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File Number: SCA 15 of 2021

Decision under appeal: Court: ACT Magistrates Court Before: Special Magistrate Campbell Date of Decision: 8 April 2021 Case Title: McFarlane v Van Eyle Court File Number: CC 2019/2500

LOUKAS-KARLSSON J:

Introduction

1. This is an appeal from a decision of the Magistrates Court. On 8 April 2021, Timothy Van Eyle (the appellant) was found guilty by Special Magistrate Campbell (the Magistrate) of committing an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT).

2. The appeal is by way of rehearing: Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy).

Jurisdiction

3. The Court’s jurisdiction to hear this matter is derived from Part 3.10 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act). In particular, s 208(1)(b) is the basis of the jurisdiction to hear an appeal against conviction for a summary offence.

Grounds of Appeal

4. By way of Notice of Appeal dated 23 April 2021, the appellant relied upon the following grounds of appeal:

(a) The verdict was unsafe and unsatisfactory; and

(b) In the alternative, the Magistrate gave insufficient reasons.

5. The appellant seeks that the conviction be quashed and a finding of not guilty be made by this Court.

The Hearing

6. The hearing commenced before the Magistrate on 22 February 2021. Both the complainant and the appellant gave evidence. Two statements were tendered by the prosecution, one from the complainant’s partner, and one from the informant in the matter. A client form signed by the complainant was tendered by the prosecution. The defence tendered a single exhibit, a massage consultation form.

7. The main areas of contention were: • The manner in which the appellant touched the complainant’s breasts;

• Whether the appellant deliberately touched the complainant’s nipples;

• Whether the complainant consented to the touching; and

• If the complainant did not consent, if the appellant knew or was reckless as to the lack of consent and, further, acted with the intention of obtaining sexual gratification.

8. Reliance was placed upon the appellant’s prior good character. He was 25 years of age at the time of the hearing.

Evidence of the complainant

9. The complainant gave evidence in a recorded evidence-in-chief interview and at the hearing.

Evidence-in-chief interview

10. The complainant attended the Spa Mint on the afternoon of 21 January 2019 for the purposes of receiving a Swedish massage and a facial. Upon arrival, the complainant was informed that a male massage therapist would be performing her massage and a female, the owner, would perform the facial.

11. The complainant entered the room where the massage was to be performed and put her things away. The massage commenced with a foot bath. The appellant then asked the complaint to undress, leave her underwear on, and lie on her stomach under the sheet on the massage table. The appellant stepped out of the room while the complainant did this.

12. The massage commenced and the appellant massaged the complainant’s back, shoulders, and legs. The massage struck the complainant as being average. About halfway through, the appellant asked the complainant to turn over onto her back. He held up the sheet. The complainant did not think that he could see anything as she rolled over. The appellant lay the sheet back down over the complainant. She felt comfortable. The complainant had an eye mask on and was unable to see.

13. The appellant commenced massaging the complainant’s legs. At one point, he moved each leg out, one at a time, and the complainant bent her knee. The appellant massaged the complainant’s thighs and was close to her groin, however, that part did not last long and the complainant did not think much of it.

14. The appellant then moved to the head of the bed and commenced massaging the complainant’s neck and shoulders. The complainant had an eye mask on and could not see anything of significance. The appellant whispered to the complainant “do you want me to do the rest of your chest?”. The complainant said “sure”.

15. The complainant was not sure what that would involve as she had not had many massages before, but she assumed it was part of the procedure and that he would massage the muscles surrounding the area of her chest. The appellant commenced with the complainant’s upper chest area before he proceeded to move the sheet down to about the level of her belly button. He did this gradually.

16. The complainant said: …so my breasts were uncovered and he was gradually, um, sort of massaging the area around my breasts and between my breasts. Um, but then that ended up, um, becoming – he just ended up sort of really fondling my breasts in what I perceived to be quite a sexual manner. Um, he – he was cupping my breasts and, um, moving them around and feeling them and, um, definitely at the point where he was, ah, he had his hands on my nipples or the area with the nipples, so I felt quite uncomfortable. Um, and I wasn’t sure if this was something they normally did or if I’d misunderstood, but I was starting to feel very uneasy. Um, he moved his hands away from the area, sort of went back to my shoulders and neck, um, but the sheet stayed at my belly button the whole time, he didn’t cover me back up, so I felt quite exposed. And then he would sort of move back from my shoulders, back to my breasts. Um, and did that, I think, one more time. And he also, um, began going from my breasts down to my stomach and then down to my hips, which then pushed the sheet down to my hips.

