Sexsomnia case: NZ man's appeal against rape and indecent assault convictions fails

The Court of Appeal in Wellington.

A man found guilty of raping his wife while she slept has lost an appeal against his convictions.

The man, who has name suppression, was sentenced to five years in prison in the Auckland District Court in 2015 on one count of rape and two counts of indecent assault.

He claimed at the time that he had the sleep disorder sexsomnia, in which a person performs sex acts while in a sleepwalking-like state.

A sleep expert at the trial, Dr Antonio Fernando, had said that sexsomnia generally did not involve any communication. The man's wife had said he had spoken during the sexual assaults, including asking her "Are you awake?" on one occasion.

The Court of Appeal declined an appeal by the man in 2016, and in 2017 his application for an extension of time to appeal to the Supreme Court was also declined.

After the convicted rapist was released from prison, Dr Fernando took him on as a patient.

The doctor found that the man was a "sleep talker", which meant that some form of simple communication could occur during or at the end of a sexsomnia episode.

As a result, the man filed an application for a second appeal to the Court of Appeal against his conviction, which was based on what he believed was new evidence.

In a ruling released today, the court declined the appeal, saying it did not think the proposed evidence would be likely to "provide substantial help for the fact finder" if a second trial went ahead.

"We do not consider that the foundation proposition that [the man] may speak in his sleep is something which was not known and could not have been pursued in cross-examination of [the man] at the trial."

It also noted the finding from the first trial that the man had lied to his wife about one of the incidents. He had initially said he was suffering from sexsomnia before later admitting that he was not.

The court said the appropriate courses of action for the man could be to file a further application to the Supreme Court or make an application for a prerogative of mercy under the Crimes Act.

The rape occurred between March 2007, when the pair married, and December 2008, when the complainant woke to find her husband having aggressive and non-consensual sex with her, despite her pleas for him to stop.

The first count of indecent assault occurred in bed between November 2011 and August 2012, when the man moved his wife's hand towards his genitals.

The second count of indecent assault occurred in bed between March 2007 and August 2012, when the man rubbed his erect penis against his wife's bottom.