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[2025] QCA 245
appellant. Appeal allowed. The guilty verdicts on each count were set aside, and a new trial was ordered.
No linked legislation citations have been extracted yet.
The Court of Appeal set aside Shan He’s two sexual assault convictions because the jury may have used an earlier, less clearly described massage incident to infer that he had sexual interest in the complainant. The prosecutor argued that He had tested her reaction during that earlier massage before going further during the charged massage. The trial judge repeated that argument when summarising the parties’ cases but did not tell the jury that the earlier incident was not evidence of sexual interest. Because sexual interest was important to deciding whether the charged touching was indecent, the Court could not rule out that the omission affected the verdicts. It ordered a new trial.
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2,259 words · generated 07/10/2026
R v He [2025] QCA 245 was an appeal against convictions in the District Court of Queensland. The appellant, Shan He, was a massage therapist who used the name “Tony” at work. The charges related to a massage he gave the complainant on 6 June 2021. The prosecution alleged that during the massage he digitally penetrated her vulva without consent, charged as rape, and touched her breasts without consent, charged as sexual assault. The jury acquitted him of rape but convicted him of the alternative sexual assault on count 1 and of the sexual assault on count 2 ([2], [7]–[9]).
The appeal did not turn on the Court of Appeal deciding what happened during either massage. The complainant said the appellant touched inside her labia and later massaged her breasts on 6 June; the appellant denied touching her genitals or breasts ([15]–[16], [35]–[37]). The question for the appeal was whether the jury had been properly directed about the use it could make of evidence relating to a massage on 30 May.
The complainant described the earlier massage as different from usual. She said the appellant went high up her leg and close to, or around, the edge of her underwear. At the time, she thought the contact could have been a mistake. At trial, she accepted that she had not been touched on her genitals or breasts on that occasion ([13], [20]–[21]). The prosecutor nevertheless argued that the earlier event could be understood as the appellant testing how the complainant would react, before going further during the later massage ([45]–[46]).
The judge summarised the prosecution’s position to the jury, including that the appellant had massaged near the complainant’s genital areas “to see what the complainant would do” and, when she did not react, “he went further” on 6 June ([49]). The judge did not add a direction explaining that the earlier event was not evidence of sexual interest. The Court of Appeal held that this omission created a real risk of impermissible reasoning ([50]–[53]).
The Court allowed the appeal, set aside both guilty verdicts and ordered a new trial ([55]). It did not determine the appellant’s guilt or make findings about the truth of the competing accounts.
A significant part of the trial judge’s direction concerned the sexual character of the alleged touching. The judge told the jury that they could find the conduct indecent only if satisfied beyond reasonable doubt that it had a sexual connotation. The direction framed that question in terms of whether the touching was motivated by a desire for sexual experience, pleasure or satisfaction ([51]).
Against that direction, the prosecutor’s “testing the waters” account created a particular reasoning risk. If jurors accepted the theory that the appellant deliberately moved near the complainant’s underwear on 30 May, observed that she did not object, and then went further on 6 June, they might treat the earlier incident as evidence that he already had sexual interest. That inference could then support a finding that the touching charged on 6 June was motivated by sexual pleasure or satisfaction. The Court described that as impermissible reasoning, not as a finding about what actually occurred ([52]–[53]).
The problem was not merely that the jury heard evidence about an earlier event. The Court focused on the way that event was used in argument and then repeated in the summing up. The prosecutor’s submission put forward a progression between the two massages. When the judge summarised that submission without explaining the limit on the earlier evidence, the jury could have understood the earlier incident as supporting the charged conduct by demonstrating sexual interest ([49]–[52]).
The Court also noted that the prosecutor had not originally led the earlier-event evidence as evidence of sexual interest. The respondent conceded on appeal that it was not admissible for that purpose and that, at best, it was relevant to the complainant’s credibility ([41]). That context reinforced why the jury needed a clear explanation of the permissible use of the evidence once the prosecutor made the “testing” argument.