(emphasis added)

17. The complainant said that this made her feel uncomfortable and exposed.

18. Later, the complainant said:

…I would like to emphasise that, um, during the massage, while he was, um, sort of fondling my breasts that it did make me feel, like, quite uncomfortable and it did feel very sexual, and the thought would cross my mind that, you know, if my boyfriend were to walk into the room that he would have been very upset to see that, and it just didn’t feel right at all, um, it didn’t feel much like a massage, it felt, yeah, very sexual.

19. The complainant said that eventually, the treatment ended, and the appellant pulled the sheet back up and whispered to her that the lady would enter to perform the facial. The complainant said that the facial was fine. She still felt unsettled by what had occurred. After the facial was finished, the complainant got changed and paid. The complainant was asked, at reception, how she felt and she said that she was quite relaxed. She was still feeling very unsure and was questioning whether what had happened was normal or not. She felt very uncomfortable and very stressed.

20. The complainant left the massage parlour, called her partner and informed him what had happened. She started crying as she was speaking to him as she felt quite violated. The complainant and her partner attended the spa. The complainant waited in the car as her partner spoke with the owner who had performed the complainant’s facial. The owner said that was not within their policy and they did not perform those sorts of massages. The owner said about the appellant “I – I know him, if you met him you would understand, like he’s not like that”. She said that they had both undertaken training courses involving sexual harassment training.

21. The complainant’s partner returned to the car. He called the police who advised that the complainant should speak to them directly. The complainant did so when she arrived home. Later that evening, she received two calls from the massage parlour. She did not answer the calls.

22. The complainant did not attend work the next day as she felt quite sick and upset. The complainant attended the police station and made a formal complaint.

23. The complainant said that she had received about five full body massages prior to this.

24. The complainant was unaware of the appellant’s name at the time of the massage. The complainant’s partner was informed, when he attended the spa, that the appellant’s name was “Tim Van Eyle”.

Evidence at the hearing

25. At the hearing, the complainant gave evidence that she completed a client information form upon attending the spa.

26. The complainant said that when she first moved on to her back the sheet was covering her from approximately over her collarbone. She gave evidence that before the appellant moved the sheet down her breasts were not exposed at any other point.

27. The complainant gave evidence in relation to the manner in which her breasts were massaged (T1.15.32-16.7):

I suppose the best way to describe it is that it was like he was holding, holding my breasts and, yes, just, yes, it felt like fondling and sort of moving them, like sort of groping, yes, and definitely more of a, what I felt was more of a sexual way than any kind of muscular massage.

…

I suppose in my experience a massage is generally firm and targeted on particular muscle groups and the way he was touching my breasts, it wasn’t, it wasn’t firm and it didn’t seem to be targeting anything. It just seemed to be just feeling them and that, as well as the fact that he would sort of move from touching my breasts to then touching my stomach, and moving his hands down towards my hips and back up again. That’s – and it wasn’t, it wasn’t like a firm, like a massage touch. It very much felt like feeling me up from my hips and up to my breasts.

28. The complainant gave evidence that she could not recall how many times the appellant moved his hands down her stomach and hips and back up again, but that it was definitely more than once. She thought it may have been two or three times.

29. The complainant gave evidence that she couldn’t see, but it felt like the whole of the appellant’s hands were touching, cupping and feeling her entire breasts, including the nipple. She gave evidence that she could not remember what part of his hand touched her nipple but assumed it was his palm.

30. The complainant gave evidence that, on a pressure scale of 1 to 10, with 10 being very hard, the appellant touched her breasts around a level 4 or 5. She said that it was not pressure to the extent of a massage, which she clarified as being level 7 or 8, but that it was definitely intentional.

31. The complainant gave evidence that the massage felt sexual as she was exposed, effectively lying half naked, with her eyes covered, even when the appellant moved away from her breasts. That was different from how he had massaged other areas, where he would uncover the area, massage it, then cover it back up.

32. The complainant said that the period of time from when she was exposed to when she was covered again was approximately 10 to 15 minutes, however she said that she did not have a very strong awareness of time.

33. In cross-examination, the complainant agreed that her memory of the event is not 100%, but that she could recall the major aspects. She later clarified that her memory was probably 80 or 90%.

