Jury says accused failed to prove his automatic, unconscious state during sexual violation
The Supreme Court dismissed an appeal challenging a judgment that s. 23 of the Crimes Act 1961 applied to a sexual violation case because sexsomnia was a defence of insane automatism, based on a disease of the mind.
In Cook v R, [2024] NZSC 44, the complainant attended a party in the appellant’s flat. The appellant and three others placed her on his bed after she became drunk and passed out. After some more partying, he eventually joined her in bed and fell asleep.
She filed a complaint against him the next day for a sexual violation, which allegedly occurred that morning as she woke up. She described being in shock and waiting for the sexual contact to end, which it did when he appeared to fall asleep. He initially denied having sex with her but later accepted that there was sexual contact, as shown by DNA results.
At trial, his defence was sexsomnia, a parasomnic sleep disorder characterised by displays of sexual behaviour while sleeping. He claimed he committed the alleged violation without conscious volition but in circumstances not constituting insanity under s. 23. He asked the court to classify his sexsomnia as sane automatism, a common law defence.
Under sane automatism, the accused has an evidential rather than persuasive burden to establish a reasonable doubt, while the Crown fully retains the burden of proof of volition and intent.
The trial judge rejected the appellant’s argument on sane automatism. The judge determined that the appellant’s sexsomnia defence was based on a disease of the mind and classified as a defence of insane automatism.
Thus, the judge found s. 23 applicable, which meant the appellant had to prove on a balance of probabilities that he was in an automatic and unconscious state during the sexual violation and was unable to understand the nature and quality of his actions during that episode.
The jury said the appellant failed to do so on the balance of probabilities. The jury deemed the appellant guilty of sexual violation by unlawful sexual connection and sexual violation by rape. The Court of Appeal denied the appellant’s conviction appeal.
The Supreme Court of New Zealand dismissed the appeal. The court ruled that the trial judge correctly reached its conclusion on the material available at the beginning of the trial and correctly classified the sexsomnia defence as engaging s. 23 of the Crimes Act. As a result, the appellant had an onus under s. 23(1), the court said.
The appellant’s counsel asked the court to narrowly interpret “disease of the mind” by limiting it to cases of serious mental illness. Counsel alleged that a narrow interpretation of “disease of the mind”:
The court refused to adopt the narrow interpretation suggested. The court noted that the Criminal Lunatics Act and the rules of M’Naghten’s Case [1843] EngR 875; (1843) 10 Cl & F 200 both seek to protect the public through continued detention.
The court saw no compelling reason to find that Parliament or the judges who delivered the M’Naghten’s rules intended the sexsomnia defence to apply only to willed acts or intended to draw a clear boundary excluding unconscious actors from the defence altogether.
The court determined that adopting a narrow interpretation of “disease of the mind” would prevent deserving defendants – particularly those whose conditions short of “mental disorder” under the Mental Health (Compulsory Assessment and Treatment) Act led to their alleged acts – from accessing an insanity defence.
The court then found that s. 6 of the Bill of Rights did not require a narrower reading of “disease of the mind” in the context of the section’s purpose and context.
Next, the court held that the combination of the s. 23(1) reverse onus and the broad meaning afforded to “disease of the mind” imposed a demonstrably justified limit on the presumption of innocence under s. 25(c) in a free and democratic society, even in unusual cases such as sexsomnia.
The court said striking a balance between sane and insane automatism would not be inconsistent with the right to present a defence under s. 25(e) of the Bill of Rights. On the other hand, the court found that an interpretation of s 23(2) of the Crimes that would require proof of a serious mental illness would go against that right.
The court noted that the law would necessarily limit the scope of availability of any defence. The court stressed that in this case the only defence the jury could consider was an insanity defence.
