By Sarah McPhee
Within seconds of waking to find a man having sex with her after a night out together, a Sydney woman says she grabbed her phone and pressed record.
“Was that consensual? Was it OK?” Timothy Malcolm Rowland asked the woman in the minute-long video, tendered at his Downing Centre District Court trial this month and obtained by this masthead. “What happened? Did something happen? Bad?”
The woman, who cannot be identified, told him: “I don’t have anything to say.”
“I’m just gonna go home,” she said. “I’m leaving.”
Rowland, 40, pleaded not guilty to sexual intercourse without consent, arguing he was suffering from an “episode of sexsomnia”, also known as “sleep sex”, in August 2022 and woke to find himself having sex with the woman in his Darlinghurst bedroom.
Sexsomnia is a form of parasomnia such as sleepwalking and night terrors, the trial heard. It was not in dispute that the sexual act occurred or that Rowland suffers from the condition, but prosecutors alleged Rowland’s actions at the time were voluntary, and that he was awake and aware of what he was doing.
Timothy Malcolm Rowland (centre) arrives at Downing Centre District Court with his lawyers.Credit: Kate Geraghty
A 12-person jury on Thursday found Rowland not guilty of sexual assault after a day of deliberations.
Rowland breathed a sigh of relief and began crying, wiping his eyes with a tissue, as his family members embraced in the public gallery.
Rowland’s barrister, Elana Scoufis, successfully applied for costs, arguing the prosecution of her client was “unreasonable” from the moment the Crown was served with a report from a sleep specialist and psychiatrist for the defence.
As he discharged the jury, Judge John Pickering acknowledged that “what happened to the complainant was awful”.
“It doesn’t mean it was a criminal offence,” he said.
The judge said Rowland “didn’t do himself any favours” including turning any blame onto the complainant.
“I don’t think he was particularly supportive in the way he was recorded on that phone video,” Pickering said.
He told the jury he also appreciated they “probably wonder why the community doesn’t do more to deal with people with sexsomnia”, and said it “may be time for government officials” to consider a law regarding obligations for people with a diagnosis. Rowland had not been formally diagnosed at the time.
‘Confused, disgusted, a bit scared’
Rowland is the part-owner of The Bamboozle Room, a burlesque and cabaret business in Potts Point. His trial heard he and the woman attended a burlesque show together in Surry Hills before catching an Uber back to his apartment around 1am, where they drank, sang, Rowland played guitar, and they shared a bath.
The woman gave evidence nothing sexual happened in the bath, and she wrapped herself in a towel by the bed. Her next memory was thinking she was having a sex dream before waking to find Rowland having sex with her.
“I was freaking out,” the complainant told the court. “I pushed Tim off me really quickly and stood up.”
A photograph of Timothy Malcolm Rowland’s Darlinghurst apartment, tendered during his sexual assault trial.Credit: NSW District Court
She said Rowland’s eyes were shut, and he was making “sleeping, grunting noises that seemed like fake noises”.
The woman said 30 to 40 seconds passed between when she woke up and started recording on her phone.
She told the jury she felt “completely confused, disgusted, a bit scared [and] just really anxious to leave”. She left the apartment about 6.30am.
In texts, Rowland begged the woman to talk, but she initially replied: “Stop calling me, I don’t want to talk to you.”
Crown prosecutor Geoff Harrison submitted the woman was honest and truthful. He said the jury could not accept Rowland’s version of events that he and the woman lay in bed for “a few hours, probably three” after the incident until an alarm went off.
“I’m going to suggest that is a lie,” the prosecutor said. “You’ve seen her response, she’s out of there. In her mind, he’s crossed the line.”
During cross-examination, Rowland’s lawyers suggested the woman had been touching herself or moaning at the time. The woman replied: “Absolutely not.”
Woman wanted ‘proof’ of sexsomnia
The complainant said she “had not heard of sexsomnia” until the days after the incident, when she spoke to a woman who knew Rowland.
“I wanted to believe her because it wouldn’t be so traumatic to think that Tim would have done this and been aware,” she said. “I wanted to cling onto anything that would make it not that bad.”
She said Rowland had previously told her “I do some f---ed up things in my sleep” but it was “said in a joking way” so she did not take it seriously. “Nothing sexual that Tim did in his sleep was ever mentioned to me,” she said.
The trial heard Rowland told two psychiatrists he had explained his “sleep sex issue” to the woman and that he had “warned [the woman] about his sleep sex tendencies” and offered to sleep on the couch.
The woman said she met with Rowland and two others in September 2022 to discuss what had happened. She said she wanted “proof that the sexsomnia thing is real”, but was not provided with any.
The court heard the woman went to police in October 2022 and Rowland was arrested in February 2023.
A formal diagnosis
Rowland’s lawyers tendered pages of medical records dating back to his childhood when he was reportedly sleepwalking. The documents included a doctor’s referral to a sleep clinic in 2021 indicating that Rowland “has had sex in his sleep”.
Dr Tony Fernando, a psychiatrist and sleep specialist called as the sole defence witness, prepared a report after reviewing the records, interviewing Rowland, his mother, and former partners.
Fernando wrote he was “confident that the accused suffers from NREM [non-rapid eye movement] parasomnia including sexsomnia”. Dr Andrew Ellis, a forensic psychiatrist called by the Crown, agreed with that opinion.
Fernando formally diagnosed Rowland with sexsomnia in November 2024. He agreed Rowland was not being treated for his condition at the time of the incident in August 2022, but noted he had symptoms since he was 20.
“The evidence strongly supports that Mr Rowland’s actions on the night of the alleged offence align with a genuine sexsomnia episode rather than deliberate, conscious behaviour,” Fernando said in his report.
Rowland’s barrister said there was a “perfect storm” of triggers for an episode of sexsomnia, including alcohol consumption, untreated sleep apnoea, and disrupted sleep. Scoufis said what happened to the woman was “plainly very distressing” but argued there was “no evidence” capable of satisfying the jury that Rowland had been conscious or awake.
During the trial, the jury asked questions via notes including whether there was a treatment protocol for sexsomnia and whether there was evidence Rowland was following advice to manage his condition.
They were reminded by the judge that they were not there to make a moral judgment or to “try and convict him of a crime that doesn’t even exist in NSW” such as negligence in dealing with his condition.
“This trial is all about the Crown having to prove beyond reasonable doubt that he was awake at the time, that he was conscious, that he was acting in a voluntary fashion,” Pickering said.
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