34. The complainant agreed that the appellant did not massage her breasts for 10 to 15 minutes, and that this time estimate included the massaging of her stomach and her hips. The complainant agreed that an estimate of 5 minutes, in total and combined, could be accurate for the massaging of her breasts.

35. The complainant stated that the only time the pressure of the massage was noticeably less and distinct from the rest of the massage was when the appellant was touching her breasts, stomach and hips.

36. The complainant agreed that she was aware that it was her choice whether she removed her bra or not. She agreed that she could have physically taken her eye mask off but that this would have been strange to do.

37. The complainant agreed that she said she felt relaxed after the massage. She said that this was not an accurate representation of how she felt. The complainant denied saying that she felt relaxed because that was an accurate representation of how she felt.

38. The complainant agreed that, when she left the massage parlour, she was usure at the time as to precisely what had happened.

39. The complainant agreed that her evidence in court was not that the appellant touched 1 her nipples, “or the area with the nipples”, but that the appellant touched her nipples. The complainant did not agree that it was possible that she mistook the sheet brushing over her nipples for the appellant touching them.

40. The complainant clarified that by the term “cupping” she meant the feeling of someone holding her breasts and cupping them in the sense that the appellant put his hands around her breasts, holding them, and moving them. The complainant gave evidence that the thing that stuck in her memory was that the appellant held and groped her breasts, he did not merely put his hands underneath her breasts. The complainant agreed that the appellant did not “cup” her breasts by putting his hands underneath her breasts with the thumbs pointing inwards.

41. The complainant did not accept that all the appellant did when he was massaging her breast area was to massage the side of her breasts.

42. The complainant gave evidence that she did not see the appellant touch her nipples but felt it.

43. The complainant denied fidgeting throughout the massage, saying that she did not think it was possible and that she normally stays still in a massage. The complainant said that she was certainly not fidgeting to the point of shifting the entire sheet.

44. The complainant said that it was not possible that the appellant asked her if she wanted the “whole” of her chest massaged.

45. The complainant agreed that the appellant massaged the middle of her chest and the areas between her breasts. She could not recall her ribs being massaged but said that it was possible.

46. The complainant did not agree that the appellant asked her if she was ok.

1 EICI QA4, pg 3. Evidence of the appellant

47. The appellant gave evidence both in a record-of-interview and at the hearing.

Record-of-interview

48. The appellant trained at the Canberra Institute of Technology (CIT). He finished his Diploma in Remedial Massage Therapy in 2018. At the time of the incident, the appellant had been practicing, outside of study, for two or three weeks. Part of the appellant’s training included sexual harassment training.

49. The guidelines for Spa Mint, where the appellant worked, stipulated that there was no touching of the genitalia:

…obviously no genitalia ever, obviously. Never would do that ‘cause that is sexual. Um, the – basically it kind of says it, like, in our form and everything, it says, like, if – ah, a therapist will always inform the client of what they’re doing and then if a client feels uncomfortable or otherwise they should speak up in the treatment or, um, what’s happening at the time can be cancelled or, you know, things can be fixed so that the client is happy. And so that’s how I treat every treatment, is always just I tell them or ask them, do you want this, is this okay. They give me the response back and then I proceed accordingly.

50. The appellant massaged the complainant as he normally would. When he came to the chest, neck, and head portion of the massage, the complainant began moving around, moving her hands mostly. The sheet moved down and exposed the top of the complainant’s left nipple.

51. Based on the complainant’s body language, the appellant asked her “do you want me to massage your whole chest?”. The complainant replied “oh, yeah that would be good”. The appellant undraped the complainant and exposed her breasts and proceeded to massage her. He moved between her breast area, down further, and back up, approximately four times. The complainant kept relaxing during this and did not say anything.

52. He had no sexual interest in the massage and it was not erotic. He said that he used standard relax techniques including effleurage, petrissage, and myofascial release. The appellant massaged the side of the complainants ribs before re-draping the sheet.

53. Effleurage is (QA71):

A Swedish massage technique. So it’s like – it’s usually long stroked, but you can do short strokes as well and it’s just, like, a flowing long stroke, that’s effleurage. It’s the description for long, light pressure stroke.

54. Petrissage is (QA72-73):

…kneading. It’s um – it can be one hand or two hands. Um, for example on like the traps, it would be just, like, over the trap and just going side to side, kind of, bringing the muscle into a small ball and then shortening it and you can do that on, like, tiny little areas as well or you’re over a quad or something, yeah.