The fact that defence counsel did not seek a further direction did not dispose of the issue. The Court accepted that counsel’s conduct contributed to the legal error, but stated that the trial judge remained responsible for being astute to secure a fair trial according to law ([42], [53]). This point was relevant to the Court’s conclusion that the omission could amount to legal error even without a request from counsel.
Finally, the Court considered whether the error could be treated as immaterial. It could not. Whether the touching had the required sexual connotation was central to the jury’s decision. The Court therefore could not say that the error would “realistically not have affected” the jury’s reasoning ([52], [54]). It allowed the appeal and ordered a new trial rather than making a finding about the evidence itself.
The judgment’s account of the law is focused. It does not set out a broad survey of propensity evidence or restate a comprehensive test for admissibility. Instead, it applies two recent High Court decisions identified in the judgment: MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, and Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20.
In relation to MDP, the Court referred to paragraph [3] for the proposition that the error was a wrong response to a question of law having legal effect at trial. It also cited paragraph [109] for the trial judge’s responsibility to secure a fair trial according to law ([53] and footnotes 9–10). The Court used MDP to support its characterisation of the failure to direct the jury as legal error and to explain why the judge’s responsibility remained relevant even though counsel’s conduct contributed to the problem.
In relation to Brawn, the Court cited paragraph [43] for the question whether it could realistically be said that the error had not affected the jury’s reasoning ([54] and footnote 11). Applying that formulation, the Court considered the centrality of sexual interest to the verdicts and concluded that it could not make that assessment in the appellant’s favour.
The “before” position available from this judgment is therefore the trial as conducted: the jury heard the earlier-massage evidence, heard the prosecutor’s progression theory and received a summary of that theory, but did not receive a specific direction limiting the evidence’s use. The “after” consequence was that the convictions were set aside and a new trial ordered. The judgment does not claim to change the general law of propensity evidence; it applies the cited authorities to the particular way the evidence was presented and left with the jury.
The judgment’s reference to the earlier evidence being, at best, relevant to credibility is important but should be read in context. The Court records the respondent’s concession on appeal; it does not provide a full ruling on every possible basis for admitting such evidence in other cases ([41]). Nor does it set out the details of the High Court decisions beyond the specific propositions for which it cites them.
At [49], the trial judge summarised the prosecution’s contention that the appellant massaged near the complainant’s genital areas on 30 May “to see what the complainant would do” and went further on 6 June. In plain English, the jury was reminded of the prosecution’s theory that the earlier and later events formed a deliberate progression. The Court of Appeal’s concern was that the summary did not also explain the limits on using the earlier event.
At [51], the trial judge directed that the touching had to have a sexual connotation, meaning that it was motivated by a desire for sexual experience, pleasure or satisfaction. In plain English, the jury could not find the relevant indecent character merely because touching occurred or because the complainant thought it improper. It had to decide whether the touching had the sexual quality described in the direction.
At [52], Boddice JA said there was a “real risk” that the jury used the earlier evidence to reason that the appellant had shown sexual interest during the earlier massage. That is the central concern in the judgment. The earlier incident could not simply be used to infer a sexual disposition that made the charged conduct more likely to have been sexually motivated.
At [53], the Court said that such reasoning would be erroneous and amounted to a wrong response to a question of law with legal effect at trial. The Court also said that, although counsel’s conduct contributed to the error, the judge had a responsibility to secure a fair trial according to law. In plain English, the absence of a defence request did not remove the judge’s responsibility to address a serious risk arising from the way the case was put.
At [54], the Court said it could not be said that the error would “realistically not have affected” the jury’s reasoning. In plain English, because the sexual character of the alleged touching was central, the Court could not treat the missing direction as harmless. The judgment does not say that the jury necessarily relied on the improper reasoning; it says the risk and its potential importance prevented the error being dismissed as immaterial.
