File Number(s): 2021/00044304

R v RE [2026] NSWDC 21 | Case summary | Zoe

NSWNSWDC

R v RE

[2026] NSWDC 21

District Court of NSW|2026-02-27|Before: Mahony SC DCJ

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2026-02-27

Before

Mahony SC DCJ

Catchwords

Sexual touching
principle of incontrovertibility of acquittal on second
count following appeal
defence of sexsomnia

Source

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Catchwords

Sexual touchingprinciple of incontrovertibility of acquittal on secondcount following appealdefence of sexsomnia

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: R v RE [2026] NSWDC 21

Hearing dates: 21 October 2025 - 23 October 2025; 8 February 2026 - 13 February 2026

Date of orders: 27 February 2026

Decision date: 27 February 2026

Jurisdiction: Criminal

Before: Mahony SC DCJ

Decision: Verdict of Not Guilty

Catchwords: Sexual touching; principle of incontrovertibility of acquittal on second count following appeal; defence of sexsomnia

Legislation Cited: Criminal Procedure Act 1986 (NSW)

Cases Cited: Abdullah v R [2019] NSWCCA 294
Barney v R [2023] NSWCCA 85
R v Carroll (2002) 213 CLR 635; [2002] HCA 55
RE v R [2024] NSWCCA 180
The Queen v Storey (1978) 140 CLR 364

Category: Principal judgment

Parties: RE (the accused)
Director of Public Prosecutions (NSW) (the Crown)

Representation: Counsel:
Mr T Weller-Wong (the accused)
Mr G Whitaker (the Crown)
Ms H Cantor (the Crown)
Solicitors:
Lamont Law (the accused)
Director of Public Prosecutions (NSW) (the Crown)

An appeal following verdicts of guilty on two Counts in a previous trial was successful and a new trial ordered on Count 1 – see RE v R [2024] NSWCCA 180. An order pursuant to s132 of the Criminal Procedure Act 1986 (NSW) (“the CPA”) for trial by judge alone was made on 21 August 2025 by Wilson DCJ.
A further order was made that the complainant, whose evidence on re-trial was to be by way of replaying the audio-visual recording of her evidence in the previous trial, was required for further cross-examination pursuant to s306D(2) of the CPA. At the commencement of the trial the Crown informed the Court that the complainant was unable to attend court due to illness and had obtained a medical certificate for 21 October 2025. That certificate was subsequently extended for the period 21 October 2025 until 24 October 2025.
The trial proceeded by agreement between the parties by the calling of other evidence. First the ERISP of the accused by investigating police on 16 February 2021 was played and the transcript marked MFI 6. The wife of the accused, GE, then gave evidence and was cross-examined.
By agreement, the transcript of the following witnesses’ evidence in the previous trial was tendered and initially marked for identification:-
Evidence of the complainant’s sister, whose name has been anonymised to XG, on 28 November 2023 – MFI 4, which became Exhibit Q
Evidence of Preetham Jalady on 28 November 2023 – MFI 5, which became Exhibit R
Evidence of SI on 4 December 2023 – MFI 7, which became Exhibit S
Evidence of Lisa Hamilton on 30 November 2023 – MFI 8, which became Exhibit T
In his opening address, counsel for the accused identified the issues in the trial as follows:-
Whether the conduct alleged in Count 1 did occur, or alternatively,
If it did occur, whether the conduct was neither intentional nor voluntary but rather occurred as a result of the accused suffering a parasomnia known as sexsomnia. The evidence concerning that issue was also dealt with by way of relying on the transcripts of the following evidence from the first trial:-

