The Supreme Court has dismissed Damin Cook's appeal against his convictions.
Warning: This article contains distressing content.
Damin Peter Cook claims he was asleep when he raped a woman.
He used members of his family, former partners and expert psychiatric evidence to argue his defence — that sexsomnia was the cause of the attack.
The woman had passed out after a night of drinking at a birthday party at a Christchurch flat in September 2019.
Cook and some others put her into bed, but she was later woken by Cook, who was having sex with her.
The woman was afraid and pretended to be asleep. Shortly after, she left the bedroom and told a friend what happened, and the police were alerted.
At trial, Cook claimed a defence of sexsomnia, a type of parasomnia or movement disorder that occurs during sleep, and that he has no memory of the incident.
While Cook cited supporting evidence from family members, former partners, and expert psychiatric evidence, a jury was unconvinced, agreeing he was not asleep when he raped the unconscious woman.
In September 2022, he was sentenced in the Christchurch District Court to eight years in prison on one charge of sexual violation by unlawful sexual connection and one charge of sexual violation by rape.
Cook, who is still serving his sentence, took his case to the Court of Appeal, challenging his convictions and sentence.
While his appeal against conviction was dismissed, his sentence was quashed and replaced with a jail term of seven years after the Court of Appeal found the sentencing judge’s starting point was too high.
Cook then turned to the Supreme Court in another attempt to have his convictions overturned.
But today, the Supreme Court released its unanimous decision to dismiss Cook’s appeal.
The question for the senior court was whether the Court of Appeal was correct to classify the defence advanced as one of insanity.
According to the earlier Court of Appeal decision, the trial judge’s directions to the jury applied the law as held by the Court of Appeal from the earlier, relevant case of Tony Paraire Cameron, from Rotorua.
In that case, the court held Cameron’s sexsomnia was a form of insane automatism.
“As a result, the defendant had the burden of showing that he suffered from a disease of the mind to the extent that he did not understand the nature and quality of his act.”
But the court did not hold that sexsomnia generally is insane automatism and stated the classification depends on the evidence in the particular case.
Cook submitted to the trial judge that the Cameron case was wrongly decided and that he should not follow it.
He wanted the judge to rule that sexsomnia was a form of sane automatism.
“That would mean that, where there is an evidential foundation for the defence, it would be for the Crown to exclude the reasonable possibility that a defendant acted without conscious volition.”
But the trial judge followed the Cameron case, as he was bound to do, the Court of Appeal decision stated.
In the Supreme Court’s decision, it said sane automatism involved an act committed without conscious volition and not caused by a disease of the mind.
Insanity relevantly involved a disease of the mind, making the person incapable of understanding the nature of their act, the ruling stated.
“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.”
In dismissing Cook’s appeal against the Court of Appeal ruling, the Supreme Court ruled insanity was the only defence that could properly be put to the jury in this case.
Al Williams is an Open Justice reporter for the New Zealand Herald, based in Christchurch. He has worked in daily and community titles in New Zealand and overseas for the last 16 years. Most recently he was editor of the HC Post, based in Whangamata. He was previously deputy editor of Cook Islands News.
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