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District Court 27 February 2026

R v RE

[2026] NSWDC 21

Sexual offences
SEXUAL TOUCHING DEFENCE OF SEXSOMNIA

Citation: [2026] NSWDC 21
Court: District Court of New South Wales
Date: 27 February 2026
Judge(s): Mahony SC DCJ

Background

This matter concerned a judge-alone retrial of the accused, RE, on a single count of intentionally sexually touching a child (the complainant, MG) who was 14 years old at the time of the alleged offence. The accused had previously been found guilty on two counts at an earlier trial, but the convictions were overturned on appeal and a new trial was ordered on Count 1 only: see RE v R [2024] NSWCCA 180. An acquittal was entered on the second count following the successful appeal, and that acquittal was incontrovertible — meaning the second count could not be relitigated.

The Crown alleged that on 22 January 2021, during a group holiday at Ettalong Beach, the accused sexually touched the complainant while they were both on a bed in the accused's hotel room. The complainant's mother had told her to sit under the blankets next to the accused (referred to as "Uncle") because the room was cold. The Crown case was that the accused, while lying on his side facing away from the complainant, reached behind him with his right hand and stroked the complainant's leg before rubbing her vagina on the outside of her shorts. During the alleged touching, the complainant sent Instagram messages to her boyfriend describing what was occurring, and she took three photographs on her phone.

The accused raised two lines of defence. The first was a factual challenge — that the alleged conduct did not occur at all. The second, advanced in the alternative, was that even if the conduct did occur, it was not intentional or voluntary because the accused was suffering from a parasomnia known as sexsomnia, a condition in which sexual behaviours are performed during sleep without conscious awareness. Expert evidence on this topic was adduced from several specialists.

  • Did the alleged sexual touching occur? — Whether the Crown had proved beyond reasonable doubt that the accused touched the complainant in the manner alleged.

  • Was the conduct intentional and voluntary? — If the touching occurred, whether the accused's conduct was the product of a willed act, or whether the defence of sexsomnia (a form of parasomnia involving unconscious sexual conduct during sleep) raised a reasonable doubt about voluntariness.

  • Incontrovertibility of the acquittal on the second count — What effect, if any, the acquittal on Count 2 following the successful appeal had on the retrial of Count 1.

  • Procedural issues regarding the complainant's evidence — How the trial should proceed when the complainant was initially unavailable due to illness, including the use of audio-visual recordings from the first trial and limited further cross-examination pursuant to s 306D(2) of the Criminal Procedure Act 1986 (NSW).

Decision

Note: The full text of the judgment was truncated, and only a portion of the evidence and reasoning was available for this summary. The following observations are based on what was disclosed in the available text. The ultimate verdict and full reasoning on each issue are not fully captured in the extract provided.

The trial was conducted by judge alone, pursuant to an order made under s 132 of the Criminal Procedure Act 1986 (NSW). Because the complainant was initially unable to attend due to illness, the trial was adjourned from October 2025 to February 2026. Her evidence was presented primarily through the audio-visual recording of her police interview and her testimony from the first trial, supplemented by limited further cross-examination confined to issues relevant to Count 1.

The Crown's case relied heavily on the complainant's account — both her oral evidence and the contemporaneous Instagram messages she sent to her boyfriend during the alleged incident, which included statements such as "His trying to finger me" (sic). These messages, along with three photographs taken during the event, were presented as real-time corroboration of her account. The accused's ERISP (electronically recorded interview by police) was played, and evidence from the accused's wife and several other witnesses was adduced either in person or via transcripts from the first trial.

On the sexsomnia defence, evidence was heard from multiple experts including Dr Antonio Fernando, Dr Richard Furst, Dr Jeremy O'Dea, and Dr Pieternel Van Nieuwenhuijzen. This evidence was put forward to support the proposition that the accused may have been in a state of parasomnia during the alleged conduct, meaning his actions — if they occurred — were neither intentional nor voluntary. The court was required to assess whether this defence, on the totality of the evidence, raised a reasonable doubt about the voluntariness element of the offence.

The principle from R v Carroll (2002) 213 CLR 635 regarding the incontrovertibility of acquittals was relevant to the second count, which had been effectively acquitted following the successful appeal. This meant the Crown could not seek to relitigate that charge, and the retrial was confined to Count 1 only.

Orders Made

  • The full orders made by the Court are not available in the truncated text provided. The judgment is described as a "Judgment on Verdict," indicating that a verdict was delivered, but the specific finding (guilty or not guilty) and any consequential orders are not disclosed in the extract.

Key Takeaways

  • The District Court considered the defence of sexsomnia, a recognised parasomnia, which engaged the fundamental requirement that criminal conduct be voluntary and required the assessment of multiple expert medical opinions in evaluating the claim.

  • Contemporaneous Instagram messages sent by the complainant during the alleged offence served as a form of real-time documentation, demonstrating the increasing forensic significance of digital communications in sexual offence proceedings.

  • Under the principle established in R v Carroll, the acquittal secured on Count 2 following the successful appeal was incontrovertible, constraining the scope of the retrial to Count 1 alone in this multi-count matter.

  • Procedural mechanisms available under the Criminal Procedure Act 1986 (NSW) facilitated the management of the retrial, including the replay of the complainant's earlier audio-visual recorded evidence pursuant to s 306D and the tender of transcripts of other witnesses' evidence by agreement.

  • A judge-alone trial was conducted under s 132 of the Criminal Procedure Act 1986 (NSW), in circumstances where the complex clinical analysis underlying the sleep disorder defence was assessed by a judicial officer rather than a jury.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 132, 191, 306D(2)
- Evidence Act 1995 (NSW), s 191

Cases:
- 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