In January 2021 a number of families who were close friends arranged to go on a holiday together at a hotel in Ettalong Beach. That included the family of the complainant, MG who was born on 20 May 2006 and was 14 at the time. They were there from the 20th to 26th of January 2021.
The accused also attended with his family. The two families, with others, would socialise during the day and meet for dinner at night. On Friday 22 January 2021 the Crown case is that after a day at the beach an arrangement was made for the various families to meet for dinner that night. At approximately 8:00 p.m. the complainant and her mother, NG went to the hotel room that was occupied by the accused and his wife to arrange that night’s activities. As they were staying on different levels of the hotel and a security card was required to enter each level, they were met in the reception by the accused’s wife and taken to the accused’s hotel room. When they arrived the accused was laying in the bed in that room. Also in the room was a sofa which was capable of becoming a sofa bed, and a number of chairs. The air conditioning was on and the complainant, who felt cold, asked her mother if it could be turned off. Her mother told her to leave the air conditioning on and to get into the bed next to the accused who she referred to as “Uncle” and sit under the blankets.
The Crown case is that the complainant sat cross-legged on the bed with the blankets over her and that the accused was laying on his left side facing away from the complainant and towards his wife and the complainant’s mother who were seated on the sofa bed.
For a period of some 45 minutes to 1 hour, the two women were engaging in conversation and the TV was on. The complainant was communicating with her then boyfriend, DM via Instagram on her mobile phone during this period.
The Crown case is that after a period of some 45 minutes the accused who was still laying on his left side reached behind him with his right arm and began stroking the complainant’s leg with his fingertips. He then stroked her leg further up her thigh and began rubbing her vagina on the outside of the shorts she was wearing under her dress. This conduct constituted the offence of sexual touching on the Indictment.
At the time this was occurring the complainant was communicating what was happening by messages to DM on Instagram. Those messages included the complainant saying, “His trying to finger me” (sic) and DM saying, “Tell him to stop.” During the alleged event the complainant took three photos on her mobile phone and sent them to DM. The text messages are contained in Annexure A to Exhibit H which set out agreed facts in the matter.
The Crown case is that this activity continued for approximately 7 minutes at which point the accused’s phone rang. It is common ground that the accused’s wife had to tell him that his phone was ringing and that he had to get out of bed to answer it. A factual dispute concerns whether the accused answered the phone or whether he had to call the caller back. What is clear is that the accused spoke on the phone to another member of the group, Mr E Guirguis who was invited to join them in the accused’s room, before they were to go to dinner at a club next door.
The complainant made no complaint of inappropriate behaviour by the accused to any adult present during the holiday. She however had told her boyfriend DM who told the complainant’s sister’s boyfriend, Preetham Jalady who subsequently spoke to the complainant. The following week the complainant told her mother about the incident and the matter was reported to police. What follows is a summary of the evidence in the Crown case, but not in the order in which the evidence was adduced at trial because of the unavailability of the complainant and her mother to give evidence which caused the trial to be adjourned.

The accused has the presumption of innocence in his favour, that is, he is presumed to be innocent unless and until the Crown has proved each of the elements of the offence beyond reasonable doubt. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charge, beyond reasonable doubt. Speculation cannot enter into my considerations and suspicion, not even the gravest of suspicion, can be a substitute for proof beyond reasonable doubt.
I have heard submissions from the Crown and counsel for the accused in their addresses. I will consider those submissions and give them such weight as I think they deserve. In no sense are those submissions evidence in the trial.
It is for me to assess the various witnesses and decide whether they are reliable. The reliability of any witness’ evidence depends upon both the witness’ honesty and the witness’ accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me. I am not obliged to accept the whole of the evidence of any witness. I may, if I think fit, accept part and reject part of that witness’ evidence.
I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question, and it only becomes evidence of the fact if the witness accepts that proposition as true or if there is other evidence that proves the proposition.
I remind myself that I may as the Judge of the facts draw inferences from the direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. In this criminal trial I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a rational inference in the circumstances.
The elements of the offence in Count 1 on the Indictment of sexual touching are as follows. The Crown must prove beyond reasonable doubt that the accused:
Sexually touched the complainant,
The touching was intentional, and
The complainant was under 16 years old, namely 14 years old.
There is no dispute about the third element of the offence. The complainant’s birth certificate is in evidence as Exhibit G.