55. Myofascial release, or MFR, is (QA74):

…that’s basically – so I’m applying a pressure to an area, in this case the ribs, which is really effective for diaphragms, sorry. Um, and it – basically the facia in your body should go down with gravity. What I’m trying to do is because there’s facia going the other way, causing tension, I’m pressing into a depth of the skin that’ll reach facia and to where I feel a hook. It’s kind of hard to explain a hook, unless you’re a therapist. But I feel it, sort of, catch and then at that point I can just rest in that position and the facia will start to stretch everything or everything it’s connected to.

56. The appellant used MFR on the complainant’s ribs. The appellant asked the complainant, when he was doing so, “are you okay?”. He did this as it could feel pretty invasive, having someone’s fingers on your stomach area.

57. The appellant said to the complainant that the massage was over and that they were “switching over”, meaning the facial would commence. The complainant said “Okay. Thank you”. The complainant seemed happy when he left the room. She was relaxed and, at one point during the massage, it seemed as if she was falling asleep.

58. The appellant said that he had never been taught to treat breasts, he had been taught to treat the diaphragm and stomach area, as well as the hip flexors. The appellant used conceptual learning to apply the knowledge of massage techniques that he had to treat the breast area.

59. The appellant said that his reason for massaging the complainant’s breasts was (QA85-86):

… because she was twitching, so she didn’t seem comfortable … and then when she – it could have been by accident, but when she moved the sheet and exposed, you know, more than what I had draped I thought, oh maybe she wants treatment there so I’ll ask her.

60. The appellant gave evidence that he thought that this might help the complainant to relax.

61. The appellant said that he did not think to move the sheet back up, but that he has done this in the past in a remedial treatment:

It was a remedial treatment and I was fixing, like, stuff in her neck, for this lady and, ah, yeah she just – like, everything just, like, pulled it right down so I saw everything and then I just went whoa and then continued with her neck and she just didn’t say anything.

62. The appellant said that the prior training incident had seemed sexual (QA103).

63. The appellant said, in relation to massaging the complainant:

…see at the time, it didn’t seem like an accident because it was quite quick and – but, like, if I think back maybe it was an accident. But then because I asked her, like, that’s the bit that made me think, okay, it must have been deliberate, like, yeah once you get consent I’m like okay then it’s all right.

Evidence at the hearing

64. The appellant gave evidence at the hearing.

65. He has been a qualified masseuse since December 2018 and is still employed at Spa Mint, although the ownership, and name, has since changed. At the time of the incident he had been a qualified masseuse for one month.

66. Prior to the incident, the appellant had massaged approximately 200 female clients before. The majority of these massages were full body massages.

67. The appellant gave evidence that he massaged the complainant’s breasts as he thought she wanted him to, as she had exposed part of her breast to him. The appellant accepted that this may have been an accident. He said that he wasn’t sure, at the time that part of the complainant’s breast became exposed, that she wished for him to massage her breasts. This is why, the appellant said, he asked the complainant “do you want me to massage your whole chest?”.

68. The appellant gave evidence on how he massaged the complainant’s breasts:

So I draped down to about her bellybutton or waist level and then I used effleurage… to first spread oil around the outsides and the inside, also reaching to her rib and sort of where the sheet it laid, so just towards the bellybutton area. Then I did effleurage more directly and I guess purposely around the outsides of the tissue and then more towards the inside of the tissue and the other side, so swapping from one side to the other. Then I did petrissage, or the kneading movement, on one breast tissue, like one side, and then moving across and then to the other side, trying to keep a flow. Then using a slightly longer stroke of effleurage, I then start[ed] including other parts of the body at the same time, so going down to the rib and back up towards the side of the neck or shoulders and then repeating that through the centre and through the other side.

69. The appellant gave evidence that he precisely performed effleurage by going down the sides, over the breast tissue, but not towards the nipple. The appellant applied petrissage to the breast area the same as he would have for the “pec minor”, by getting under the edge of the breast tissue.

70. The appellant gave evidence that he did not use the MFR technique on the complainant’s breast tissue.

71. The appellant gave evidence that at no point did his fingers touch her nipples, as doing so would have been sexual. He did not cup the complainant’s breasts as, again, doing so would have been sexual.

72. The appellant did not apply the same amount of pressure for the entire massage. He used less pressure on any areas where there was thinner skin, thinner muscle density, or where no tension was being held.

