A Farmborough Heights man accused of filming a woman dressed in denim hot pants while she was sleeping on an early morning South Coast train has failed to have his case thrown out of court due to lack of evidence.
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Derek Quiros, 35, was charged with one count of attempting to film a person's private parts without consent, for the purpose of sexual gratification, stemming from the March 2018 incident.
It is alleged Quiros used his mobile phone to video the woman sleeping on the seat, focusing specifically on her thigh and lower buttock area, which was visible due to the length of her shorts.
Police obtained a copy of the mobile phone footage as well as CCTV footage from inside the train carriage. Both were played at a hearing in Wollongong Local Court on Thursday after Quiros pleaded not guilty.
Defence lawyer Graeme Morrison asked the court to dismiss the charge against his client, arguing the prosecution had no prima facie case. He said Quiros admitted shooting the videos, but argued what was captured in them - the woman's upper thigh and part of her buttock - did not constitute "private parts" as defined at law.
According to the NSW Crimes Act 1900, private parts is defined as "a person's genital area or anal area, whether bare or covered by underwear".
He also submitted the evidence failed to establish beyond reasonable doubt that Quiros had shot the videos "for sexual gratification".
However, Magistrate Mark Douglass refused to dismiss the charge, finding the case should proceed on the current evidence.
He noted the footage showed Quiros moving from seat to seat in an apparent bid to get "a better shot" of the woman. A decision on Quiros' guilt or innocence will be handed down on Tuesday.