A jury has been asked to decide whether a man experienced a sleep-induced episode of "sexsomnia" or if he consciously raped a female friend after a night out drinking.
Timothy Malcolm Rowland, 40, is accused of having non-consensual sex with the woman at his Sydney apartment on August 26, 2022, after the pair spent a night out together.
After drinking at cocktail bar Low 302 in inner-city Darlinghurst the long-term friends returned to Rowland's apartment about 1am, the jury heard during the week-long trial.
Once there, they drank some more and took a naked bath together before the woman fell asleep in Rowland's bed, the parties agreed.
About 6am, the woman allegedly woke to find Rowland having sex with her before she pushed him off, jumped out of the bed and left the apartment.
During a summing up to a jury on Tuesday, Judge John Pickering said it was not in dispute that sexsomnia existed and Rowland had the condition.
But the issue during the trial before Downing Centre District Court was whether he was having an episode at the time of the alleged rape.
It was also not in dispute that the woman was asleep when Rowland began having sex with her, the court was told.
"You'd be hardly a human being if you didn't have sympathy for what happened to her, irrespective of whether the Crown can prove this case or not," Judge Pickering said.
"She's woken up with someone having sex with her.
"Someone who's not just a stranger, but a platonic friend, someone she really admired and respected."
In her closing address, defence barrister Elana Scoufis said the evidence supported Rowland's claim he was not awake at the time of the alleged assault.
“This trial comes back to a very basic, simple issue,” she said.
“If the Crown can’t prove that he was awake at the time of that incident, he must be found not guilty."
During her evidence, the woman said she heard Rowland making "fake" sleeping noises after she pushed him off.
But Ms Scoufis contested the claims, saying the woman wasn't a sleep expert.
"She said that she was confused after," the barrister said.
"What happened to her was plainly very distressing."
Rowland was diagnosed by two experts as likely having sexsomnia, a condition in which sufferers engage in sexual activities while asleep.
Ms Scoufis said on the evening of the incident there was a “perfect storm” of triggers that would have caused Rowland to have an episode, including him consuming alcohol.
"He was very vulnerable to having an episode of sexsomnia," she said.
Rowland had taken steps to inform the woman of his condition, including saying to her on one occasion "I do some f***ed up things in my sleep", Ms Scoufis added.
The jury is expected to begin deliberating from Wednesday morning.
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