12th day of May 2016, at Bella Vista in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person of or above the age of 14 years and under the age of 16 years, namely, a person of the age of 14 or 15 years, in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis. 10. Between the 31st day of December 2015 and the 5th day of May 2016, in Dulwich Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person above the age of 14 years and under the age of 16 years, namely, a person of the age of 14 or 15 years in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis. 11. Between the 31st day of December 2015 and the 5th day of May 2016, in Dulwich Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person above the age of 14 years and under the age of 16 years, namely, a person of the age of 15 years in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis. 12. Between the 2nd day of May 2016 and the 5th day in May 2016, in Dulwich Hill, in the State of New South Wales, did have sexual intercourse with JR, the said JR being a person above the age of 14 years and under the age of 16 years, namely, a person of the age of 15 years, in circumstances of aggravation, namely, JR was under the authority of Aaron Mendis. 13. Between the 31st day of December 2016 and the 1st day of January 2019, at Kings Langley in the State of New South Wales, did assault MM, and at the time of the assault committed an act of indecency on MM, namely, placed MM's hand over Aaron Mendis' penis, in circumstances of aggravation, namely, at the time of the offence MM was under the authority of Aaron Mendis. 14. Between the 1st day of December 2012 and the 1st day of March 2013, at Coledale, in the State of New South Wales, did assault ES, a person then under the age of 16 years, namely, 13 years and immediately before or at the time of such assault did commit an act of indecency on the said ES. 15. Between the 31st day of December 2013 and the 1st day of April 2014, at Coledale, in the State of New South Wales, did assault ES, a person then under the age of 16 years, namely, 14 years and immediately before or at the time of such assault did commit an act of indecency on the said ES. 1. On 7 August 2023 the parties had filed an election to proceed to trial by Judge alone and an order was made for a trial by Judge alone pursuant to s132 of the Criminal Procedure Act 1986 (NSW). 2. Counts 1 to 12 on the Indictment involved allegations of sexual misconduct including sexual intercourse and indecent assaults against the same complainant, JR. Count 13 involved an allegation of aggravated indecent assault against another complainant, MM. 3. Counts 14 and 15 concerned allegations of indecent assaults upon a third complainant, ES. At the time of the allegations in each count on the Indictment, the accused was a youth leader at a church, and each of the allegations is said to have occurred in activities relating to his church's youth group at sleepovers at various premises, including that of the accused, or on camping trips (Counts 14 and 15). 4. At the commencement of the trial the Court was informed that there was no issue between the parties as to the age of each complainant at the time of each of the alleged offences, nor was there an issue in respect of Counts 1 to 13 that the accused was in a position of authority. 5. The Court was further informed that there would be no dispute between the parties that there was physical contact between each of the three complainants and the accused and the evidence was capable of establishing the act of sexual intercourse or the indecent assault alleged in each count on the Indictment. The Court was informed that the issue between the parties was whether each of the acts was carried out voluntarily by the accused. 6. The Court was further informed that the accused suffered from a psychological condition and had been diagnosed with sexsomnia. The accused relied on a report from Dr A Fernando dated 27 February 2022 to establish that the accused did suffer from that condition. The Crown relied on two reports from Dr J O'Dea dated 29 August 2023 and 7 September 2023. The expert evidence is summarised below, however from the outset of the trial it was made clear that the live issue was whether the accused's actions were attributable to his sexsomnia whilst he was asleep. If so, his actions were not voluntary and this would constitute a complete defence unless the prosecution could, beyond reasonable doubt, negate this defence of automatism. 7. My summary of the evidence in the Crown case, but for the expert evidence, is Annexure A to this judgment.