Life is a risky undertaking that involves an endless series of perilous decisions. Some turn out triumphant, others disastrous.

Last month I completed a High Court appeal for a client charged with raping a young woman in Brisbane several years ago. The appellant was a handsome, intelligent and well educated man in his late 20s, with no prior convictions. On the night in question he and a couple of mates attended a city night spot, where they met and socialised for several hours with two attractive young single women. When the bar they were drinking in finally closed in the early hours of the morning, one of the girls decided to invite my client home with them. He was a complete stranger, but she was willing to take the risk. He had an interstate flight to catch the next day, so he was of two minds. But since fortune favours the brave, he decided to throw caution to the wind, and accepted the invitation.

When the three revellers got home to the girls’ flat, the one who had invited him back decided to extend the invitation to include her bed. She was obviously intoxicated, so once again he was of two minds. But being young and bullet-proof, he decided to press on.

When he joined her in the bedroom, it became apparent she was so drunk she was in no shape to shuffle, so he decided to bunk down on the lounge-room couch, to sleep off what was left of the night. But then he got to thinking about the other attractive young lady in the adjoining bedroom. He knew it would be less than chivalrous of him to redirect his attentions to the flatmate, but once again he decided to take a chance.

When he entered the second bedroom he found the occupant sitting up in her bed, dozing lightly. He sat beside her and began romancing her, whereupon she appeared to respond positively to his advances, kissing and cuddling him. They then began to have sexual intercourse together. But when the couple was several minutes into the act the girl appeared to have a sudden, startled reaction, as though she had just awoken from a deep sleep. She pushed him away, telling him to stop what he was doing and get out. Shocked, he did as he was told and left the room immediately.

He would later tell police he thought she had awoke when he first sat on the bed and began kissing her. She told investigators she was still fast asleep right up until the moment she awoke in the middle of the sex act.

The facts raised consideration of a concept known as “sexsomnia”, thought by some to be a form of parasomnia which allows sufferers to have sex in their sleep. More common examples of parasomnia include sleepwalking and sleeptalking. The part of the brain that controls such movements is gradually switched off during sleep as people get older, so most children grow out of sleepwalking or night terrors before they reach their teenage years. But not all do, and adult parasomniacs suffer inappropriate arousals during sleep which cause them to walk, talk, eat and even, according to some researchers, have sex in their sleep.

In 2014, the Sundsvall Appeals Court in Sweden overturned the rape conviction of a man it found could have been asleep when he tried to have sex with a woman sleeping in a bed beside him. After she called in the police, they found the man still asleep in her bed when they arrived. He claimed no memory of the incident, and the court found sexsomnia was a possible explanation.

In my client’s case it wasn’t the defendant who claimed  to be asleep, it was the complainant. His defence was he honestly thought she was awake and consenting when he had sex with her. She said she was asleep, and was therefore incapable of giving her consent. He countered that even if she was asleep she was behaving so much like she was awake it was reasonable for him to believe she was.

Under our law, if he honestly and reasonably believed she was awake and consenting he was entitled to be treated as if she was, even if she wasn’t. The question was, could she possibly have been behaving the way he said she was, if she was in fact asleep.

The final decision was up to the jury. But, as it turned out, they couldn’t decide one way or the other. After several days deliberating, the jurors remained completely dead-locked. So they were discharged, and a second trial was ordered.

Months later a second jury was empanelled, and a new trial got underway. When the second trial ended the jury again retired to consider its decision. Three days later the jurors filed back into court, this time with a guilty verdict.

Chris Nyst, Gold Coast Lawyer, Novelist and Film Maker