73. The appellant gave evidence that he massaged the breast tissue of the complainant for no more than two minutes. He gave evidence that he massaged the complainant’s chest area, after removing the draping, for approximately four to six minutes.

74. Halfway through the massage of the complainant’s breasts, the appellant gave evidence that he asked the complainant “are you okay?”. He did this as she seemed a bit too still, particularly after being fidgety.

75. The appellant gave evidence that he became aware that something was wrong when his boss called him as he was on his way home.

76. The appellant gave evidence that there were parts of his CIT course that dealt with massaging a female’s breasts, in that it was touched on briefly in relation to cancer related massage and operation-based massage.

77. The appellant, following the offence, created a new consultation form. The form included a particular section that states “I understand there will be no treatment to erogenous zones (breasts, nipples, and groin) and if I feel uncomfortable, I have the right to terminate treatment or tell my therapist”. The second page of the form has a diagram of the body and labelled locations for people to mark where they do not consent to be treated. This form was tendered and formed Exhibit 6. The original client consultation form formed Exhibit 4.

78. In cross-examination, the appellant accepted that breasts are an erogenous zone. The appellant accepted that, in this community, breasts are treated as sexual body parts. The appellant clarified that the “main part” that is considered sexual is the nipple area.

79. The appellant gave further evidence in relation to the incident at CIT, where a woman exposed her breasts. The appellant said that the woman deliberately brought the sheet down right below her breast tissue. He was more or less in shock as, at this point, this had not happened to him before. The appellant said that he grabbed the sheet and pulled it back over to cover her before carrying on the massage. The appellant gave evidence that the experience made him feel uncomfortable and that it was bizarre. The appellant said that he thought he should “probably just cover it up because that was very bizarre”.

80. The appellant accepted that this was a different reaction to the one that he had with the complainant.

81. The appellant gave evidence that he asked “are you okay?” as he noticed a change in the complainant’s body language. He did not accept that touching the complainant’s breast tissue was invasive enough to warrant asking if she was okay, as the complainant had, to his knowledge, consented.

82. The appellant gave evidence that he did not feel as if he required clarification as to the meaning of the “whole chest” as:

…after very clearly asking her the question and then her very clearly giving me the response and then very purposely draping to reveal the area she then had the right to say, “that’s not what I meant”, or something to that effect.

83. The appellant gave evidence that the complainant was attractive and accepted, hypothetically, that if he were attracted to someone and, in an intimate setting with them, touched their breasts, that this would be arousing.

84. The appellant gave evidence that he said “whole chest”, as he did not want to come across as being sexual to the complainant. The appellant said that if he used the term “breasts” he felt as if that would have either aroused the complainant or would trigger a fight/flight situation and the complainant wouldn’t have relaxed, whether she consented or not. The appellant said that he wanted the complainant to relax, as it was a relaxation massage.

Decision of the Magistrate

85. The Magistrate rejected the following parts of the defendant’s evidence:

• That the complainant was fidgety during the first part of the massage;

• That the complainant moved the sheet deliberately to expose her breasts;

• That the movement of the sheet was done to indicate that the complainant wanted her breasts massaged;

• That the appellant did not touch the complainant’s nipples or areola;

• That the complainant became more relaxed once the appellant started to massage her breasts area; • That the appellant asked the complainant if she was okay; and

• That the appellant used the MFR technique on the complainant’s ribs.

86. The Magistrate was satisfied beyond a reasonable doubt that:

• The appellant touched the complainant’s breasts in a sexual manner;

• That the touching was deliberate and not just in passing in massaging other areas of the complainant’s body;

• That the appellant touched the complainant’s nipples and areola with his hands;

• That the appellant moved the sheet to the complainant’s stomach, and pushed it down further to her hips as he was moving his hands down that area; and

• That the appellant left the complainant’s breasts exposed for this part of the massage.

87. The Magistrate further found the following:

The defence submitted that the fact that the defendant asked the question about massaging her chest and that the complainant said yes means that I would not be able to find that there was no consent to the touching. The question must be, for me, whether the complainant consented to the defendant touching her in the manner that I have now found he did.

The complainant says that she never gave consent to this type of touching. The defendant says that his question seeking permission was only for the outside areas and in between the breasts. Having rejected that this was the action performed, the question cannot be seen as seeking consent for the type of touching that occurred.