The Crown submitted that I would not accept a submission on behalf of the accused that the complainant’s account was implausible. It was submitted there was no precision in the placement of the accused and complainant on the bed. For example, the accused’s own exhibit, Exhibit 1, showed three women in the same bed.
The Crown also submitted that I would not accept the accused’s submission that the complainant had a motive to lie. That motive had been put to her in cross-examination, namely that she made the allegation in order to “patch things up” with DM, with which she had disagreed. The Crown submitted that the suggested motive could not possibly be a motive to lie in that a sexual assault could not “patch things up”.
The Crown noted that the Court would have to give the accused the full benefit of his acquittal on Count 2, but that the full benefit did not mean that the evidence cannot have the incidental effect of casting doubt upon or even demonstrating the error of an earlier decision, relying on R v Carroll (2002) 213 CLR 635; [2002] HCA 55 at [50].
The Crown further submitted that the principle of incontrovertibility required the court to discern the basis of the first jury’s verdict, in this case, the Court of Criminal Appeal’s acquittal on Count 2, relying on Abdullah v R [2019] NSWCCA 294. In response to a question from the Court, the Crown agreed that the basis of the CCA’s acquittal on Count 2 was clear enough, namely the timing issue concerning the photographs and phone calls which rendered the complainant’s evidence in relation to that count unreliable.
The Crown submitted that in respect of the acquittal count the Crown had run its case by reference to the Instagram messages the complainant had sent between 8:46 p.m. and 8:52 p.m. That timeline was deemed to be implausible by reference to the call charge records relating to the various calls between the accused and Emad Guirguis.
The Crown submitted there could be no issue that the first photograph sent by the complainant was at 8:42 p.m. which was during the alleged Count 1 conduct. That accords with her evidence about the first two photos. The Crown argued the complainant’s evidence that was at odds with the unchallenged evidence was the product of an honest mistake and did not undermine the reliability of her evidence concerning Count 1.
The Crown submitted that the photograph, Exhibit B, had been provided by DM to Preetham Jalady who then provided it to the complainant’s sister, XG. The Crown submitted that the call charge records indicated that the accused was not on the phone call at the time the second photo was sent and that the complainant’s evidence in this regard was understandably uncertain.
As the Crown relied on Exhibit B as representing that the accused was on the phone, and the photo was sent at 8:46 p.m., this locked the complainant’s version into a timing that was incompatible with the complainant’s evidence which the CCA therefore viewed as incompatible with the call charge records. The Crown submitted:-

