He said that he did not leave immediately because the appellant "was supposed to work on my shoulder".
26 The appellant's account differed more significantly from that of C2. He said that he asked C2 only to take his shirt off, but C2 undressed completely. When he began to massage C2's shoulder he saw that C2 was getting an erection. He removed the towel he had placed over C2 and masturbated him to ejaculation. Nothing was said during this time. The appellant denied taking C2's penis in his mouth. The appellant thought that C2 was not there for a shoulder massage, but for a sexual encounter.
27 As to each of the complainants, the appellant's evidence was to the effect that he believed the complainant was consenting. In cross-examination he agreed that he massaged C1 "with a view to having sexual contact with him", and that he "set out to do that as soon as [C1] got into [the appellant's] practice". He agreed that he set out to do the same "when [C2] got onto the table", and that when C2 had no clothes on he thought "I'm in here".
28 The cross-examination included -
"Q. Is it the case for you, Mr Porteus, that if he squeals then you let him go?
A. Yes.
Q. But you don't in these instances, do you. There's no objection, they didn't squeal so you went to the next stage. That's what you did , wasn't it?
A. Yes.
Q. You decided to try your luck?
A. That's correct.
Q. In both cases?
A. Yes."
29 The cross-examination also included -
"Q. You didn't care whether they wanted it or not. That's right, isn't it?
A. I did care whether they wanted it or not, yes.
Q. I suggest that your professionalism is nothing more than a cover to allow you to touch these two men in a sexual way. What do you say about that?
A. That's incorrect.
Q. That's what's happened though in fact though, hasn't it?
A. On these two occasions, yes.
Q. I'll ask you again. I suggest that your alleged professionalism was nothing more than a cover up to allow you to touch [C2] and [C1] in a sexual way. What do you say about that?
A. [C1] and [C2], yes."
30 When asked about his evidence of "signals" from the complainants, the appellant said that C1 did not object to his scrotum being touched or to his buttocks being parted and splayed his legs open when his penis was being sucked, and as to C2 that "the man had an erection".
31 The sexual intercourse for the purposes of s 61I was the taking of the complainants' penises into the appellant's mouth. It was not the earlier touchings or masturbation. The appellant's knowledge of lack of consent (including recklessness) must be assessed as at the times he took the complainants' penises into his mouth.
32 Whether the jury could be satisfied beyond reasonable doubt that the appellant knew that the complainants were not consenting should, where there is conflict, be determined on the evidence of the complainants rather than that of the appellant. The jury were entitled to disbelieve the appellant's account of the encounters, and certainly disbelieved the appellant so far as he said that he did not take C2's penis into his mouth, although disbelief of the appellant's evidence to the effect that he believed the complainants were consenting to sexual intercourse does not establish that the appellant knew that they were not consenting (see for example Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 684, 694; Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81 at 87; R v Cooper [2002] NSWCCA 428 at [24]). Acceptance of the complainants' evidence was entirely open to the jury, and no submission to the contrary was maintained.
33 That is of some significance. The appellant submitted that there was no demonstration of non-consent, that there were "messages", "signs" or "signals" which, albeit incorrect, precluded satisfaction beyond reasonable doubt that he did not know that the complainants were not consenting. The signals on which he relied included things happening after the sexual intercourse took place, which can not be taken into account. If the source is the evidence of the complainants, the available actions or failures to act prior to the times the appellant took the complainants' penises into his mouth, seen also in the light of the continuation of the sexual intercourse, are rather altered from the available actions or failures to act in the appellant's evidence.
34 In the case of C1, he lay naked on the table, but that was because the appellant told him to take his clothes off. There was brushing of C1's scrotum and, by the stretching of his legs, exposure of his genitals, but if the appellant's evidence is not accepted there was no more and no question of stroking the penis, masturbating, and turning to the testicles before the appellant took C1's penis in his mouth. On C1's account, there was a stark sucking of his penis after acts (touching the scrotum, stretching the legs) which were not seen by him as inconsistent with appropriate massage.
35 In the case of C2, he also lay naked on the table because the appellant told him to take his clothes off. There was touching of C2's penis, and whether or not the appellant could have heard C2 say "Ah" C2 shook his head. The appellant masturbated C2's penis until he got an erection. On C2's account, the appellant put his mouth on his penis after acts plainly inconsistent with massage of the shoulder, but after the shake of his head (C2's account could be more favourable to the appellant on knowledge of consent than the appellant's own account, which offered as signals only C2's nakedness and that he had an erection).
36 The jury had the advantage of seeing and hearing each of C1, C2 and the appellant give evidence. This must have been of assistance in deciding what the complainants' actions or failures to act conveyed to the appellant and whether at the times the appellant took their penises into his mouth there remained in his mind the possibility (at the least) that they were not consenting which he then disregarded. An illustration found in the transcript of addresses is that C2 was recognised as an unsophisticated man, which could well affect the jury's conclusions on these matters. Although I have not detailed other matters in the evidence going to the consent of the complainants, the appellant submitted that what each of C1 and C2 did after the sexual intercourse took place, primarily material to the issue of their consent, could also shed light on how their actions and failures to act appeared to the appellant: if C1 and C2 then appeared to have consented, that could be material to whether they appeared to be consenting at the time of the sexual intercourse. If so, although I am far from persuaded, it was even more a matter in which the jury had an advantage over this Court. I do not think the appellant's position is thereby assisted.
37 In my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew that C1 was not consenting, and accordingly (the other elements of the charge not now being in question) that the appellant was guilty: M v The Queen at 493-5. Whether or not knowledge that C1 was not consenting could be found, I consider that recklessness could readily be found. C1 attended on the appellant for a massage. The appellant set out to massage him with a view to having sexual contact with him. He had C1 in a vulnerable position, naked on the table, and took advantage of it. The appellant could not have believed in the beginning that C1 consented to the appellant sucking his penis, but without any more preliminaries than the touching of the scrotum and leg stretching began to suck it. There was clearly no overt consent. The view was well open that the appellant believed that C1 might not be consenting but, as he said, "decided to try his luck" and moved to sucking C1's penis regardless of whether or not C1 was consenting. The offence was complete at that time, and that C1 froze and did nothing, even while the sucking continued for some minutes, did not mean consent to the act of sexual intercourse within the definition. Nor in my opinion were the jury obliged to regard the doing nothing as destructive of absence of knowledge that C1 was consenting because removing the possibility (at the least) that C1 was not consenting when the sucking began; in the circumstances the reaction of freezing was not unnatural.
38 There is more to be said in the case of C2, because on C2's account what I have called preliminaries were more extensive, massaging other than shoulder massage and the touching of the penis and masturbation. On the other hand, and leaving aside saying "Ah", C2 shook his head. Nonetheless, in my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew that C2 was not consenting. The same consideration of the appellant's view to sexual contact and taking advantage of vulnerability apply. The view was open that, although there was not a strong unfavourable reaction to the touching and masturbation, the appellant still believed that C1 might not be consenting and again "decided to try his luck". C2 had shaken his head at the time of the touching, and while there had not been further protest at the time of the masturbation the next step of the appellant putting his mouth on C2's penis (being the relevant sexual intercourse) was an escalation as to which the jury could conclude that the possibility (at the least) that C2 was not consenting was present to the appellant's mind and was disregarded. A like consideration as to C2 doing nothing while the sexual intercourse continued applies.
39 In neither case, in my view, has the ground of appeal been made good.