The judgment is most directly relevant to a trial where evidence about earlier conduct is put before a jury for a limited purpose, but a party’s argument invites the jury to use it as evidence of sexual interest or propensity. In He, the earlier event was a massage one week before the charged massage, involving the same appellant and complainant. The prosecutor argued that it was a preliminary “test” of the complainant’s response and that the appellant progressed further during the later event ([45]–[46]).
The risk was heightened by the way the disputed issue at trial related to the direction on indecency. The jury had to decide whether the alleged touching on 6 June had a sexual connotation. The earlier-event theory supplied a possible route to infer the appellant’s motivation. Where an earlier event is used in that way, He indicates the importance of a clear direction explaining whether, and for what purpose, the jury may use that evidence.
The decision does not establish that evidence of an earlier event is always inadmissible, or that a particular direction must be given whenever a prior event is mentioned. The judgment describes the evidence as, at best, relevant to credibility, records the respondent’s concession that it was not admissible as evidence of sexual interest, and decides the appeal on the risk created in this trial ([41], [52]). Its reasoning therefore turns on the particular evidence, the prosecutor’s submission, the judge’s summary, and the centrality of sexual interest to the verdict.
For lawyers and trial practitioners, the judgment identifies a potential issue where a closing address links an earlier incident to a charged allegation in a way that suggests testing, escalation or a developing sexual purpose. It also indicates that simply summarising the rival arguments may not resolve the problem if doing so repeats a potentially impermissible theory without clarifying the limits on the evidence. These are observations about the reasoning in He, not a substitute for considering the applicable evidence rules and authorities in another case.
The supplied judgment contains no later judicial treatment of R v He. It was delivered on 5 December 2025, and the text provided does not identify any subsequent cases applying, distinguishing or otherwise considering it. No conclusion about later treatment can be drawn from this source alone.
Within He, the Court applied MDP v The King and Brawn v The King. Those cases are authorities considered by the Court in reaching its conclusions; they are not later treatment of He. The judgment relies on MDP for the characterisation of legal error and the trial judge’s responsibility, and on Brawn for assessing whether the error could realistically have affected the jury’s reasoning ([53]–[54]).
The judgment does not decide how the earlier-massage evidence might have been handled if it had been clearly confined to credibility, or whether it would have been admissible on some other basis in different circumstances. The appeal proceeded on the respondent’s concession that it was not evidence of sexual interest and was, at best, relevant to credibility ([41]). The Court did not give a general ruling on the admissibility of prior conduct evidence.
Nor does the judgment prescribe exact words for a jury direction. It identifies the missing point: the jury should have been directed that, contrary to the prosecutor’s contention, the earlier event was not evidence of sexual interest ([50]–[52]). The decision does not formulate a standard direction for all cases involving disputed prior conduct.
The Court also did not decide whether a different summing-up, a different prosecution address, or another evidentiary record would have produced the same result. Its conclusion rested on the combination of the prosecutor’s “testing the waters” argument, the judge’s summary of that argument without a limiting direction, and the central importance of sexual interest to the verdicts ([49]–[54]).
Finally, the judgment ordered a new trial but did not determine the appellant’s guilt. The evidence at a future trial, the directions given there, and any resulting verdict are not addressed in this decision. This analysis is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on it, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v He [2025] QCA 245
PARTIES: R / v / HE, Shan / (appellant)
FILE NO/S: CA No 92 of 2025 / DC No 1013 of 2024
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 3 April 2025 (McDonnell DCJ)
DELIVERED ON: 5 December 2025
DELIVERED AT: Brisbane
HEARING DATE: 12 November 2025
JUDGES: Mullins P and Boddice and Doyle JJA
ORDERS: **1.****Appeal allowed.****2.****Verdicts of guilty on each count set aside.****3.**New trial ordered.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where a jury found the appellant not guilty of rape, but guilty of its alternative, sexual assault – where the jury also found the appellant guilty of a count of sexual assault – where both counts were alleged to have been committed on the same day, in the course of a massage provided by the appellant, as part of a professional service for a fee – where, at trial, it was not in dispute that the appellant had performed a massage on the complainant – where the complainant had been attending the same massage practice for over seven years – whether there was a wrong decision on a question of law, occasioned by the trial judge’s failure “to direct the jury as to the use of discreditable conduct evidence and the need to avoid propensity reasoning” / Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, applied / MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, applied
COUNSEL: A C Braithwaite for the appellant M A Green for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: I agree with Boddice JA.
