Sleepwalking Assailant Found Not Guilty

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By Paul Gregoire and Ugur Nedim

Jacob Holland entered the house of a neighbour in Coffs Harbour on November 9 2014. The 21-year-old man had never been to the residence before, nor did he know the family who lived there. He made his way in through a backdoor that had a faulty lock, and was completely naked at the time.

Mr Holland went into the laundry and put on a young girl’s blue cardigan. He proceeded to crawl on all fours around the house, until he was confronted in the hallway by Brenda Foran who lived at the residence.

By this stage, Holland was standing and Ms Foran came up behind him. Holland turned and looked her in the eyes and then punched her in the head and face six or seven times.

Ms Foran’s husband then turned up and restrained the attacker.

Too much Xbox

According to Mr Holland, the first thing he remembered was waking up with someone’s knee in his back. He thought he’d been “in the world of Skyrim,” a mystical computer game that he had spent up to 40 hours a week playing at the time.

Finding himself restrained in an unknown house with police on the scene, Holland thought he was still dreaming. It wasn’t until he was at the local police station that he realised he was in the real world, alone and naked, locked inside a holding cell.

NSW District Court trial

Mr Holland appeared in the NSW District Court on March 2 this year, charged with breaking, entering and committing a serious indictable offence under section 112(2) of the NSW Crimes Act 1900, which provides:

“112(1) A person who:

(a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or

(b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence…

(2) Aggravated offence. A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation.”

A ‘serious indictable offence’ is one which carries a maximum penalty of at least five years’ imprisonment.

In this case, it was alleged Holland committed the offence of assault occasioning actual bodily harm against Ms Foran, which comes with a maximum prison term of five years.

Section 105A of the Act lists the relevant ‘circumstances of aggravation’, which are:

  • Being armed with an offensive weapon or instrument
  • Being with another person or persons
  • Using corporal violence
  • Intentionally or recklessly inflicting actual bodily harm
  • Depriving another person or persons of their liberty
  • Knowing there is a person or persons present

In this case, the circumstance of aggravation was the use of corporal violence against Ms Foran.

The maximum penalty under section 112(2) is 20 years imprisonment.

The trial was presided over by a judge-alone, which means a jury was not present. The question for the judge was essentially whether Mr Holland was aware of what he was doing at the time of the alleged offence.

Automatism

Automatism is a unique defence that is rarely argued in the NSW courts. It refers to situations where a person unintentionally or involuntarily commits an act due to circumstances that are out of their control.

Examples of automatism include where a person is sleepwalking or suffering an epileptic fit, or is rendered temporarily insane due to trauma. In these situations, it can be found that the person was not criminally responsible for their actions.

If the defence raises automatism and there is some evidence to support it, then the prosecution must prove beyond a reasonable doubt that the act was undertaken voluntarily and consciously.

Evidence of sleepwalking

During the trial, Mr Holland’s defence lawyers raised evidence of “somnambulism”; more commonly known sleepwalking.

This came partly in the form of an affidavit from the accused’s brother, Allan Holland, who swore to being with Jacob during the day of the incident. At around 7 or 8pm that evening, the pair, along with a friend of Allan’s, shared a six pack of Carlton dry beers.

At around 10pm, Allan and his friend went out to the Plantation Hotel, leaving Jacob sitting on the couch playing computer games. About an hour later, Allan received a call from police and then headed straight for the station.

Allan found Jacob in a holding cell, naked, hysterical and talking about how the police had told him he’d killed a young girl. Allan also noticed that his brother was covered in cuts and bruises.

“Jacob does these weird sleep things. He goes into a weird state and does crazy things and doesn’t remember,” Allan swore in his affidavit. “Once he woke mum up and was insisting that I was inside a sandwich bag in the wardrobe.”

Police at the scene

Leading Senior Constable Zecchinati and Senior Constable Benjamin Cruickshank arrived shortly after the incident. Both stated that Holland appeared intoxicated by alcohol and perhaps drugs as well.

Constable Cruickshank stated that he smelt alcohol on Holland’s, and that his speech was “completely rambled and mumbled.”

The court also heard evidence that sleep drunkenness is a condition that can follow sleepwalking. Sufferers can display marked disorientation, not know where they are and what’s going on, weakness in getting to their feet, unbalanced walking, slurred speech and mumbling.

When put to the officers that Mr Holland’s symptoms were consistent with sleep drunkenness, both agreed. However, officer Cruickshank added that, in his opinion, this wasn’t the reason the accused acted as he did that night.

The medical evidence

Two medical experts were involved at the trial. Both interviewed Mr Holland and reviewed his past medical records. Professor D M Greenberg was called for the prosecution and Dr Jonathon Adams for the defence.

Their evidence was that Mr Holland had a history of sleepwalking and night terrors from an early age. He was diagnosed with ADHD at the age of four, and had taken the medication Ritalin for many years. That condition was coupled with ODD, and had led to learning difficulties, as well as anxiety and anger management issues.

However, professor Greenberg concluded that Holland’s actions were “goal directed complex behaviours” which were inconsistent with sleepwalking. He noted that the accused was able to make his way around a house he’d never been to before, and made eye contact with the Ms Foran just before the attack.

Dr Adams disagreed, giving evidence that sleepwalking “involves a much broader range of activity and that as psychiatrists, Professor Greenberg and himself, could not be definitive about the accused’s behaviour.”

The verdict

NSW District Court judge Phillip Mahony delivered his verdict on March 17, finding the accused not guilty.

His Honour came to the view that the prosecution had failed to discharge its onus of proving that Mr Holland had acted voluntarily and consciously. In reaching his finding, the judge noted that the accused went to bed naked that night and arrived at the residence in the same state.

The judge found no evidence that Holland had been under the influence of illicit drugs on the night, noting that a drug test undertaken 82 hours after the incident showed no trace of an illicit substance. The judge further noted the expert evidence that Holland’s alcohol consumption could have triggered a sleepwalking incident.

His Honour remarked that Mr Holland’s disoriented state after the incident was consistent with an episode of sleepwalking, as was his belief that he had caused harm to a young child.

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