Sleeping Killers: What Does the Law Say?

The criminal law is called upon to deal with all kinds of bizarre and unlikely scenarios, including situations where people kill while asleep.

Although it may sound like a horror movie plot, homicidal sleepwalkers have been well-documented for centuries – with some having more luck than others when it comes to escaping murder and manslaughter charges.

In 1943, 16-year-old American Jo Ann Kiger shot her father and six-year-old brother while dreaming they were under attack. She regularly had these nightmares, and on the fatal night thought that an intruder was attacking her family. She was found not guilty.

But Polish refugee Wasyl Gnypiuk was not so lucky. He was found guilty of murdering his landlady in 1960 after breaking into her home while she slept. At trial, Gnypiuk claimed that he had been sleepwalking at the time, and that he had suffered nightmares as a result of his time in Nazi concentration camps during World War II. In his dream, he was fighting Nazis but awoke to find his landlady dead at his feet.

Gnypiuk was the last person to be executed in Lincoln, England before the death penalty was abolished in 1965.

The law in Australia

In Australia, a person cannot be guilty of an offence if they were unconscious or asleep at the time that the act was committed. Courts throughout Australia have confirmed this time and again – finding that a defendant’s actions must be voluntary for a finding of guilt. If a person is asleep and therefore not conscious, they cannot have acted voluntarily.

The Cogdon Case (1950, Victoria)

This Victorian case concerned Mrs Cogdon and her 19-year-old daughter Pat. All of the evidence pointed to the fact that Mrs Cogdon loved her daughter, who was her only child. In the words of her husband: “I don’t think a mother could have thought any more of her daughter. I think she absolutely adored her.”

Despite this, Mrs Cogdon was charged with murder after she went into Pat’s room one night and struck her on the head with an axe, causing her death. Despite her actions, Mrs Cogdon entered a plea of not guilty.

According to Mrs Cogdon’s account, she had been asleep the whole time, and had in fact believed that soldiers had invaded her house, and that one of them was on the bed attacking her daughter.

While this might sound crazy, Mrs Cogdon testified that she was prone to sleepwalking and having vivid dreams, including in the nights leading up to the tragedy of her daughter’s death. In court, Mrs Cogdon’s physician, psychiatrist and psychologist all supported her story.

At trial, the jury found Mrs Cogdon not guilty, and she was acquitted.

The case of Mr Silich (2010, Western Australia)

Vernon Robert Silich enjoyed a loving relationship with his parents – until he killed them while on a dinner visit. After dinner, during which a considerable amount of alcohol was consumed, Mr Silich entered his parents’ bedroom, where he kicked his mother and father with his steel-capped boots causing unconsciousness and, ultimately, death.

When he came to his senses, Mr Silich was horrified by the sight of his parents’ dead bodies. He had no memory of the incident, and telephoned a friend. The friend notified police and Silich was arrested and charged with murder.

Mr Silich argued that he had been asleep during the attack and was therefore not acting voluntarily. His alternative explanation was that, if not asleep, he was too intoxicated to have formed the specific intent to murder his parents. But neither defence washed with the jury, and he was found guilty of both murders.

In Silich’s case, there was little to support his claims of sleepwalking but, at the same time, there was no obvious motive for murder.

The trial judge sentenced Mr Silich to life imprisonment, with a non-parole period of 15 years. The prosecution appealed this sentence, arguing that it was too lenient. On appeal, Mr Silich’s non-parole period was increased to 19 years. This means that he must spend a minimum of 19 years behind bars, before he is eligible to apply for release on parole.

While the defence of sleepwalking did not work for Mr Silich, it remains viable for a whole range of charges, especially driving charges such as dangerous driving and negligent driving. And while someone who kills during their sleep might not be a criminal, they may not be the kind of person you would want to invite to a sleepover either.