Jury acquits sex-sleep man in an hour
Paul Toohey | May 10, 2008
A NORTHERN Territory man has been found not guilty of gross indecency and sexual intercourse without consent after a jury accepted his defence that he suffered "sexsomnia" and may have been capable of having sex in his sleep.
The jury heard that Leonard Andrew Spencer, 48, of Nhulunbuy, in northeast Arnhem Land, suffered from somnambulistic episodes, had a history of sleepwalking and had on a previous occasion tried to have sex while asleep.
Judge Steve Southwood thanked the jury, which took an hour to reach its verdict, for suffering through long legal argument in what he believed was the first case of its type in Australia.
Mr Spencer's lawyer, Jon Tippett QC, said no Australian had ever successfully used "sex-sleep," as the condition is commonly known, as a defence. He was reluctant to claim the sex-sleep defence as a legal first, believing the jury may have relied on other matters as well to reach its verdict. A woman who was house-sitting in Mr Spencer's house said that on the morning of June 2 last year she had risen early and taken her boyfriend to work. She claimed she returned home and went back to sleep but awoke at about 7.20am to find a man, whom she initially thought was her boyfriend, having sex with her. She fled the house and Mr Spencer was arrested. While he accepted he had mistakenly gone to the woman's bedroom, he claimed no recollection of having sex.
A psychiatrist, Lester Walton, gave evidence that memory loss was "a hallmark of somnambulist behaviour" and believed it was possible that Mr Spencer suffered from sexsomnia.
Dr Walton based this on the fact that Mr Spencer's estranged wife, from whom he had recently separated, had testified that when they were together he would sleepwalk on a monthly basis.
Dr Walton said Mr Spencer was depressed and on medication, which may have triggered his somnambulist events.
Mr Tippett also concentrated on the fact that vaginal swabs taken from the complainant revealed no trace of Mr Spencer's DNA; and that police – in what Mr Tippett called "an evidentiary train-wreck" – had failed to swab clothing and bedsheets that might have either helped or hindered his client's case. He argued the case that his client had sex with the complainant at all had not been made out.
Mr Spencer cried in the dock and said he wanted his personal items returned. He also asked the judge if he could go. Permission was granted.