The Crown went on to submit that there was further uncertainty as to the complainant’s estimate of the duration of the conduct in relation to both Count 1 and Count 2.
As an aide to her submissions, the Crown prepared a table of the text messages in Exhibit H as a visual representation of what messages related to each count. It was submitted this allowed the Court to understand the complainant’s evidence in a different way from the way the Crown case ran at the first trial and on appeal, because the Crown case was restrictive in the way it was run.
The Crown submitted the Court of Criminal Appeal’s finding of unreliability of the complainant’s evidence regarding Count 2 does not lead to a finding that her evidence in respect of Count 1 lacks credibility, nor does it mean that the complainant’s evidence is necessarily unreliable on all matters, relying on Barney v R [2023] NSWCCA 85 at [21]. The Crown submitted that the complainant’s evidence in respect of the respective acts that was at odds with the unchallenged evidence as to the timing of the phone call and Instagram messages “was the product of honest mistake and thus does not undermine the credibility or reliability of the complainant’s account of Count 1”. The Crown submitted that any issue with the complainant’s reliability in respect of Count 2 could be compartmentalised to the issue of timing.
The Crown accepted that it had the burden of proof beyond reasonable doubt on the issue of automatism to prove that the accused was intentionally touching the complainant.
The Crown referred to the ERISP interview where he told police, “that it was normal and nothing strange and nothing weird for MG to be in the bed, even if he was in bed (A284, A285).” The Crown also relied on what the accused told police about his intimate relationship with his wife characterising it as “a very strange account of normal sex”. The account he gave concerning features of their marital sexual relationship was submitted to be “the accused essentially trying his luck beginning sexual encounters while his wife was asleep”, rather than an episode of sexsomnia. Similarly, what he wrote to the complainant’s father about an incident with his daughter, SI two years beforehand may be regarded as not an episode of sexsomnia “because the accused says that he woke up”. The evidence of the accused’s daughter, SI was submitted to be “a little different” and the incident was trivial.
The Crown submitted that the evidence of the accused’s wife was important evidence in the trial. The Crown referred to her evidence that the sexual things the accused does in his sleep began about 15 years into their marriage. The Crown submitted, “in light of the accused’s account of how he instigates sexual activity on a normal day in his ERISP, what GE is describing is, it’s submitted, unlikely to be sexsomnia”.
The Crown submitted that her evidence that she thought his sexual behaviour while he was asleep was normal was very difficult to believe. When comparing intentional sexual behaviour between them, the Crown submitted the major point of difference was that he did not talk to her after sex when he was asleep and the next day, he could not remember it. Other features of her evidence, namely that he fell asleep too quickly and was not talking afterwards were totally consistent with his general presentation and not an indicator of sexsomnia.
The Crown submitted that the accused did not corroborate his wife’s evidence.
The Crown submitted that the accused’s wife’s evidence that she was hypervigilant about anyone sleeping next to the accused was inherently implausible because it was simply unbelievable that she allowed MG to enter the bed with him knowing that he suffered from sexsomnia which he acted upon in his sleep with a frequency of about once a month. Her evidence that she was watching to make sure everything was ok was simply not a credible explanation. The Crown further submitted that she was looking at MG the entire time and that nothing untoward had occurred was inconsistent with the text messages sent by the accused to the complainant’s father on 2 February 2021.
The Crown submitted the Court would not find that the accused’s wife was a witness of truth because her version was not backed up by her husband’s ERISP, if he was truly performing unusual actions in his sleep. It makes no sense that she would allow MG to share the bed with him if she knew that he would act sexually in his sleep. The Crown submitted that her evidence should be rejected and the rejection of her evidence has a flow on effect to the evidence of the experts in relation to sexsomnia.
The Crown then submitted that each of the experts differed on their level and degree of experience, training and study although Dr Fernando was the most qualified to give evidence about sexsomnia. As all three experts found that it was likely that the accused experienced an episode of sexsomnia, the Crown must persuade the Court to reject that evidence so as to establish proof beyond reasonable doubt of Count 1. The Crown submitted that the opinions of all three experts were inextricably linked to what the accused’s wife said. The Crown submitted that she was not a witness of truth for the reasons set out above which formed a basis for rejecting the expert opinions which were largely founded on her accounts. The Crown acknowledged that Dr Fernando gave evidence that he would still find it possible to make a diagnosis of sexsomnia without the accused’s wife’s accounts of the accused’s sleeping patterns.
The Crown submitted that Dr Furst also diagnosed the accused with sexsomnia on two bases. First, the history provided by the accused and his wife and secondly, the summary of the history and examinations outlined in Dr Fernando’s report.
The Crown also referred to the opinions of Dr O’Dea which were based only on an interview with the accused. The Crown characterised the history on which he proceeded as being completely at odds with the accused’s interview with police.
Ultimately the Crown submitted that the Court would reject the diagnosis of sexsomnia based on the accounts which ultimately lack credibility. Accepting that submission, the accused’s act provides the most convincing evidence of his intention which, the Crown submitted, was to intentionally touch the complainant.
The Crown submitted that the character evidence relied on by the accused did not provide a defence for him and was a matter of weight.
The Crown submitted the complaint evidence to DM was a contemporaneous and detailed account of the accused’s actual actions. The Crown characterised it as compelling evidence which could be used both for the truth of the representation and to affirm the credit of the complainant. The Crown submitted the complaint to her mother was not relied upon for the truth of the representation in circumstances where the complainant didn’t speak about the conduct in Count 1 to her mother. However that evidence was relied on to support the credit of the complainant.
The Crown submitted that the Court would take into account the complainant’s evidence as to why she didn’t do anything, namely why she didn’t scream or call out to her mother. The complainant gave evidence, “I don’t know, I didn’t want to ruin the holiday or GE. GE is your best friend and I didn’t want to cause any problem between both of you”. The Crown submitted this to be a compelling account which made sense in the context of the relationships as viewed by a 14 year old complainant. This was further corroborated by the message the complainant sent to DM at the time. The Crown submitted that the complainant’s conduct and actions were entirely consistent with her complaint. The accused touched her sexually while she was on the bed and she made immediate complaint to her boyfriend but could not tell her mother in the context of the family holiday and the relationship she knew her disclosure would destroy. The evidence established that in the following week she didn’t eat properly. She subsequently reported the matter to the police and gave compelling evidence in court. A true verdict in this matter is a verdict of guilty.