In considering whether the defendant was reckless as to whether the complainant was consenting to this type of touching regard is had to the lack of training in the area, and his own admission that touching the nipples and areola and cupping the breasts would be considered sexual. Having accepted that that is, in fact, the action that did occur, I am satisfied that the defendant knew, or at least was reckless, that the complainant had not consented to this type of touching.

Submissions

Submissions of the appellant

88. The appellant submitted that the Magistrate erred in rejecting the reasonable possibility that the appellant was giving truthful evidence when he testified that he believed the complainant had indicated that she consented to him touching her in the manner that he admitted he did.

89. The appellant did not submit that the Magistrate erred in accepting the complainant’s evidence on the issue of consent, given the advantage enjoyed by the Magistrate in seeing the complainant give evidence in person. Unreasonable or cannot be supported (“Unsafe or Unsatisfactory”)

90. Counsel for the appellant submitted that the issues at hearing were the manner in which the appellant touched the complainant’s breasts; whether or not the appellant deliberately touched the complainant’s nipples; whether the complainant consented to the touching; and, if the complainant did not consent, if the appellant knew or was reckless as to the lack of consent and acted with the intention of obtaining sexual gratification.

91. It is not in contention, it was submitted, that part of the appellant’s hands may have come into contact with part of the complainant’s breasts, in the course of the full body massage. The appellant conceded, in a taped record-of-interview with the police, that he massaged the sides of the complainant’s breasts, as part of a process of “effleurage”, as well as the area directly underneath the complainant’s breasts when massaging her ribs.

92. Further, it is not in contention that before the appellant touched the complainant’s breasts, he asked her either “do you want me to do the whole of your chest”, or “do you want me to do the rest of your chest”, and that the complainant answered in the affirmative.

The reliability of the complainant’s evidence and the finding as to recklessness on the issue of consent

93. The appellant correctly conceded that the Court could not make a positive finding that the complainant gave untruthful evidence without having seen her give evidence and would not interfere with the finding that the complainant did not consent to being touched in the manner that she was by the appellant. However, the appellant submitted that the Court would have significant doubts regarding parts of the complainant’s evidence that would lead to a reasonable doubt as to the precise conduct of the appellant and the appellant’s state of mind.

94. The appellant submitted that, critically, twice in cross-examination the complainant acknowledged that she was “unsure” about what happened during the massage. The complainant conceded that her memory of the event was only 80-90% at the time of the hearing, and that she was not 100% sure if the appellant’s hands touched her nipples as she was wearing an eye mask. She was sure, however, that was what it felt like.

95. The appellant submitted that central to the Magistrate’s finding that the appellant was reckless, was the finding that the appellant must have known that it was not appropriate for him to touch the complainant’s breasts, regardless of his question to her and her answer in the affirmative.

96. It was submitted that no explicit reason was given for this conclusion, and that the only implicit reason was the finding that the appellant would have understood at the time of the offence that there was a vital difference between a woman’s “chest” and her “breasts”, despite such terms being synonymous anatomically.

2 See: R v Giam [1999] NSWCCA 53 at [31]; Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33 at [31]-[40]. The correct phrase is “unreasonable, or cannot be supported, having regard to the evidence”: s 37O(2)(a)(i) Supreme Court Act 1933 (ACT).

97. Further, the appellant submitted the Magistrate erroneously reasoned that, as the appellant used the terms “chest” and “breasts” on a consultation form at work after the offence, Exhibit 6, he must have been aware of the difference between the two terms as at the time of the offence.

98. Counsel for the appellant submitted that the Magistrate did not make a finding as to why the appellant asked the complainant if she would like the whole, or the rest, of her chest massaged. It was submitted that without finding that the appellant’s purpose in asking this question was to provide a “smokescreen”, or an explicit rejection that the appellant was seeking to clarify whether the complainant wished for him to massage her breasts, the finding of guilt was “unsafe”.

99. Counsel for the appellant submitted that in relation to the appellant’s credibility, the reasonable possibility that he was being truthful in his evidence could not be excluded for the same reasons that were submitted to the Magistrate as to why his evidence ought to be accepted.

100. Those reasons were: the appellant’s evidence was consistent throughout the taped record of interview, examination in chief, and cross-examination; the appellant was not evasive and answered in a matter-of-fact manner; the appellant made admissions against his interests, for example, agreeing that the complainant was an attractive woman; that the evidence regarding the revised consultation form supports the appellant’s credibility; the fact that the appellant gave a taped record of interview without legal advice; the appellant’s prior good character; and the demeanour of the appellant.

