Dr Md Abu Hena Mostafa Kamal (Dr Mostafa) is a general practitioner. He was working at the Leichhardt Medical and Dental Centre in 2022 when he was accused of sexual assault by a 23 years old complainant who had gone to the medical Centre for a ‘pre-employment’ medical test.
The complainant alleged that Dr Mostafa had been engaged to conduct a pre‑employment medical examination and that he used parts of that assessment as a pretext for three acts (Counts) done for his own sexual gratification. Count 1 concerned a heart examination during which he placed his stethoscope on the complainant’s nipple over her clothing. Counts 2 and 3 arose from a supposed hernia examination. Count 2 alleged that he cupped his hand over her vagina, under her pants but over her bodysuit and underwear. Count 3 alleged that he then, pushing her bodysuit and underwear to one side, digitally penetrated her vagina.
Dr Mostafa was found guilty by a jury of two counts (Count 1 and Count 2) of sexually touching the complainant without her consent, knowing she did not consent, in circumstances of aggravation contrary to s 61KD(1)(a) of the Crimes Act 1900 (NSW), and one count (Count 3) of sexual intercourse without her consent, knowing she did not consent, in circumstances of aggravation contrary to s 61J(1).
The aggravating feature for each charge was that the complainant was under his authority because he was her treating doctor.
On 29 November 2024, Dr Mostafa Kamal was sentenced to an aggregate sentence of imprisonment of 7 years and 9 months, to commence on 18 July 2024, with a non-parole period of 4 years and 3 months.
Dr Mostafa sought leave to appeal his convictions on the basis that no reasonable jury, on the evidence, could have been satisfied of his guilt beyond reasonable doubt on any count. He also sought leave to appeal the sentence on the footing that, if any conviction were quashed, he should be resentenced on the remaining counts.
Count 1 (stethoscope to nipple)
Dr Mostafa argued that it was not open to the jury find him guilty beyond reasonable doubt on count 1. He relied on the expert evidence that his conduct could be consistent with a proper medical examination and could be explained in medical terms. But the court of appeal accepted the finding by jury that Dr Mostafa Kamal’s touching of the complainant’s breast was not solely for a legitimate clinical purpose, particularly when seen in context with the conduct underpinning counts 2 and 3.
Count 2 (cupping over vagina)
The Court rejected Dr Mostafa’s argument based on the positioning of the complainant’s clothing. Dr Mostafa Kamal had argued that the complainant’s cargo pants were too tight over her waistline and he could not have pushed his hand in there. The court found the photograph of the pants did not show they were too tight to allow the conduct alleged, especially when considered alongside her testimony.
Dr Mostafa also argued that the complainant had given evidence that her pants were above her waistline when he conducted the examination. The court accepted the complainant’s evidence and found that she had told the court that the abdominal examination was carried out above the waistline of her pants, not that her pants themselves sat above her waist.
Ground 1 – count 3 (sexual intercourse)
Dr Mostafa argued that there was no DNA (of the Complainant) found on the gloves and thus it was not open to the jury to find that he digitally penetrated her. The expert evidence was unclear. The expert opined that it was possible for the DNA to be not transferred but more likely than not it should have been there.
The expert was asked to suggest reasons why [the complainant’s] DNA was not located on any of the gloves retrieved”:
“Okay. There might be maybe a few factors that can affect why we might not recover DNA. The – it – there could be – could’ve been no contact so we wouldn’t recover any of that DNA. There could’ve been contact but no transfer happened. However, I will say, this would be unexpected as the vagina is a rich source of DNA.
There could be – there could’ve been contact but since that contact, it could’ve been removed or wiped off in some way. There could’ve been contact and it wasn’t sampled correctly.
There could’ve been contact and the glove, I guess, that was used for that contact was not the one that was sampled.”
The Court held that, viewed as a whole, the evidence allowed the jury to be satisfied of guilt on count 3 beyond reasonable doubt. The absence of her DNA on the applicant’s gloves was not so compelling as to create a necessary reasonable doubt, given the strength of the complaint evidence. Nor did the CCTV footage undermine the reliability of her account.
The appeal was heard on 21 November 2025. On February 25, 2026 the Bench consisting of Mitchelmore JA, Ierace J and McNaughton J granted leave to appeal the convictions but dismissed the appeal on all grounds, and refused Dr Mostafa Kamal leave to appeal the sentence.