Counsel for the accused first submitted that the Court would not accept the Crown submissions recasting the timeline of events in respect of the Instagram messages exchanged between the complainant and DM which would require a rejection of parts of her evidence without those matters ever having been put to her. There was no basis for accepting the Crown’s submission that the Court might reinterpret the timeline in circumstances where the evidence as it relates to the acquittal count is exactly the same in this trial as it was in the first trial.
Counsel submitted that the principle of incontrovertibility meant that I could only interpret the evidence about what occurred in the acquittal count in a way that was consistent with the findings in the Court of Criminal Appeal, referring to [108] and [123]-[124] of the judgment.
It was submitted that in circumstances where the Crown had the opportunity to make an application to examine the complainant in relation to further matters, but did not, the finding could not be made that her evidence was confused, or uncertain about the Instagram messages and their timing. The Crown attempt to recast its case in respect of the messages was contrary to the evidence of the complainant as it had been adduced in this trial.
Counsel took issue with the Crown’s characterisation of the evidence of the accused’s wife that there were only two differentiating features as the basis for the diagnosis of sexsomnia whereas in fact, she had enumerated a number of features of his conduct when asleep. Further, any history between times when the accused had contact with the complainant prior to this allegation was not something that was explored with the accused’s wife.
In reviewing the evidence of the accused’s wife, it was submitted that some allowance should be made for the fact that she was giving evidence about events that took place over the course of 15 years. It was noted that the accused was her one and only ever sexual partner and therefore her “normal” is what she experienced with the accused. The Court would also accept the evidence given by her that she didn’t interfere when the complainant got onto the bed with the accused as the complainant’s mother was present and had told her to go there and, in their culture, it wasn’t considered polite to contradict the mother. Further, the mother was close by, keeping an eye on things and would have been able to intervene. Counsel also noted that it was embarrassing for the accused’s wife to raise this issue concerning their intimate relationship.
Counsel submitted that at the time of his ERISP interview the accused had no knowledge of the existence of a condition called sexsomnia or parasomnia sexualised activities. It was submitted that at times during the interview he tried to give MG the benefit of the doubt but in general he maintained that he was asleep at the time anything could have happened with her. When viewed as a whole, in the ERISP he categorically rejects the acquittal count. With respect to Count 1, which happened before the phone call, the Court would be well entitled to take the view that his evidence was that he was asleep prior to the phone call, he doesn’t know what happened in that period of time and that if it did happen, it happened while he was asleep. He gave some context of that by telling the police about the incident with his daughter which had happened some years beforehand.
Counsel then outlined the two ways in which the defence case is put, namely first, that the accused did not sexually touch the complainant and secondly, that if that conduct did occur it was a reasonable possibility that it was not a voluntary act and therefore, not a crime.
On the first basis, counsel submitted there was 7 broad topics the Court would take into account giving rise to serious doubt about the occurrence of the conduct alleged. First, it was extremely unlikely the conduct occurred in the way in which the complainant described it. Counsel submitted it would have been a very awkward manoeuvre for the accused to engage in at a time when the complainant’s mother and his wife were sitting in the adjacent bed over a period of 45 minutes to an hour.
Secondly, was the failure of his wife and the complainant’s mother to notice anything during that period of time, particularly given the complainant’s evidence that the rubbing of her vagina took place over a period of a few minutes and the entirety of Count 1 lasted about 7 minutes. Neither the complainant’s mother, nor the accused’s wife gave any evidence that they observed any movement until the accused got up and answered the phone. His wife gave evidence that he was asleep when the phone rang and that he didn’t move, whereas the complainant’s mother had no memory of him moving.
Thirdly, the complainant’s evidence in relation to the Instagram messages in Exhibit 2 significantly damaged her credibility. When questioned about those messages, she was being evasive, equivocal or misleading about the nature and character of the messages which would adversely impact on the Court’s assessment of her credibility as an honest, truthful and reliable witness. The Court would not accept her characterisation of the messages as being a “light-hearted chat or a tease with her boyfriend,” rather DM’s displeasure or unhappiness with her messages was obvious and her evidence in relation to them was misleading, incorrect and a fabrication to try and put a gloss on the evidence that reflected poorly on her. When she finally did accept that DM had become upset or offended, she would only accept that he was “a bit cut” or a bit upset. Counsel submitted that it was clearly a conversation where DM’s feelings were hurt and it was only when he failed to respond to her on 7 occasions, the inference being that she had become upset and eventually pleaded with him not be mad at her. Counsel submitted that the evidence established she was attempting to cast those messages in a much more innocent way than in fact they were. Thus the Court could assess her as an unreliable and untruthful historian.
Fourthly, the same evidence proved that the complainant had a motive to lie in respect of Count 1, that motive was to engender feelings of sympathy, empathy and commitment from DM by making the complaint to him about the sexual touching.
Counsel submitted that this was also in an indirect way supported by the fact that DM was the main source of complaint from her as each of the other complaint witnesses found out from someone else about the nature of the allegations.
Fifthly, counsel submitted the consequences of an acquittal on Count 2 would eventually flow into an assessment of the credibility of the complainant in Count 1. Giving the accused the full benefit of his acquittal means accepting that the complainant’s evidence about the occurrence of the conduct in the acquittal count was significantly undermined. It further meant accepting that the conduct alleged in Count 2 could not have occurred consistently with the evidence that the complainant gave at trial and that her evidence was irreconcilable with the timing of the phone calls because she was lying about that conduct and it did not in fact occur. That was a powerful inference to be drawn from the evidence and was almost terminal to the complainant’s credibility. Counsel then outlined what he submitted was a far more likely scenario of what occurred based on the timeline.
Sixthly, counsel relied on the physical limitation the accused had due to shoulder pain in both shoulders and being prescribed Tramadol. He had disclosed in his ERISP interview in the context of providing an explanation that he could not move his arms in the fashion alleged. Counsel characterised it as “circumstantial corroborative circumstance in relation to whether or not he could have engaged in the conduct or whether it was likely that he could’ve engaged in the conduct as alleged”.
Seventhly, the Court could take into account the accused’s good character as outlined in the four affidavits read on his behalf. That evidence established that he had unsupervised contact with children or teenage girls as a teacher and weighed heavily in favour of the suggestion that he did not engage in the conduct alleged against him.
Counsel submitted that the evidence established that the accused was asleep immediately before the telephone call from Mr Guirguis. Each of the three experts were unanimously of the opinion that the accused suffered an episode of sexsomnia at the time. Dr Fernando had based his diagnosis on his interview with the accused, and a separate interview with the accused’s wife. He had further reviewed the record of interview with the complainant, the police statement of the complainant’s mother, the accused’s ERISP, the statement of Mr Guirguis, the photographs and video depicting the accused sleeping and the medical report of Dr Chan dated 7 April 2021. Dr Fernando had stated the most significant source of information was that of the accused’s wife because the nature of the condition is that the person suffering from a parasomnia doesn’t know what has happened which was consistent with aspects of the accused’s interview with the police. Further, the diagnosis was consistent with what was referred to as to the Buchanan checklist of ten matters on which Dr Fernando based his findings to come to the following conclusion:-

