Man who claimed he was suffering sexsomnia when he raped co-worker has conviction appeal rejected
Delivering judgement on Tuesday, Ms Justice Tara Burns said the three-judge court was not upholding any of the 30-year-old Dublin man’s grounds of appeal
A man who claimed he was suffering from sexsomnia when he raped a co-worker has failed in an appeal against his conviction.
The Court of Appeal rejected his contention that the prosecution unfairly sought to “spotlight” his failure to give evidence at trial in their closing address and had “poured scorn” on the testimony of a sleep disorder expert.
Delivering judgement on Tuesday, Ms Justice Tara Burns said the three-judge court was not upholding any of the 30-year-old Dublin man’s grounds of appeal.
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The man, who cannot be named to protect the anonymity of his victim, had pleaded not guilty to a single count of rape but was convicted on February 9, 2018 by a majority verdict following a Central Criminal Court trial.
Mr Justice Kerida Naidoo imposed a sentence of eight years and suspended the final two years on strict conditions, including that the man places himself under the supervision of the Probation Service.
During the trial, the defence submitted that the man suffered from a sleep disorder called “sexsomnia” where people engage in sexual behaviour while asleep.
In her victim impact statement, the woman described the man’s claims that he carried out the offence in his sleep as “belittling”.
A sentencing hearing was told the man and woman had been working together at the time of the rape. They had been socialising as part of a group on February 8, 2018 and at the end of the night, the man invited the group back to his Dublin apartment to continue the party.
The woman tried to go to sleep in the living room but it was cold and she later went into the man’s bedroom to sleep on the bed. She was fully clothed when she lay down. The woman later woke up to the man having sex with her.
The fact that non-consensual sexual intercourse took place was accepted, however the appellant’s case was that he was not conscious of this by virtue of being asleep.
The defence called Dr John Garvey, consultant in respiratory medicine who specialised in sleep disorders.
He said sexsomnia is usually triggered by proximity and indiscriminate interaction with a randomly present person and episodes are typically not remembered, with patients remaining unaware of their behaviour at the relevant time.
The man subsequently launched an appeal against his conviction last July, submitting that the trial judge erred in failing to discharge the jury following “impermissible, wholly unfair and seriously prejudicial” comments made by prosecution counsel in their closing address to the jury.
At the appeal hearing Michael Bowman SC, representing the man, said there had also been a consistent theme running through the closing speech which sought to “shine a spotlight” on the accused’s failure to give evidence in his trial and subject himself to cross-examination.
In delivering judgement, Ms Justice Burns said the court did not agree that the prosecution counsel’s closing address amounted to a criticism of the appellant.
She said in his speech, counsel had referred to the appellant’s presumption of innocence; his right to silence; the burden of proof and the fact that no adverse inference could be drawn against the man because he had not given evidence.
The judge said the court was of the opinion that nothing unfair or prejudicial to the appellant was said by counsel for the prosecution and that the appellant’s presumption of innocence and right to silence had not been breached.
Mr Bowman also argued the adverse commentary in the closing speech was not confined to the appellant’s failure to give evidence. He submitted the prosecution “repeatedly poured scorn” on Dr Garvey’s testimony.
Lorcan Staines, for the DPP, contended that the comments made in relation to Dr Garvey were “legally permissible and appropriate”.
Ms Justice Burns noted that counsel for the State closed with “scathing criticism” of the evidence given by the Dr Garvey, following a demanding cross-examination.
The judge said that as was his right, the appellant did not give evidence in the trial.
She said accordingly, the information provided by the man to Dr Garey, which was relied upon by Dr Garvey in forming his opinion, had no evidential basis in the trial.
She went on to say that the court found the trial judge did not err in his refusal to permit Dr Garvey give evidence of another doctor’s opinion and said the grounds of appeal in that regards also failed.
She said the other doctor could have been called to give their own expert opinion but having their opinion expressed and relied upon by Dr Garvey for the purpose of expert testimony was not permitted.
Another ground advanced at the appeal was that the judge erred in permitting the prosecution to adduce evidence of one of the appellant’s co-workers to suggest that the man had a prior motive or sexual interest in the complainant.
Mr Bowman suggested the ruling to permit the evidence was prejudicial to the appellant’s fair trial.
Ms Justice Burns said that while the question for the jury was whether the appellant was asleep or not, the issue of him having an interest or attraction to the victim was “of significance”.
She said if the evidence was accepted by the jury, it established a prior interest by the appellant in the victim.
The court also rejected a ground of appeal relating to a pre-trial hearing ruling permitting the complainant and a witness in the case to give their evidence at trial by video-link from abroad.
Ms Justice Burns said this was a decision which fell within the discretion of the Central Criminal Court Judge before whom the application was made and so he had not erred in his decision.
She said in circumstances where the court had not upheld any of the grounds advanced, the man’s appeal against conviction was dismissed.
The man’s sentencing hearing was told that the woman woke up to the appellant having sex with her. When she asked what he was doing, she said the man replied: “You wanted me.”
When questioned by gardaí, the man said nothing had happened and that he could only recall going to bed. DNA tests found his semen on the woman’s underwear and tights.
The court heard the appellant had made sexual comments to the woman before the night of the assault including: “That top leaves nothing to the imagination” and “those lips could give a good blowjob”.
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