Count 6 - [Complainant AB]
Act of indecency without consent
On 25 October 2006, the complainant attended a fitness centre in which the accused practised as a massage therapist. The complainant was a client of Ms GC but, as she was unable to attend to the complainant, AB agreed to a massage from the accused.
The accused told AB to strip down to her underwear and lay face down on the table with a towel over her back, which she did.
The accused started to massage her and started to talk about her sex life with her partner. This made AB feel uncomfortable. The accused said words to the effect of
"You're out of your dirty thirties and into your naughty forties."
This was a reference to a conversation they had about the complainant having recently turned 40 years of age.
During the massage AB was laying face down with her arms up above her head resting on the massage table. AB felt the accused's erect penis leaning against her arm. When the accused was massaging her legs, she felt the accused's erect penis against her leg.
At some point during the massage, the accused got onto the massage table and straddled AB's legs, by putting his legs over hers. AB could feel the accused's genitals resting against her backside.
The accused asked AB to roll over and he massaged the sides of her breasts.
After the massage AB met with friends MJ and MW. AB appeared to be upset and she told MJ and MW about the massage. She later also told her partner, WU what had happened with the accused. MJ identifies the date on which she met AB from an entry in her diary for 25 October 2006.
Soon after AB went to Queensland on a holiday with WU. When she returned from the holiday, WU complained to GC. GC counselled the accused about his behaviour. The accused denied any inappropriate touching of AB.
The instances of coming into contact with the complainant's body with his genital area and the massaging of the side of her breasts is the conduct the Crown relies upon as constituting an act of indecency.
At no time did AB consent to the accused's genital area coming into contact with her body or to the accused massaging her breasts.
In the alternative, it is alleged that any 'consent' to these acts was obtained by the accused abusing his position of trust with the complainant.
Count 7 - [Complainant CB]
Act of indecency without consent
CB had received a massage from the accused twice before 31 July 2008. On 31 July 2008, she attended the accused's massage rooms which were then located at Bodywise Studio, shop 3/11 Trenerry Street, Weston. She told the accused that she was upset as a friend had committed suicide recently and that she just wanted a relaxing massage.
CB removed her clothing, except for her underpants and got on the massage table. The accused started to massage CB. During the massage the accused and CB were talking to each other. Whilst doing this he said:
"You have a great body."
This made CB feel uncomfortable. The accused continued to massage her back.
The accused got CB to turn over onto her back and he started to massage her neck. The accused moved his hands and was massaging her chest and breasts. CB froze and felt that the massage was now a sexual or erotic massage. There was no conversation between CB and the accused after she turned over onto her back.
The accused started to massage CB's legs. The accused got onto the massage table and pulled CB's legs apart. He massaged the tops of her legs and the groin area, close to her vagina but did not actually touch the genital area.
CB felt frightened and could not believe that this was happening. CB did not say anything to the accused.
Again the accused said "you have a great body."
The accused finished the massage and CB left the massage rooms.
CB phoned the police on 18 August and informed the police about the incident, however she indicated that she did not want to proceed with the matter.
CB contacted Australian Traditional Medicine Society but decided not to make an official complaint.
CB rang the accused from work and confronted him about his actions and told him, among other things, that he had inappropriately touched her.
CB confronted the accused on 20 November 2008 at his rooms in Flames Fitness, Lyneham. CB told the accused that he had touched her inappropriately, that she was annoyed because now she would need to get a new massage therapist. The accused offered CB a refund. The accused stated that touching her breasts was appropriate as part of the massage. The accused asked CB "why didn't you say no, why didn't you stop me, why did you take months to come back in and see me about it?" CB told the accused "I was vulnerable, you are the massage therapist, I was weak and you took advantage of me."
The accused started to cry and said "I am disgusted, I am despicable. I've never done this before" and "I can't believe I did it, I'm awful and unhappy with myself and work, I don't feel appreciated."