Counsel then rehearsed the evidence that established the accused was asleep at the time immediately before the telephone call from Mr Guirguis. That evidence was in the context of the complainant’s evidence that the accused had been in the bed for 45 minutes to an hour before the alleged conduct. When viewed as a whole, a combination of the various aspects of the evidence provides a powerful basis for a finding that the accused was asleep at the time of the phone call and immediately preceding when the conduct in Count 1 was alleged to have taken place. It was submitted that the evidence of MG to the effect that the accused was watching TV during that period of time could not be accepted as she could not see his face and could not remember what position he was lying in, or him talking to anyone for the entire period. Both MG and NG gave evidence that the accused’s wife woke him up to answer the phone (although NG disavowed her evidence in the first trial). It was submitted that the Court would accept evidence that he was asleep and that his eyes were closed at the time the phone rang. It was submitted that what precipitated the accused getting out of bed was his wife saying words directed towards him. Both the phone records and the agreed facts in Exhibit H reflect that he in fact missed a call from Mr Guiguis, something that neither MG nor NG seem to recall. Counsel characterised this as a significant piece of circumstantial evidence that suggested he was asleep at the time the call was coming through to his phone.
Counsel further relied on the evidence of Emad Guirguis in which he told the Court that the accused told him he had missed the phone call because he was asleep and that his wife had woken him up. Mr Guirguis was cross-examined on this point but remained relatively steadfast in his evidence that the accused said he was asleep. He gave a reasonable explanation for that not being in his police statement. It was submitted that Mr Guirguis was a neutral party to the proceedings and had no particular allegiance to any party.
It was submitted the Court would also have regard to the evidence that it wasn’t unusual for the accused to fall asleep at random times, based on the evidence of his wife and the photographs in Exhibit D. Mr Guirguis also gave evidence that the accused fell asleep at his mother’s funeral.
Counsel also relied on the evidence of the pre-existing diagnosis of obstructive sleep apnoea and the accused’s extensive history of falling asleep very quickly when he sits or lies down.
Counsel also relied on the evidence concerning Tramadol as a painkiller. One of the most common side effects of that was falling asleep.
Counsel submitted the Court would have significant doubt about whether the conduct as alleged by MG occurred at all in respect of Count 1 but if the Court was satisfied then the evidence concerning whether he was asleep at the time was almost overwhelming and on that alternative basis he was entitled to an acquittal.