Exposure of part of the complainant’s breast during the massage

101. The appellant submitted that the first major factual dispute at the hearing was whether the sheet that was draped over the complainant during the massage was deliberately lowered, by either the appellant or the complainant, so as to expose one of the complainant’s breasts, or whether it accidentally slid down whilst the complainant was moving about.

102. In her evidence, the complainant denied deliberately lowering the sheet. This was accepted by the Magistrate. The appellant does not contest that finding.

103. Counsel for the appellant submitted that, in both his record of interview and in evidence in Court, the appellant stated that part way through the massage the sheet draped over the complainant lowered slightly so as to expose part of one of her breasts. The appellant was unsure if the complainant had deliberately lowered it or if it had become dislodged whilst the complainant was moving around during the massage.

104. As a of result of the partial exposure of one of her breasts and his uncertainty as to whether it had been a deliberate move by the complainant, or accidental, the appellant’s evidence was that he then asked her the question as to whether the complainant wished for him to massage the whole of her chest.

Cupping of the complainant’s breasts

105. The complainant gave evidence at the hearing that the appellant “sort of cupped and groped” her breasts.

106. Counsel for the appellant submitted that this was in spite of the fact that, for the duration of the time that the appellant was touching the complainant’s breasts, he was standing at the head of the massage table, behind the complainant’s head. It would have been impossible, it was submitted, for the appellant to have placed his hands underneath the complainant’s breasts in a cupping motion while in this position.

107. When put to her in cross-examination, the complainant conceded that the appellant had not cupped her breasts in the manner described (T27.20-28.11):

… Just so we can be clear what you mean by ‘cup’, you mean, don’t you, his hands underneath your breasts with the thumbs pointing inwards like so?... - - - Again, I can’t be precisely certain of the positioning of his hands but to me it was the feeling of someone holding my breasts and cupping my breasts in the sense of putting his hands around my breasts.

…

… So when you say he was cupping your breasts did you feel his hands underneath your breasts? - - - I just recall feeling his hands just on my breasts – on – under. I don’t - - -

…

And I also suggest to you that it would have been impossible for the defendant to place his hands underneath your breasts in a cupping motion whilst he was at the head of the table standing behind your head? - - - Well, that was, that was my point as well.

Okay. So you accept that he didn’t do that? - - - Not in the way that you have described.

108. The appellant submitted that “the complainant conceded that such had not occurred but claimed that was not what she had meant by the use of the term “cupped””.

Touching of the nipples

109. The complainant gave evidence at the hearing that the appellant touched her nipples with his hands. The appellant denied this. In the pre-recorded interview with police, the complainant said that the appellant touched “my nipples or the area with the 3 nipples”.

110. Counsel for the appellant submitted that, when cross examined on this, the complainant “dissembled and unconvincingly stated that her use of the word “or” in her police interview had been unintentional”.

111. This was, it was submitted, one of several instances in cross-examination where the complainant did not make an appropriate concession.

112. The appellant conceded at the hearing that if the Magistrate found beyond reasonable doubt that the appellant deliberately touched the complainant’s nipples, then the Court would be satisfied that the action had been performed with the intention of obtaining sexual gratification, as per R v Schippani [2012] ACTSC 108; 265 FLR 197 (R v Schippani).

113. However, the appellant submitted that it was not open to the Magistrate to be satisfied beyond reasonable doubt that he touched the complainant’s nipples, or otherwise touched the complainant in an unequivocally sexual way. Accordingly, it was further

3 EICI QA4, pg 3. submitted that it was also not open to the Magistrate to find an intention of obtaining sexual gratification on the part of the appellant.

Inadequate Reasons

114. Counsel for the appellant submitted that the “deficiencies” in the Magistrate’s reasons deprived the appellant, and this Court, of the ability to understand why the Magistrate found against the appellant on crucial issues and reasoned to guilt.

115. There were further, it was submitted, “significant gaps” in the Magistrate’s reasons, in particular in relation to the prior good character of the appellant.

116. The appellant relied upon prior good character at hearing. In her reasons, the Magistrate referred to the two different ways that this good character was potentially relevant, being the likelihood of the appellant having acted as alleged, and in relation to the appellant’s credibility.