The accused offered a fully clothed massage to CB which she accepted. She provided the accused with a copy of the Code of Conduct from the Australian Tradition Medicine Society which she had previous downloaded from a website and an article regarding a South Australian naturopath who had digitally penetrated a client.
CB complained about the massage she received on 31 July 2008 to DM and MD.
The instance of massaging the complainant's breasts is the conduct the Crown relies upon as constituting an act of indecency. CB did not consent to these acts. In the alternative, it is alleged that any 'consent' to this act was obtained by the accused abusing the position of trust with the complainant.
Count 8 - [Complainant FT]
Act of indecency without consent
FT met the accused when he came into Flames Fitness and gave her a 15-minute massage.
FT attended the accused's massage room, then still located in Weston, on 15 September 2008. FT recalls that the lights were out with candles lighting the room. The accused told FT that the lights were out from a storm, but a CD was playing.
FT informed the accused that she had been experiencing pain in her elbow. She completed a form which she can recall had something to the effect of "no massaging of genitalia or the breasts of women."
The accused told FT to "strip down". FT said "I am only here for an elbow massage." The accused said
"No, no what we will do, is we will do a full body massage, get to know your body and then we will work on your elbow in further appointments."
FT agreed to the full body massage. She said "I'm not wearing any underwear" and the accused said "that's not a problem, don't worry about it."
FT removed all her clothing and got onto the massage table. Whilst she was on her stomach, the accused massaged her upper thighs and buttocks. The accused's hand made contact with FT's vagina but FT considered the contact inadvertent.
During the massage the accused said to FT that she was "gorgeous" and that she had 'a beautiful body, you must work hard on it'.
FT turned onto her back and the accused massaged her shoulders and neck. The accused started to massage the top of her pectoral muscles and said, "Excuse me" and placed his hands under the towel and massaged FT's breasts and nipples in circular motions.
When the massage ended, FT got dressed and paid for the massage. She made another appointment as she felt pressured to do so.
FT immediately rang JL and told him about the massage.
A few days later FT phoned the accused and cancelled the appointment she had made. She told the accused that it was inappropriate for him to massage her breasts and hung up the phone.
FT reported the matter to QB, the owner of Flames Fitness as he had referred her to the accused. FT also spoke to MF, JN and MB about the matter.
The instances of massaging the complainant's buttocks while she was wearing no underwear, massaging her breasts and nipples and the touching of the complainant's vagina is the conduct the Crown relies upon as constituting an act of indecency. FT did not consent to these acts. In the alternative, any 'consent' to these acts was obtained by the accused abusing the position of trust with the complainant.
Count 9 - [Complainant EA]
Act of indecency without consent
...
EA made an appointment with the accused for 16 April 2009 at 9.00am.
On 16 April 2009 EA attended the accused's rooms. She told the accused that she wanted a massage on her lower back.
The accused asked EA to undress to her underwear. EA got onto the massage table. At this point she was still wearing bike shorts. The accused said words to the effect of,
"We need to loosen up your glutes in order to do the massage for greater benefit."
The accused continued to massage EA's "glutes". The accused then said words to the effect of,
"You know, it's not really working. Do you mind if I take them off?" (indicating her bike shorts)
EA said it was fine. The accused removed EA's shorts. EA did not have any underpants on under the shorts. The accused covered one side of EA's buttocks while he massaged the other. At one point EA's backside was completed uncovered.
When the massage finished the accused left the room while EA dressed.
The accused told EA her first massage would be free as she was a trainer and could refer her clients to him. EA made another appointment on 24 April 2009.
EA later discussed the incident with her friends, DN, JH and DP.
On 24 April 2009, EA attended another appointment with the accused. The accused did not remove her underwear on this occasion. EA paid $45.00 in cash and did not recall receiving a receipt.
After these incidents EA and JH contacted Massage Standards Australia and asked whether being naked during a massage was acceptable. They were told that it was not.