BODDICE JA: On 3 April 2025, a jury found the appellant not guilty of rape, but guilty of its alternative, sexual assault. The jury also found the appellant guilty of a count of sexual assault.
On 4 April 2025, the appellant was sentenced to imprisonment for 10 months on each count, suspended after serving a period of 5 months’ imprisonment, for an operational period of 12 months. Those sentences were ordered to be served concurrently.
The appellant appeals his convictions on the ground that there was a wrong decision on a question of law, occasioned by the trial judge’s failure “to direct the jury as to the use of discreditable conduct evidence and the need to avoid propensity reasoning, or that they should have been directed to ignore the prosecutor’s submission to the effect, that on 30 May 2021 the appellant massaged near the complainant’s genital areas to see what the complainant would do, and that when she did not react, he went further on 6 June 2021”.
Indictment
The indictment contained two counts involving one female complainant.
Both counts were alleged to have been committed on the same day, in the course of a massage provided by the appellant, as part of a professional service for a fee.
The Crown case was that on 6 June 2021, the appellant raped the complainant by digitally penetrating the complainant’s vulva, without her consent, during the course of a massage (count 1). Further, that the appellant unlawfully and indecently assaulted the complainant by touching her breasts without her consent (count 2).
In respect of count 1, the jury were directed that if they were not satisfied that penetration of the vulva to any extent occurred, but were satisfied that the appellant indecently assaulted the complainant by touching her genital area without her consent, they could find the appellant guilty of sexual assault only (alternative).
At trial, it was not in dispute that the appellant had performed a massage on the complainant on 6 June 2021. At issue was whether he had penetrated the complainant’s vulva during the course of that massage, or otherwise touched her vagina and breasts, without her consent.
At the conclusion of the Crown case, the appellant elected to give and call evidence.
Evidence
Complainant
In 2021, the complainant was living in Brisbane, working as a social worker. Her job was stressful and part of her self-care was to have a regular massage. The complainant had been attending the same massage practice for over seven years. During that time, she had had various massage therapists. For approximately eight to 12 months prior to 6 June 2021, she had received massages from the appellant. The complainant knew him as Tony. She described him as a good massage therapist. She would request him when making an appointment. She had had around eight massages with him prior to 6 June 2021.
The complainant would usually have a 90 minute massage, during which the appellant would massage the back of her body before leaving the room so that she could turn over and he would return to finish the massage. During a massage, the complainant would be wearing underpants. Her body would be otherwise covered by towels. Generally, the appellant would ask her at the commencement of the massage, where she had concerns or aches and pains.
On 30 May 2021, the complainant had a massage performed by the appellant. She described that massage as different. The appellant went “really far up my leg and, kind of, touching around the rim, I guess, of my underpants”.1 The complainant said she was lying face down and the appellant was massaging her legs and in particular, the back of her thighs. The complainant did not say anything to the appellant. She thought it was just a mistake and that with the oil, things had become a bit slippery.
On 6 June 2021, the complainant attended another 90 minute massage, performed by the appellant. She had made an appointment, expressly requesting the appellant. On this occasion, she did not have any particular conversation with the appellant prior to the commencement of the massage. She entered the massage room, took off her clothing down to her underpants and set up on the massage table with a towel covering her body. The massage commenced with the complainant lying face down.
The complainant described everything as going as it usually did until the appellant got to her legs. Normally, the appellant would bend her leg sideways so he did not have to do the front of the leg when she turned over. He would massage the whole of her leg, getting to the front of the thighs in that way. The complainant said on this occasion, when he did her first leg, the appellant’s fingers actually went underneath her underpants and touched her inside her labia. The appellant continued to rub her leg, going back inside her underpants, before coming back up her leg and going into her underpants again. She estimated he touched inside her labia around 10 to 20 times, over a period of about five minutes. When he went inside her labia, he touched her clitoris. She did not consent to any of this touching. The complainant said when the appellant changed legs, it continued to happen.
