Man who claimed he had ‘sex insomnia’ when he raped his colleague could not overturn his conviction

A man who claimed he suffered from sexsomnia while raping his colleague has failed in his appeal against his conviction.

The Court of Appeal rejected the prosecution’s argument that, in its closing statement, it had unfairly sought to “highlight” its failure to present evidence at trial and had “belittled” the testimony of a sleep disorder expert.

Announcing the decision on Tuesday, Lady Justice Tara Burns said the three-judge court did not uphold any of the 30-year-old Dublin man’s grounds of appeal.

The man, who cannot be named to protect the anonymity of his victim, pleaded not guilty to a single charge of rape but was convicted by a majority verdict after a hearing in the Central Criminal Court on 9 February 2018.

Her Honor Judge Kerida Naidoo imposed an eight-year prison sentence, suspended for the final two years, with strict conditions, including that the man place himself under the supervision of the Probation Service.

During the trial, the defense argued that the man suffered from a sleep disorder called “sexsomnia” in which people engage in sexual behavior while they sleep.

In her victim impact statement, the woman described the man’s claims that he committed the crime in his sleep as “insulting”.

At the sentencing hearing, it was said that the man and woman worked together during the rape. They were socializing as part of a group on February 8, 2018, and at the end of the night the man invited the group to his flat in Dublin to continue the party.

The woman tried to sleep in the living room, but it was cold and she later went to the man’s bedroom to sleep in his bed. He was fully clothed when he lay down on the bed. The woman then woke up realizing that the man had sexual intercourse with her.

It was accepted that non-consensual sexual intercourse took place, but the plaintiff’s claim is that he was not conscious of it because he was asleep.

The defense is from respiratory medicine consultant Dr. who specializes in sleep disorders. He called John Garvey.

Sexsomnia is often triggered by proximity and indiscriminate interaction with a random person, he said, and the episodes are typically not remembered, leaving patients unaware of their behavior at the relevant time.

The man later appealed against his conviction last July, arguing that the trial judge erred in not discharging the jury following “impermissible, wholly unfair and seriously prejudicial” comments made by the prosecution lawyer in his closing speech to the jury.

Michael Bowman SC, who represented the man at the appeal hearing, said there was a consistent theme in his closing speech aimed at “shining light” on the defendant’s failure to give evidence and cross-examine himself at his trial. .

Giving judgment today, Mrs Justice Burns said the court did not agree that the prosecution counsel’s closing argument amounted to criticism of the appellant.

He said that in his speech the lawyer referred to the appellant’s presumption of innocence; the right to remain silent; the burden of proof and the fact that no inference can be drawn against the man because he did not give evidence.

The judge said the court was of the view that nothing unfair or prejudicial was said to the appellant by prosecution counsel and that the appellant’s presumption of innocence and right to remain silent were not violated.

Mr Bowman also argued that the negative comment in his closing argument was not limited to the appellant’s failure to give evidence. Dr. He presented Garvey’s statement to the prosecution “repeatedly belittling” it.

Lorcan Staines, Dr., for the DPP. He maintained that the comments made regarding Garvey were “legally permissible and appropriate.”

Mrs Justice Burns found that the State’s attorney, after a difficult cross-examination, had submitted to Dr. He stated that he closed with “sharp criticism” of the statements offered by Garvey.

The judge said the appellant did not testify at the hearing as was his right.

Accordingly, Dr. Garvey’s opinion was based on the fact that the man was Dr. He said the information he provided to Garey had no evidentiary basis at trial.

He, the court, the trial judge, Dr. It found that Garvey was not at fault in refusing to allow another doctor to give evidence of his opinion, and his grounds of appeal in that regard also failed.

The other doctor may be called to give his own expert opinion, but for the purpose of expert testimony, his opinions must be submitted to Dr. He said that it was not allowed to be stated and relied upon by Garvey.

Another ground raised on appeal was that the judge had erred in allowing the prosecution to introduce evidence suggesting that one of the appellant’s colleagues had a prior motive or sexual interest in the complainant.

Mr Bowman argued that the decision to allow the evidence prejudiced the appellant’s fair trial.

Mrs Justice Burns said the question for the jury was whether the appellant was asleep, but the question of whether he was interested or interested in the victim was “important”.

He said that if the evidence was accepted by the jury, it would establish that the appellant had a pre-existing interest in the victim.

The court also rejected the grounds for appeal against the pre-trial hearing decision, which allowed the plaintiff and the witness in the case to testify at the hearing via video link from abroad.

Mrs Justice Burns said that this was a decision within the discretion of the Central Criminal Court Judge to whom the application was made and therefore she was not mistaken in her decision.

He said that where the court did not approve any of the reasons put forward, the man’s appeal against the conviction was rejected.

At the man’s sentencing hearing it was said that the woman awoke while the appellant was having sex with her. She said when she asked what he was doing, the man replied, “You wanted me.”

When questioned by gardaí the man said nothing happened and that he only remembered going to bed. DNA tests found semen in the woman’s underwear and tights.

The court heard the appellant made sexual comments to the woman before the night of the attack: “This top leaves nothing to the imagination” and “those lips could give a good blowjob”.