The Court of Criminal Appeal held that in the first trial the complainant’s evidence in respect of Count 2 was tied, inextricably, to the Instagram messages that she said she was sending DM as the events were occurring. This led to a finding that her evidence concerning Count 2 was unreliable because it could not be reconciled with the timing of the phone calls in the agreed facts at the time the accused got out of the bed and spoke to Mr Guirguis on the phone. This finding led to an ultimate finding that the verdict on Count 2 was unreasonable and that the appellant should be acquitted on that count (see [124]). The Court went on to find that the same result does not inexorably follow on Count 1, as the complainant’s evidence was not directly impacted by the timing issue that affected her evidence on Count 2 (at [125]).
I have, in accordance with the direction pursuant to Ewen v R above, given careful consideration to her evidence, making appropriate allowances for her age and the statutory directions I have given myself. Through that prism, I am not satisfied that the Instagram messages in Exhibit 2 provide a foundation for the complainant to lie or provide a motive for her to do so in making the allegation in Count 1.
Notwithstanding that she was somewhat evasive about whether DM was hurt or offended by her messages, that does not erode her credibility as a witness generally and I find that she did give a truthful account as to what occurred when she was on the bed, under the covers, and next to the accused, and that her evidence in relation to Count 1 was reliable.
I am satisfied that her evidence is supported by the messages in Exhibit H, Annexure A between 8:40 p.m. and 8:42 p.m., and I accept her explanation for not disclosing immediately what happened, i.e., that the accused’s wife was her mother’s best friend and that she did not want to ruin the holiday. Her complaint to DM and to Preetham Jalady give some support to her version, and their evidence and that of her mother also support her credibility. In coming to that finding, I do not accept the Crown submissions that the evidence of the complainant in respect of Count 2 was honestly mistaken or that her evidence regarding the photo in Exhibit B was “understandably uncertain”. I also reject the Crown submission that a finding should be made that the photo in Exhibit B was, in fact, the third photo sent by the complainant. There is no basis in the evidence on which such a finding could be made, and I accept the submission on behalf of the accused that it was an attempt to recast the Crown case so as to fit with the objective evidence concerning the timing of the photos and phone calls.
I am satisfied that GE was doing her best to give truthful evidence, including evidence of her intimate relationship with the accused over a period of some 30 years. I have taken into account that the accused was her only sexual partner, and there are cultural and religious factors that both inform and colour her life experience and recollection. I therefore reject the Crown’s submission that her evidence should not be accepted.
I am not so satisfied about the evidence of NG. At times, notwithstanding that she had the benefit of an Arabic interpreter to translate for her, she was evasive in her evidence. I find that her evidence was unreliable in important respects. For example, she did not remember where the accused was in the hotel room when she arrived. She did not remember what position he was lying in on the bed, or whether he moved at all during the time she was there. Nor could she remember if he engaged in any conversation when she was in the room. She gave incorrect evidence concerning the accused answering the phone when Mr Guirguis first called. Further, she did not remember where the accused picked the phone up from and could not remember any conversation that took place. Further, she gave evidence that she didn’t know but asserted that the accused was watching TV and was not asleep when she couldn’t see his face.
NG also disavowed evidence given by her in the previous trial that GE woke the accused up to answer the phone call from Mr Guirguis, stating that it was a mistake and that she didn’t mean it. She gave evidence that when she said, “She woke him up”, “I meant she asked him to get up”. She contended that this was the fault of the interpreter. I found her evidence concerning whether the accused was asleep or not was unreliable. This was clearly an important issue in the trial of which she was aware, and I do not accept her explanation for her inconsistent prior evidence that she observed the accused to be asleep by stating that the interpreter provided an incorrect translation.
Otherwise, each of the witnesses who gave evidence before me were doing their best to give truthful evidence, notwithstanding some faulty recollection of events e.g. whether the phone rang once or twice when Mr Guirguis rang the accused’s phone. I accept Mr Guirguis’ evidence that when he first called the accused, he did not answer but that the accused called him back shortly afterwards, as reflected in the agreed facts in Exhibit H.
Of those witnesses whose evidence was dealt with by way of tendering the transcript, no submission was made by either party that their credit was in issue. I have therefore accepted their evidence as being reliable. I also accept the evidence, that was not challenged by the Crown, that the accused is a man of good character and that his good character may be taken into account on the question of whether the Crown has proved his guilt beyond reasonable doubt.