Preliminary complaint
The complainant’s husband said that on an occasion in June 2021, he observed that the complainant was visibly shaken and upset. He asked her how her massage went and she told him that she was touched inappropriately by the masser. She did not go into any other detail. He thought that conversation occurred the day after he was working night shift, after he returned home from work at about 9.00 am.
In cross-examination, the complainant’s husband agreed that that conversation related to an incident that she said had occurred the previous day. That was the only incident of concern that the two of them had ever discussed relating to massages.
The complainant’s sister gave evidence that in June 2021, the complainant said she had had a massage and that it was weird. It was a quick conversation. A few days later, the complainant discussed what had happened to her. The complainant said the masseur put his fingers inside her underpants and was touching her and that after she had turned over, he removed the towel, so she was naked on top and touched her breasts. The complainant said the masseur was Tony.
The police officer working at the complainant’s local police station on 12 June 2021, said that at about 11.04 am the complainant came to the front counter and said that she wanted to report a sexual assault matter. The complainant told the police officer that on 6 June 2021, she had attended the massage practice that she had attended a number of times previously, where she saw a male masseur by the name of Tony. She had sought Tony for the massage. During the massage, he had used slow, sweeping movements between her legs which resulted in him touching her vagina and clitoris. The complainant said it was between 20 or 30 times that these actions had happened. He had also touched her breasts a number of times. The massage lasted for approximately two hours, whereas previous ones had been for about 90 minutes. The police officer said she contacted the investigating detectives. Those officers advised that they would be in touch with the complainant.
Admissions
A number of formal admissions were made, including that on 26 October 2021, the appellant voluntarily participated in an interview with police, during which interview the appellant told police he used the name “Tony” while at work; that he worked at the massage practice for a period of approximately four and a-half years; that he recalled massaging the complainant, but did not specifically recall the day of 6 June 2021; and that he denied allegations of touching the complainant’s breasts or vagina.
It was also admitted that that interview had been recorded, but that the file had since been corrupted and could not be played.
Appellant
The appellant said he was born in China and moved to Australia in 2011. He obtained qualifications to practice as a massage therapist in Australia. In October 2019, he commenced working as a massage therapist at the massage practice. Prior to that he had worked as a massage therapist in other places. He had massaged a lot of clients, definitely more than 1000. As a masseuse, he used the name “Tony”, as his Chinese name was difficult for clients to remember. The complainant had been a regular client for around a year prior to June 2021. She had come in about eight or 10 times. She would obtain a remedial oil massage which cost around $100. He was specifically requested by the complainant to perform her massages.
The appellant said different oils could be used in massages. It would be discussed with the client in advance of the massage. The practice also offered a hot stone or hot rock massage. Those massages usually did not go beyond 20 minutes. A client could choose to have multiple types of massages in the same session. In that event, there would be a 90 minute remedial oil massage and a 20 minute hot stone massage, at a cost of $150. The practice had a loyalty card program. A client would receive a stamp after each visit. After collecting five stamps, the practice would give the client a $5 cash voucher. Those vouchers could be accumulated if not used.
The appellant said that on 6 June 2021, he was working with four other massage therapists. He did not have a specific recollection of the massages performed that day, but records completed on the day of the massage recorded that the complainant had a massage from 2.35 pm to 4.25 pm. She received a 90 minute remedial massage and a 20 minute hot stone massage. The complainant paid $95 by bank card and used a voucher for the remaining sum of $55. The receipt recorded the bank card payment at 4.30 pm. The appellant denied ever touching or rubbing the complainant’s vagina or breasts during that massage.
