A man who claimed he raped a woman in his sleep has today appealed his conviction at the Supreme Court.
A jury earlier found Damin Peter Cook was not asleep when he raped an unconscious woman. He and some others put her in his bed after she passed out from alcohol at his Christchurch flat.
Cook did not deny the rape, but claimed it happened because of a sleep disorder known as sexsomnia, also known as sleep sex.
A hearing today centred on whether the judge was correct to treat his defence as insane automatism, rather than the sane automatism defence he wanted to put forward. Typically the difference is based on whether the cause of the condition is internal or external - insane automatism is the result of a mental illness or things like schizophrenia or a brain injury, while sane automatism is when something else, such as concussion, is responsible.
Both types of defence would argue Cook was not aware of his actions and could not be held criminally responsible, but sane automatism would require more onus of proof to be placed on the Crown.
Cook's lawyer, Rodney Harrison KC, said his client was not suffering from a "disease of the mind", and a miscarriage of justice may have occurred.
"He's presumed to be sane rather than labouring under disease of the mind, unless and until the prosecution seeking to rebut that defence proves through, or at least including, expert evidence that his condition amounted to a disease of the mind.
"The presumption of insanity, surely it does mean that he who asserts, he or she who asserts, must prove [the disease of the mind assertion]."
Harrison argued the judge relied too heavily on case law, including the case of Rotorua man Tony Cameron, when deciding the position of insane automatism.
"I'm inviting this court to go back to basics, apply tools of statutory interpretation, apply a Bill of Rights analysis, apply a purposive analysis and come up with a different result."
However, Crown lawyer Zoe Hamill said the judge decided on the insane automatism defence because of the evidence put before the court.
"The judge identified that there was risk of recurrence and that factually this was very similar evidence to Mr Cameron. That's not the same as just simply saying Cameron says that sexsomnia is sane or insane automatism so I have to follow it. There was regard to the evidence."
She said it was up to the courts to classify the type of automatism.
"The rationale again for that is that it takes account not simply of the cause of the condition but it also takes account of the other issues, such as does this person need oversight if the cause is that something happened because of your internal makeup and you could do it again."
The justices' decision would be published at a later date.
