A 21-year-old Coffs Harbour man was recently found not guilty of
breaking into a nearby home while naked and assaulting a woman in
her bedroom – because he was deemed to be sleepwalking.
The defence successfully argued that he was suffering from a
state of "automatism, namely somnambulism" –
sleepwalking in plain language.
The defence argued that the accused therefore did not have the
"requisite mens rea" to commit the offence. The
legal term "mens rea" means a person has to have
the awareness or knowledge that they are committing wrong in order
to be convicted of a crime.
Accused claims to have no knowledge of his actions
In this NSW case, R v Jacob Bradley Holland  NSWDC 47, police
officers said the man slurred his words, appeared drunk and smelt
of alcohol. He said he had drunk six cans of beer and gone to bed.
He claimed the next thing he knew he was being held down in a
The judge said there was no dispute that the accused had entered
the house illegally and assaulted the woman in her bedroom. The
woman's partner subdued the accused until police arrived.
Police said at the time of his arrest he was mumbling and yelling
The accused told police that in retrospect he thought he was in
a dream where he was acting out a character from the roleplaying
computer game "Skyrim".
History of bizarre behaviour while sleepwalking
The defence medical expert said the accused had been a
sleepwalker from an early age and his symptoms in the case were
consistent with sleepwalking. His violent acts were said to be
caused by "sleep drunkenness", a condition whereby
behaviour during sleepwalking can be aggressive.
The defence said he was diagnosed with ADHD when he was four and
it was then he started sleepwalking. He had been on Ritalin for
many years and was diagnosed with Asperger's syndrome when he
was fourteen. His brother told the court the accused had long done
"weird and crazy" things when he was asleep, including
once waking their mother to say: "I was inside a sandwich bag
in the wardrobe".
Aspects of behaviour inconsistent with somnambulism
The Crown's medical expert said that the accused managed to
enter the home silently and at one stage turned his head to make
eye contact with the victim before the assault. This, the expert
said, indicated that the accused's conduct was goal directed,
not that of a sleepwalker.
The Crown's expert told the court that the accused had
managed to travel a complicated path undetected to the woman's
bedroom door, which was inconsistent with automatism.
Prosecution fails to prove that accused was not
The case was heard by a judge alone who found there was no
motive. The accused had never seen the woman before, or been in the
The judge found that the prosecution had not satisfied him
beyond reasonable doubt that the accused was not sleepwalking at
the time. Therefore his conduct was not voluntary.
"Unless the Crown proves beyond reasonable doubt that the
act of the accused was subject to the control and direction of his
will, then he must be acquitted because no offence has been
committed," Judge Phillip Mahoney said in his judgment.
An important legal factor for the judge was the 1990 High Court
decision in R v Falconer  HCA 49 concerning the proper
construction of sections 23 and 27 of the Criminal Code (WA), which refer to a defence of
automatism for criminal acts.
Sleepwalking law has history of violent acts
This is not the first time a person has been found not guilty of
a crime due to sleepwalking.
In 1950 a Melbourne mother axed her daughter to death believing
she was fighting off enemy soldiers. She was acquitted as she was
found to be sleepwalking.
In 1987 in Canada, Kenneth Parks drove 23 kilometres to his
mother-in-law's house, stabbed her to death and strangled his
father-in-law almost to death. He got back in his car, drove to a
police station and told them he'd found blood on his hands and
feared he'd just killed someone, insisting he had no memory of
He was charged with murder. (See R. v Parks,  2 S.C.R. 871.) He had good
relations with his in-laws, but his whole family had a history of
sleepwalking. Experts said he had been sleepwalking during the
murder, and he was acquitted.
But don't think sleepwalking is a ready defence. In all of
these cases there was a long history of sleepwalking. Plenty of
sleepwalking claims have been thrown out of court, and the question
of "mens rea" remains a vexed area of law.
The recent sight of a politician trying to make a citizen's arrest during a television interview raises legal questions.
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