In cross-examination, the appellant said that the records were completed after each massage. At the end of the day, the records were handed to his boss. The appellant was very sure that the entry related to the complainant. He denied that he altered the records to explain that the massage had gone longer, because he was doing things “for your own sexual interest”.3 The complainant asked to extend her massage to 110 minutes. He agreed that based on the information provided by the complainant, she booked for 90 minutes. He denied that there was no hot stone massage. He agreed that in the massage areas, there were privacy curtains and no cameras. Whatever happened in that area between the therapist and the client was private.
The appellant said he never massaged a client’s breasts or genitals. He would do a breast massage if a client needed it, because they had undergone an operation and there were visible lumps on the breast. That would not include the nipples. He denied deliberately moving his hands up and massaging along the complainant’s underwear line. He did not touch inside her vulva. He did not massage her breasts. He definitely did not do those things for personal sexual enjoyment. He did not use any new oil, particularly for the complainant. There were routine types of oils.
Other
The appellant’s employer said he was responsible for the people working there, as well as payment and document storage. His responsibilities included checking the everyday payments made by customers. He would do so every day. Payments would be made by EFTPOS, cash and vouchers. He would check that the voucher was correct. He would store the documentation in his home. The documentation produced for 6 June 2021, would have been reviewed by him on that day.
In cross-examination, the manager accepted that vouchers are given out by way of a loyalty card. He agreed his records depended on the massage therapist correctly recording times and what they did.
Consideration
The appellant’s ground of appeal centres on the use of the evidence that had been led by the prosecutor as to what had occurred in the massage the week prior to events the subject of each count. The respondent concedes that that evidence was not admissible as evidence of sexual interest. At best, it was evidence relevant to the complainant’s credibility. The appellant submits that although the evidence was not led as evidence of sexual interest and the prosecutor had initially submitted that it would be at most discreditable conduct and may not even be that, the prosecutor did address the jury about that evidence, in a way which invited the jury to reason that it was evidence of sexual interest.
The appellant further submits that although defence counsel sought no further directions, it was incumbent on the trial judge to disavow the jury of any such reasoning. The failure to do so gave rise to a miscarriage of justice.
In order to understand the appellant’s submission, it is necessary to refer to aspects of the closing addresses and the summing up.
As evidence was called, defence counsel addressed first. In that address, defence counsel foreshadowed a prosecution argument that the events at the earlier massage were about “testing the waters”. Defence counsel submitted that there would be no substance in such an argument, emphasising the inconsistency in the complainant’s allegation that the appellant had touched her underwear line on that occasion. Defence counsel submitted that the complainant had placed a sinister complexion on that particular massage, and that the jury ought to view her evidence as to events on 6 June 2021, in that light.
The prosecutor dealt with the earlier massage, in address, in the following way:
“So it’s difficult to say what happened on the 30th. My learned friend actually said of the 30th – the 30th of May visit – that she said she was prepared to place some more sinister – that was the quote, maybe motive or allegation. And that’s just not right. She actually said to you it could have been an accident. She wasn’t sure if he had done it deliberately. She gave him the benefit of the doubt.
So if that was what was before you, you just wouldn’t know. Maybe the touching there was incidental, accidental. She herself didn’t know. You know now that it wasn’t because of what happened in the next session.”4
“The Crown’s argument is inherently plausible. Because he didn’t just do this out of the blue. There’s something that happens on the 30th of May where he goes near or on her underwear line to test to see how she would react. No reaction. Okay.
And, of course, perfectly, if she said, ‘Oh, what was that?’ ‘Oh, I’m sorry, it was an accident.’ And she herself said that could have been an accident. Then the next time, doing these motions, the circular motions, and then goes under the underwear line.
Nothing happens. You know nothing happens. She says she didn’t react. So she doesn’t react. He does it again. Bear in mind, the first time again, same explanation, it could have just been an accident. So he finds he’s able to put his hand in her vagina and so the underpants – not inside the vagina cavity, inside her underpants – and he’s able to do that and he’s not getting any reaction. So he’s testing the water on 30th of May and then just crosses the line the first time, another time. Nothing’s happening. So he does – it’s perfectly plausible – and, I mean, the alternative is to think she’s making this up. It’s a gradual progression where he’s testing the waters, which you wouldn’t accept.”5
Consistent with the submissions of counsel at trial, the trial judge did not give the jury a specific direction as to what use was to be made of the evidence of the earlier massage. However, the trial judge did refer to that evidence when summarising the rival contentions.
