The Supreme Court has dismissed an appeal brought by a rapist who claimed he had sex unknowingly with his victim while he was asleep.
A jury found Damin Peter Cook was not asleep when he raped an unconscious woman in 2019, who he had put in his bed after she passed out from alcohol at his Christchurch flat.
Cook did not deny having sex with the victim, but claimed it happened because of a condition known as sexsomnia, or sleep sex.
He was convicted of sexually violating and raping the woman in 2022 and sentenced to eight years imprisonment. In July last year, Cook appealed his conviction at the Supreme Court.
On Monday, the Supreme Court unanimously dismissed Cook’s appeal.
Its decision centred on whether the trial judge was correct to treat Cook’s defence as insane automatism, rather than the sane automatism defence Cook wanted to put forward.
Typically, the difference was based on whether the cause of the condition was internal or external — insane automatism was the result of a mental illness or a condition such as schizophrenia — while sane automatism was when something else, such as concussion, was responsible.
“Counsel for Mr Cook submitted that sexsomnia, like other parasomnias, was properly classified as a form of sane automatism. It plainly involved a lack of conscious volition,” the Supreme Court said.
“The trial judge classified the defence advanced as one of insane automatism — that is, based on a ‘disease of the mind’… that provision placed a reverse onus on Mr Cook to prove, on the balance of probabilities, that he was suffering from a disease of the mind at the time of the alleged offending.
“The judge rejected an argument that Mr Cook’s defence was to be categorised instead as sane automatism. The jury did not accept the insanity defence.”
In 2023, the Court of Appeal upheld the classification decision of the judge and dismissed Cook’s appeal against conviction, but reduced his sentence to seven years’ imprisonment.
The Supreme Court found the Court of Appeal was correct to classify Cook’s defence as one of insanity.
“The defence of sane automatism is available only where the absence of conscious volition arises from some event or condition not properly classified as a disease of the mind.
“Where, however, automatism proceeds from a disease of the mind, the effect… is that the defence must be classified as one of insanity. Insanity was therefore the only defence that could properly be put to the jury in this case,” the court said.
rnz.co.nz