The Crown case is that the consent given by the complainant to the removal of her pants and the massaging of her buttocks while naked was negated as it was caused by the accused abusing his relationship of trust with the complainant. In the alternative, consent was obtained by fraudulent misrepresentation as to the acts, namely that it was necessary to do the massage for 'greater benefit' and that it was necessary to remove her shorts to perform the massage.
Count 10 - [Complainant SI]
Act of indecency without consent
On 22 April 2009, SI attended her first appointment with the accused at his rooms in Lyneham. SI had only ever had one massage many years before 2009. SI told the accused to work on her back, shoulders and neck. SI recalls filling out a form which included a section about terminating the massage if she felt anything sexual about the massage.
The accused told SI to undress, leave her underwear, lie on the table and place a towel over her back. The accused returned to the room before SI had enough time to get on the massage table.
During the massage SI said words to the effect of,
"Don't wobble the fat bits."
The accused said words to the effect of,
'No, no, you are beautiful."
The accused lightly slapped SI on her backside.
The accused massaged SI's buttocks for some time. The accused then got SI to roll onto her back. The accused asked SI if he could work on the top section. SI said yes. The accused slipped his hands underneath the towel and massaged SI's breasts.
Towards the end of the massage, the accused shifted the towel covering SI. SI saw that her left breast and nipple were exposed.
SI said words to the effect of,
"Are you right?"
The accused pulled the towel back and giggled.
After the massage finished the accused left the room while SI dressed. She paid $75.00 in cash and received a receipt, invoice number 30 that showed the accused's name and details. SI also made another appointment for 29 April 2009.
On 29 April 2009, SI attended her second appointment with the accused. As nothing inappropriate happened during the massage on that day, SI did not say anything to the accused about the previous massage. SI paid $75.00 in cash and received a receipt, invoice number 47 that showed the accused's name and details. SI also made another appointment for 6 May 2009.
The instances of slapping the complainants [sic] buttocks and massaging the complainant's breasts are the conduct the Crown relies upon as constituting an act of indecency. The Crown case is that the consent given by the complainant to the massaging of her breasts was negated as it was caused by the accused abusing his relationship of trust with the complainant. The complainant did not consent to her buttocks being slapped.
Count 11 - [Complainant KB]
Act of indecency without consent
KB started receiving massages from the accused in late April 2009 and had 3 massages. KB had informed the accused that she wanted her sciatic nerve treated.
On 4 May 2009 KB attended the accused's rooms for a massage. The accused asked KB to get undressed and left the room. He returned quickly before KB had a chance to lie on the massage table.
The accused began to massage KB's lower back and shoulder blades. He did some "cupping" which hurt her. The accused explained the process of cupping and that it may be uncomfortable. KB had bruises from the cupping following the massage. The accused said "look at all the hickeys".
The accused asked KB to turn over, whilst he held the towel over her. The accused said "it's good to massage your breasts" and "that it would be very good for you".
KB said "Well I am a bit sensitive around there because I have got a gastric band which I have a port there and it sits right there and I don't like people touching, because it is tender sometimes."
The accused said "I will do your breasts." He started to massage her breasts and there was no towel covering her breasts at the time. The accused was rolling, rubbing and squeezing her breasts, similar to a medical examination. At the end of massaging the complainant's breasts, the accused stroked the complainant's nipple in a gliding motion with his fingers.
Whilst the accused was doing this, KB's head was very close to his groin and she noticed a bulge in his pants, which she believed to be an erection.
When the massage had finished the accused said that he wanted to stay in the room to fill out the receipt. KB got up from the massage table and dressed.
KB spoke to her friend DW about the massage.
KB did not attend her next appointment on 11 May 2009.
The instances of massaging the complainant's breasts (while placing his visibly erect penis close to the complainant's head) and the stroking of her nipple are the conduct the Crown relies upon as constituting an act of indecency. The Crown case is that the consent given by the complainant to the massaging of her breast was negated as it was caused by the accused abusing his relationship of trust with the complainant. The complainant did not consent to her nipple being stroked.
In the alternative, consent to the massaging of her breast was negated as it was obtained by a fraudulent misrepresentation as to the nature of the act, namely that it would be 'good for her'.