The trial judge reminded the jury that the defence contention was that they would not be satisfied about the complainant’s evidence “about the circumstances of the massage on the 30th of May” and that defence submitted that the jury would accept “that there is an inherent likelihood that the complainant made no effort to stop the alleged offending, particularly given that she decided prior to the massage to confront the defendant if he made her uncomfortable in any way”.6
The trial judge then summarised the prosecutor’s contentions on this evidence:
“They say that you would accept that the complainant’s account was a believable one; that she firmly rejected the suggestion that she was making things up; that you would accept that on the 30th of May, the defendant massaged near the complainant’s genital areas to see what the complainant would do, and that when she did not react, he went further on the 6th of June.”7
Whilst those references were summaries of the rival contentions, the trial judge’s repetition of those contentions, without directing the jury that the complainant’s evidence as to the events of the earlier massage was not evidence of sexual interest, assumed a particular significance.
The trial judge had directed the jury, properly, as to the need for any touching to have a sexual connotation:
“I direct you that it is only if you accept beyond reasonable doubt that there was a sexual connotation to the touching, that is, that the charged touching was motivated by a desire held by the defendant to gain some form of sexual experience, pleasure or satisfaction that you would find that the conduct was indecent. What the complainant thought of the conduct is not the point. It is motive or the reason for the defendant touching the complainant in the manner that he did, as you find it to be, which is importance in deciding if there is a sexual connotation to the conduct.”8
Without the trial judge specifically directing the jury that contrary to the prosecutor’s contentions, events at the earlier massage were not evidence of sexual interest, there was a real risk the jury impermissibly used that evidence to reason that the appellant had shown sexual interest during the earlier massage such that it was open to conclude that the touching on 6 June 2021 was motivated by sexual pleasure or satisfaction.
Such reasoning would be erroneous. That error amounted to a wrong response to a question of law that has a legal effect at the appellant’s trial.9 Whilst the conduct of counsel contributed to the legal error, the trial judge’s responsibility was to “be astute to secure … a fair trial according to law”.10
Having regard to the central importance of the issue of sexual interest to the determination of the appellant’s guilt of the offences, it cannot be said that the error would “realistically not have affected the reasoning of the jury” to the verdicts of guilty that were returned.11
Order
Appeal allowed.
Verdicts of guilty on each count set aside.
New trial ordered.
R
He [2025] QCA 245
(2025) 99 ALJR 872
(2025) 99 ALJR 969
Appeal allowed. The guilty verdicts on each count were set aside, and a new trial was ordered.
When the appellant finished massaging her legs, the appellant left the room so that she could turn over. When he came back in, he massaged her neck, shoulders and head. When he came to her chest, the complainant said he put his hands underneath the towel and massaged her breasts. It was circular movements first off and then the circles got smaller, concentrating on her nipples. He was using oil. He touched her breasts with both hands for approximately five minutes. He had never massaged her chest in that way before. She did not consent to him touching her breasts.
When the massage was finished, the complainant got dressed. The appellant tried to speak to her. When the appellant answered his phone, she left. She did not raise with him at that time any concerns. The complainant did not speak to the appellant at all during the massage. The complainant said she did not normally talk during the massage.
The complainant said she told her husband the following morning. He was a shift worker. He was asleep when she returned home from the massage. She told him she had been sexually abused by the appellant, but did not give him details. The next person she told was her sister. That was a couple of days later, during the week. She thought she gave her sister a little more detail than she did to her husband. The next person she told was a police officer, at the local police station.
