WARNING: This story discusses rape and may be distressing for some readers.

A man who continues to claim sexsomnia made him rape a woman who was passed out after a night of drinking and partying has been given the green light to have his case heard by the Supreme Court.

Damin Peter Cook is currently behind bars after a Christchurch jury rejected he was asleep or unconscious at the time of the 2019 offending.

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.

Both convictions relate to the sexual assault of a woman three years prior. Cook had been partying with the victim one evening in September 2019 at a house in Christchurch. She had passed out in a bedroom and around 7am, she was 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.

Last year, Cook 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 appeal court found the sentencing judge’s starting point was too high.

Cook has now turned to the Supreme Court to have another go at having his convictions overturned.

Yesterday, the Supreme Court - the court of last resort - released a judgment granting his application for leave to appeal the Court of Appeal’s ruling.

The judgment stated the Supreme Court would consider whether the Court of Appeal was correct to treat Cook’s defence as insane automatism.

The case will now be heard by the Supreme Court. Photo / Mark Mitchell.

According to the 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 is 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.

The court was ordinarily bound by its earlier decisions and would only depart from them in rare cases where there was cogent reason to do so.

At the appeal, Cook’s counsel repeated submissions that the Cameron case was wrongly decided and that Cook’s convictions should be quashed accordingly.

But the Court of Appeal said it had no reason to depart from the Cameron case and dismissed the appeal against conviction.

“The issue of whether sexsomnia can be a form of sane automatism or insanity was central to the Court’s decision,” the decision stated.

“The Court conducted a review of the common law history of the defences of sane automatism and insanity. The Court’s analysis was orthodox and did not result in a radical or striking change to the law.”

A date is yet to be set for Cook’s appeal before the Supreme Court.

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 support@safetotalk.nz
• 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.