GRAND FALLS-WINDSOR, N.L. — A judge has ordered a new trial for a man convicted of sexually touching his younger sister on the grounds that he may have sexsomnia, a condition involving sexual activity during sleep.
Judge Kendra Goulding of the Newfoundland and Labrador Supreme Court quashed his conviction and said a new trial should be conducted for the young man, whose identity is protected under a publication ban.
She says in a 16-page decision that new evidence about his alleged mental disorder raising the possibility he was asleep during the offence warranted a new hearing in provincial court.
"I find that the interests of justice require that the fresh evidence be received on appeal," she wrote. "It could reasonably have affected the verdict at trial when taken with the rest of the evidence."
That evidence includes a report by Dr. Jasbir Gill, a forensic psychiatrist who examined the man after he was convicted and concluded he likely suffered from sexsomnia. The condition involves varying degrees of sexual activity, including masturbation, fondling and sexual intercourse, that arise during sleep and "occur without conscious awareness," according to Gill's report.
Gill testified that the man met the criteria for a diagnosis of the sleep arousal disorder and was suffering from the condition at the time of the alleged sexual offence. The specialist also testified that the man's girlfriend had witnessed him perform sexual acts while he was apparently asleep.
"There is evidence to show that he has exhibited the same sexual behaviours towards an adult peer-aged woman," Gill's report states.
In an affidavit, the man's girlfriend described numerous occasions when he engaged in sexual acts while appearing to be asleep. But Goulding stated that evidence would not have been available at his trial, since they had just started dating.
The man was convicted of sexual interference in December 2013. He had been accused of putting his hands down the pants of the young girl in 2011 after he asked her to camp outside on makeshift beds. She testified that he had not said anything during the incident and that she couldn't tell if he was asleep.
The provincial court judge convicted him, finding the complainant's evidence "credible," and that there was no defence evidence to support the claim that he was asleep at the time.
The man served five months in prison, along with a period of supervised probation.
Goulding also raised the defence lawyer's handling of the unusual case, saying the question of whether he was asleep during the alleged offence was not pursued with a psychiatrist because the lawyer felt there was a lack of evidence. The judge added that the man had told his lawyer he informed police he believed he was asleep at the time.
Goulding said the defence lawyer suggested during the trial it was possible he was asleep.
"(The man) made his defence known to counsel well in advance of trial," Goulding wrote. "the strategy adopted by trial counsel...indicates a misapprehension of the law and not reasonable professional judgment."
