Solicitor: Mark Williams
Court: Ipswich District Court (Trial)
Date: March 2019
Our client who was 53 at the time of his trial and 49 years old when charged, was defending 2 x offences of indecently touching his 15 year old step-daughter by fondling her breasts on the inside of her clothing and brushing her vaginal area on the outside of her clothing, then kissing her.
The allegations were that his step-daughter asked for a back massage because her back and shoulders were sore due to physical and sport exercise she had been participating in.
This was a common thing and agreed by all parties that there was nothing untoward about this. Our client was obesely overweight, suffering from severe sleep apnoea and regularly used a CPAP machine.
Our client’s version was that while massaging her back, he fell asleep and while asleep he unconsciously touched the complainant indecently. At trial, the complainant agreed he was snoring during the massage and couldn’t be sure if the snoring was consistent the whole time. She further agreed that she couldn’t be sure if she was inappropriately touched while he was snoring. The prosecution maintained he was awake during the episode and therefore intentionally touched her inappropriately.
The matter endured several legal arguments to exclude prosecution evidence on the basis that their initial doctor did not have the appropriate expertise to give an opinion in court. We were successful in doing this and at trial the prosecution relied upon a different psychiatrist to give evidence.
We engaged a defence expert Professor and Doctor in sleep apnoea; a leader in this field of expertise who gave evidence that sleepwalking, sexsomnia and other parasomnias exist and are a real thing suffered by many people today. Expert evidence was given that our client was suffering from an episode of sexsomnia at the time.
Our client gave evidence confirming he had no knowledge of what occurred as he was asleep.
Ultimately the issue for the jury was whether our client was asleep or awake at the time of indecently touching the complainant. If he was asleep, then pursuant to section 23 of the Criminal Code, he is not criminally responsible for an act that occurs independently of his will.
The trial took four days and after 6 hours a verdict was reached where our client was acquitted on all charges.