Having found the complainant’s evidence of what occurred reliable, I find that the accused did touch her on her left upper leg and thigh with his right hand, and that he touched her vagina on the outside of the shorts she was wearing under her dress. I am therefore satisfied beyond reasonable doubt that the first element of the offence in Count 1 is proved, and the accused sexually touched the complainant. I am not satisfied that with reference to his shoulders, the accused suffered any physical impediment in his capacity to do so.
I am also satisfied that the accused was asleep immediately before his phone rang when Mr Guirguis called him, that the accused was woken by his wife and that the accused then got out of bed and called Mr Guirguis back. I accept the timing of those phone calls meant that he was asleep at the time he sexually touched the complainant. I find that he therefore did not do so voluntarily or intentionally.
I also accept the evidence of the three experts, Dr Fernado, Dr Furst and Dr O’Dea, that at the time of the touching the accused was suffering from a parasomnia known as sexsomnia. In coming to that conclusion I have taken into account the following:-
The history given by the accused’s wife as to sexual intercourse occurring when the accused was asleep and other sexual conduct while he was asleep, over a period of 15 years.
The marked differences in the accused’s conduct on each occasion compared to his conduct when awake and conscious.
His lack of memory of such occasions.
His history of sleepwalking and other activities whilst asleep e.g. the evidence concerning an incident when he touched his daughter on an occasion when she was asleep next to him.
The accused’s assertion that he was asleep at the time, and the fact that the touching occurred after a period of about 45 minutes, in which the accused had the opportunity to fall into a deep sleep.
Mr Guirguis’ evidence concerning the accused falling asleep in public places.
Dr Fernando’s positive findings in respect of the Buchanan checklist which led to his conclusion that sexsomnia is a probable explanation for the touching that occurred.
The conclusions reached by Dr Furst and Dr O’Dea that Dr Fernando’s conclusion was correct.
Giving full effect to the directions of law that I have given myself, I find that there was a reasonable possibility that the accused was suffering from sexsomnia at the time of the sexual touching and that the Crown has not established beyond reasonable doubt that he was not.

R v RE

At a glance

Court

Decision date

Before

Catchwords

Source

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Catchwords

Judgment

JUDGMENT ON VERDICT

Overview of the Crown case

Evidence in the Crown case

Evidence of the complainant, MG

Evidence of the complainant’s mother, NG

Evidence of Mr Emad Guirguis

Evidence of RG

Evidence of Preetham Jalady

Evidence of XG

Evidence of GE

Evidence of SI

Evidence of the Officer-In-Charge

ERISP of the accused

Summary of the expert evidence in the case

Evidence of Dr Antonio Fernando

Evidence of Dr Richard Furst

Evidence of Dr Jeremy O’Dea

Evidence of Dr Pieternel Van Nieuwenhuijzen

Further evidence for the accused

Directions of law

The Crown submissions

The accused’s address

Further directions of law

Agreed facts pursuant to s191 of the Evidence Act 1995

Further findings regarding reliability of witness’ evidence

The complainant

Further findings of fact

Determination

Parties

Legislation Cited (3)

Cases Cited (2)