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 sex attack.

The woman had passed out after a night of drinking at a birthday party held at a Christchurch flat in September 2019.

He and some others put her in his bed, and she was later woken by Cook, who was having sex with her.

The woman was afraid and pretended to be asleep but, shortly after, she left the bedroom and told a friend what happened, and the police were alerted.

At trial, he 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 didn’t buy it, 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 went on to take 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 appeal court found the sentencing judge’s starting point was too high.

Cook then turned to the Supreme Court to have another go at having 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.

Cook argued that sexsomnia, like other parasomnias, was properly classified as a form of sane automatism, a legal term that refers to a state where a person’s actions are involuntary or unintentional due to a transient, non-recurrent mental malfunction, but not due to a disease of the mind.

His defence said it plainly involved a lack of conscious volition.

The Crown argued sexsomnia was properly classified as a disease of the mind, a legal concept which refers to various mental conditions.

The Supreme Court 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.

“Insanity was therefore the only defence that could properly be put to the jury in this case.”

SEXUAL HARM

Where to get help:
If it's an emergency and you feel that you or someone else is at risk, call 111.
If you've ever experienced sexual assault or abuse and need to talk to someone, contact Safe to Talk confidentially, any time 24/7:
• Call 0800 044 334
• Text 4334
• Email [email protected]
• For more info or to web chat visit safetotalk.nz
Alternatively contact your local police station - click here for a list.
If you have been sexually assaulted, remember it's not your fault.

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.