A man accused of indecently assaulting his daughter has been acquitted because he has "sexsomnia" and was asleep and oblivious when the acts occurred.
The man told the NSW District Court he was stunned when police arrested him in November 2019 and he learned what his nine-year-old daughter had accused him of doing.
He didn't doubt she was telling the court the truth but he had no memory of touching her vagina and breasts while sleeping next to her on two occasions in 2019, he said at his April trial.
He was found not guilty after experts gave evidence to say he had a condition called "sexsomnia".
It's a disorder which leads a person to engage in sexual acts while they're sleeping. The term was coined by a Canadian professor in 2003.
The prosecution conceded that the condition meant he did not touch his daughter voluntarily and he had no control over his behaviour.
The girl told her mother, who had recently split from the accused, that something "horrible" had happened to her the day after the second incident.
She wrote her a letter saying that her father had touched her "on the girls part on perpos (sic)".
The daughter said in evidence that she had climbed into her father's bed in November 2019 after being scared by loud voices on the street.
After he touched her vagina, she said she told him "no" in a strong voice. He moved his hand towards her breast and mumbled, including the word "pussy". He was soon still and silent, then began snoring.
It was a repeat of an earlier incident in July, when the girl had shared a bed with her father as they were sleeping over at the house of a family friend.
On that occasion he touched her on the vagina for about an hour, forcing her to grab a pillow to cover her private parts when he got up to go to the bathroom.
Her father had been drinking before going to bed on both nights.
Former wife says man 'touched her sexually during sleep'
The man's former wife had told him that he had occasionally sexually touched her during his sleep but in the morning he would have no recollection of it.
Subsequent partners made similar observations.
The man, who was a 42-year-old school principal at the time of the incidents, was seen by mental health and sleep experts who told the court he had the sleep disorder.
A sleep study showed he was grinding his teeth and moving his limbs during sleep.
His former wife said on a number of occasions she had found him sitting up in bed, asleep and commenting about a cricket game.
These sleep-related episodes helped psychiatrist and sleep medicine specialist Dr Antonio Fernando conclude the man was not feigning his symptoms.
District Court judge Richard Weinstein found the man had no paedophilic tendencies, in a judgment released last week.
The man said he was committed to ensuring that a similar incident never happens again. He said the events were his greatest regrets and spoke lovingly of his daughter.
The prosecutor argued that "sexsomnia" was a mental disorder, which would lead to a different verdict being recorded.
But though the term "sexsomnia" has appeared in the Diagnostic and Statistic Manual of Mental Disorders since 2013, the court found it was not a mental health impairment.
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