In cross-examination, the complainant confirmed: that as a long-term client she received loyalty cards as a form of price reduction voucher; that the premises had small cubicles in a row, that it was easy to communicate with someone in a different cubicle without needing to raise your voice, that you could hear conversations of other customers in the adjoining cubicles; that she normally attended when other people were present at the practice; that the massage style she liked involved rubbing her inner thigh, which was something she had specifically requested when first seeing the appellant; and that the appellant would give her privacy by leaving the room before she turned over to continue the massage.
The complainant accepted that the massage she received on 30 May 2021, involved the same style of rubbing high up on her inner thighs. The complainant accepted that when she gave a statement to police, on 23 September 2021, she said the appellant “got very close to my underwear line. He was probably touching my underwear line”.2 She accepted that was speculation and as far as she could take it and the true position may have been that he did not touch her underwear line. The complainant accepted that the appellant did not touch her genitalia in any way on that occasion. He also did not touch her breasts on that occasion.
The complainant agreed that whilst that massage involved the appellant getting a lot closer to her genitalia than he had done before, the complainant thought at the time it might have been a slip. The complainant agreed that when she spoke to her husband the following day, she said she thought the massage therapist had gone a little too close to her genitalia and that he had made her feel uncomfortable. She agreed that the experience was enough to cause her to think that if he did it again, she would say something. She accepted that she considered herself to be a vocal and upfront person. The complainant also accepted that that massage was not so unusual that she was not prepared to return for a further massage with the appellant.
The complainant said that on 6 June 2021, the appellant spoke to her about using a different type of oil for her massage. The complainant said she also would have paid for the massage before its commencement, as you always paid prior to going into the room. The complainant accepted that this massage initially proceeded as it ordinarily did. However, when the appellant massaged her inner thigh, he touched her genital area in the course of using a sweeping motion. The appellant would come up under her underpants, put his fingers inside her labia and then go back down her leg. It was uncomfortable when his hands went under her underwear. The appellant adopted the same procedure with her second leg. There were between 20 and 40 occasions that the appellant’s hands went beyond her underwear line. The appellant touched and rubbed her breasts for a couple of minutes. He used his hands underneath the towel.
The complainant accepted that she did not say anything to the appellant during the massage. She did not ask him to stop or yell out to anyone else for help. She did not seek assistance from anyone when the appellant left the room to allow her to turn over, before continuing the massage. She did not make any effort to leave the cubicle at that time. The complainant said she was in complete shock. She did not accept that she had engaged in a conversation with the appellant after the massage. The complainant said she answered his questions. The complainant did not accept she had a hot stone massage as well as the remedial massage.
The complainant accepted that she went straight home that afternoon. She arrived home well before 5.00 pm, having left the practice at about 4.30 pm. She agreed she made no effort to contact police on that day, or to tell her husband. The complainant said her husband still did not know the details of exactly what happened, as she never discussed those details with him. She accepted she did not speak with any other family member or friend that afternoon.
The complainant accepted that she had a good relationship with her sister, that she knew that her sister sometimes attended the same massage practice, and that she did not tell her sister about her experience until about a week later. The complainant said she knew her sister would not be having a massage during the next couple of days as she always had massages on weekends. The complainant accepted that she had been working in the domestic violence field for most of her social work career. In those roles, it was incumbent on her to act as an advocate for her clients. Through those experiences, she had gained some experience accompanying clients to domestic violence court. The complainant agreed that although she had that knowledge, she did not attend a police station for six days.
The complainant said when she went to the police station, there were no detectives available for her to make her statement. She just made a report on that day. The complainant did not follow up with police. She did not believe it was her job to do so. The complainant had been told that she would be contacted by them. It was not until 23 September 2021, that she provided a sworn statement, after receiving a call from a detective. At the time of that call, she was on holidays. Arrangements were made for a sworn statement to be provided upon her return.
In re-examination, the appellant said that clients would normally book for one hour or 90 minutes. Rarely would they book for 110 minutes. He could not remember whether the complainant asked for 90 minutes. He also could not specifically remember her asking for it to be extended, but said she definitely spent 110 minutes on a massage that day, based on the records.