Count 12 - [Complainant SI]
The accused is charged with committing an act of indecency on SI without her consent knowing she was not consenting or being reckless as to whether she was consenting.
On 6 May 2009, SI attended her third appointment with the accused. The accused told SI to put on "fisherman pants" so that she would not be exposed when he manoeuvred her legs in different ways.
During the massage the accused massaged SI's achilles tendon, causing her to yell out in pain. The accused said words to the effect of,
"I like a groaner," or "I like a squealer."
The accused got SI to lie on her stomach on the floor, then he pulled SI's arms behind her so that her chest was off the floor, exposing her breasts.
After this the accused went over and sat in a chair and said words to the effect of,
"You can get up now and just have a walk around and tell me how you feel."
SI removed her arm from covering her breasts and touched her toes. The accused told SI to lie on the massage table again and he started to massage SI's back. The accused then slipped his hand under SI's stomach, untied the pull string on the pants, removed the pants and covered SI with a towel. The accused continued to massage SI's back quite roughly. SI felt her buttocks moving and said words to the effect of,
"Stop it, you're making it wobble too much."
The accused slapped SI's backside firmly and said words to the effect of,
"There's nothing wrong with that," and "It wouldn't make that sound if it wasn't firm."
The accused massaged SI's legs, then told SI to roll onto her back. The accused told SI that he was going to work on her chest and lowered the towel, exposing her breasts. The accused said words to the effect of:
"Can I give you a chest massage. You know, this area we worry too much about, in this sort of culture. Where I come from, we don't consider this any different from any part of the body."
The accused applied oil to SI's breasts and started to massage that area for approximately five minutes. When he had finished the accused went and sat on a chair while SI got up and dressed. SI arranged to pay the accused the following day.
SI later discussed the incident with her husband [I].
The instances of slapping the complainant's buttocks and massaging the complainant's breasts are the conduct the Crown relies upon as constituting an act of indecency. SI did not consent to her buttocks being slapped. The Crown case is that the consent given by the complainant to the massaging of her breasts was negated as it was caused by the accused abusing his relationship of trust with the complainant. In the alternative, the consent given to massaging the breasts was negated as it was obtained by a fraudulent misrepresentation as to the nature of the act, namely that there was nothing unusual about a massage in that area.
Counts 1-5 - [Complainant KW]
2 x sexual intercourse without consent, 3 x act of indecency without consent
On 5 May 2009 at about 1.30 pm KW attended an appointment for a complimentary massage at the accused's place of work, located at Shop 1, Colville Street, North Lyneham in the Australian Capital Territory.
KW had recently been employed as a personal trainer and the accused had offered to give her a massage so that she could understand what services he provided and could offer her clients his services in the future.
On KW's arrival at the accused's place of work, the accused asked her,
What part of your body would you like to work on?"
The complainant nominated her back and shoulders, as she played a lot of netball.
The accused told KW to "take off your pants, leave your undies on, take your bra and sports bra off." The accused left the room and KW removed her clothing except her underpants and lay face down on the massage table. The accused came back into the room and closed the door. He started to massage KW's lower back, and said words to the effect:
"Oh, you're tight, but you're such a gorgeous client."
The accused started to massage KW's "glutes" (that is, her bottom). The accused told KW that he had to lower her underwear down her buttocks. The accused continued to massage this area for about twenty minutes.
The accused told KW he would have to further lower her underwear to massage her hamstrings. He applied oil to KW and started massaging her hamstrings. At one point during the massage, the accused locked the door to the room.
The accused returned to KW, and removed her underwear. During this time, KW had a towel covering her backside.
The accused pulled KW's leg out to the side and massaged her inner thigh. While he was doing this, the accused explained the physiology of what he was doing, and named all the muscle groups. The accused moved his hands higher and higher until he was touching KW's genitals. This is the conduct the Crown relies upon as constituting an act of indecency (Count 2). KW did not consent to this touching of her genitals.
KW said to the accused words to the effect of,
"Stop. I just really want you to work on my upper back."
At one point the accused told KW that he was going to get on top of the table to get out a knot. Then the accused undid his belt and took off his pants. The accused got onto the massage table on top of KW.
The accused said words to the effect of;
"You're such a beautiful client, you're a gorgeous client. I wish all my clients were gorgeous like you."
The accused then slapped KW on her backside two or three times.
The accused was on top of KW, pushing down with his hands on her back. The accused said words to the effect of,
"I'll massage you while I fuck you."
The accused penetrated her vagina with his penis (Count 1). He was not wearing a condom. This continued for some time. During this time the accused continued to speak to KW, saying words to the effect of,
"You're gorgeous."
KW did not say anything to the accused and buried her face into the towel.
The accused rolled KW onto her back. KW kept the towel to her face so she could not see the accused. KW said words to the effect of,
"Don't cum in me because I'm, not on the pill."
The accused ejaculated on KW's stomach. KW kept her face covered with the towel. The accused massaged his semen into KW's body.
The accused then put his mouth on KW's vagina and licked KW on the clitoris and vagina. This continued for about 25 seconds (Count 3).
The accused wiped KW's stomach with a cloth, then turned her over. The accused put his pants on and said words to the effect of;
"All right, roll over. I am a bit more relaxed now. I can work on your back now."
The accused continued to massage KW's back. He then kissed KW on both buttocks (Count 4).
The accused started massaging KW's upper back and neck. The accused told KW to roll onto her back which she did. KW held a towel across her face as she was lying on her back. The accused said words to the effect of,
"You tight in your pecs."
KW said words to the effect of;
"It's more my neck."
The accused started massaging KW's breasts (Count 5). Whilst he was doing so, the accused said words to the effect of,
"Oh, you're gorgeous."
While the accused was massaging her breasts, KW opened her eyes, she moved the towel from her face and observed the clock read 2.50 pm. She said words to the effect of,
"Oh look at the time, I have to go, I have to go to an appointment."
KW got off the massage table and collected her clothes. The accused sat in the room and watched KW get changed.
The accused said words to the effect of,
"So, when can I see you next?"
KW did not know what to say, and said words to the effect of,
"I don't have any money, I haven't been paid yet."
The accused said words to the effect of,
"Well, now you know what my services are about, you can offer my service to your clients and we can work together on this."
KW left the accused's place of work. KW immediately went into the toilets at Flames Fitness and then left the building. KW sent an email to her friend Mr FI stating "Something really bad has just happened."
KW returned to her home at about 3.30 pm and showered. At about 4.30 pm Mr FI arrived and KW told him what had happened. KW shortly after attended Belconnen Police Station and made a report.
KW participated in a forensic medical examination by Dr Vanita Parekh and her clothes were seized for forensic examination. Dr Parekh reported that KW sustained injuries to her genitals that were consistent with penetration. Semen consistent with the DNA profile of the accused was detected on the singlet worn by KW after sexual intercourse had occurred.
On 6 May 2009 the accused attended the Belconnen Police Station. After the accused was informed of the allegation, he said words to the following effect:
It was consensual.
She wanted it.
She was saying pleasure me.
She was saying stick it to me.
She was horny.
She was moaning and groaning.
She pulled her own undies off.
I kept asking her if she was OK with it.
It was the first time I have ever done this.
The accused declined to participate in a Taped Record of Interview. The accused was placed under arrest. The accused consented to a forensic procedure.
On 8 May 2009 police executed a search warrant at the accused's home address, located at 93 Jabbanunngga Avenue, Ngunnawal in the Australian Capital Territory. A receipt book for the accused's business commencing at receipt 66 was located in the rubbish bin.
At no time did KW consent to sexual intercourse with the accused or to the acts of indecency committed by the accused.
In the alternative, any 'consent' to the acts of sexual intercourse and acts of indecency were obtained by the accused abusing the position of trust with the complainant.