117. On the first issue, the Magistrate, it was submitted, merely said, “I consider that the good character evidence does not assist me in considering the likelihood of him having committed the offence as alleged” (T3.19.14-15).

118. Counsel for the appellant submitted that “such a bare ipse dixit” does not satisfy the requirement for adequate reasons. The basis of the Magistrate’s conclusion as to why the appellant’s prior good character did not assist was unexplained.

119. Further, counsel for the appellant submitted that, given the context in which that comment was made, there is a real possibility that the Magistrate merely equated (and discounted) the Appellant’s good character with the short length of time he had working as a masseur and, therefore, treated it as of no real significance.

Respondent’s Submissions

120. The respondent submitted that it was open for the Magistrate to reject the evidence of the appellant regarding his conduct. It was submitted that the Magistrate, as outlined in her decision, held reservations about the appellant’s honesty and reliability based on five key aspects of his evidence, being:

(1) The appellant’s reaction to the complainant’s breast exposure;

(2) The appellant’s belief as to the appropriateness of massaging the complainant’s breast;

(3) Discrepancies in the appellant’s evidence;

(4) Use of the MFR technique on the complainant’s ribs; and

(5) Reluctance to use the word “breasts”.

121. It was submitted that these five aspects, individually or in combination, provided sufficient scope for the Magistrate to reject the evidence of the appellant where it was uncorroborated and inconsistent with the evidence of the complainant.

The appellant’s reaction to the exposure of the complainant’s breast

122. The Magistrate found that the appellant’s evidence, that the complainant exposed her breast, and that he took this to mean that she wanted her breasts massaged, was implausible. Further, it was implausible in circumstances where the appellant was unable to distinguish this reaction from a previous similar incident at CIT.

123. The appellant gave evidence about a previous incident where a woman had deliberately exposed her breasts to him during a massage at CIT:

Okay. So why was – you just mentioned you’ve done that in the past if the sheet’s moved down, you’ve pulled it up. --- Yeah I remember like, at CIT, during – so in a remedial treatment, I guess, I think completely differently as well. It was a remedial treatment and I was fixing, like, stuff in her neck for this lady and ah yeah, she just – like everything just, like, pulled it right down so I saw everything and then I just went whoa and then continued with her neck and she just didn’t say anything. So I don’t know what that was.

…

Yes. Okay. Can you tell me a bit more about that example? --- I believe that was during a remedial treatment and, yes, I was just treating her neck, going through trigger points at the base of the skull and it just, it almost just seemed random but she quite obviously and deliberately brought the sheet down below her breast tissue, right below, and in that instance, I was more or less just in shock because it hasn’t happened before at this point, at this point, and then I grabbed the sheet and brought it back over to cover and then just, I almost tried to ignore it and went back to treating her neck.

Okay, so you were in shock. Did it make you feel uncomfortable? --- A little bit, yes.

And that was because she had just exposed her breasts to you? --- That’s right.

And you didn’t really know what to do with that? --- Well, I knew I should probably just cover it up because that was very bizarre.

Okay. So that was very bizarre when she quite deliberately pulled her sheet down and exposed her breasts to you and you knew you should cover it up? --- Yes. 4 Okay. That’s not what you did with [the complainant] though, is it? --- No.

…

Okay. What was the difference between that --- That one seemed sexual. That one seemed very sexual.

Okay. --- Yeah.

What was the difference between that and [the complainant] who may have accidentally moved it? You said her left hand was twitching? --- Well – yeah, see at the time it didn’t seem like an accident because it was quite quick and – but, like, if I think back maybe it was an accident. But then because I asked her, like, that’s the bit that made me think, okay, it must have been deliberate, like, yeah once you get consent I’m like okay then it’s 5 all right.

124. The respondent submitted that the evidence of the appellant was implausible as he treated the two breast exposures, both of which he considered to be deliberate, differently and without justification. It was submitted that the appellant’s two responses to the exact same situation, one being an immediate cover-up of the area,

4 T54.11-38. 5 QA.99-105 of MFI 2. and the other being an offer to uncover and massage the chest area, were contradictory.

125. Counsel for the respondent further submitted that no convincing reason was provided to differentiate between the two situations. This, it was submitted, rendered the appellant’s evidence, that the complainant’s breasts had become exposed prior to his massage offer, unbelievable and adversely affected his credibility and reliability.

126. It was submitted that the Magistrate was justified in rejecting the evidence of the appellant that the complainant had exposed her breast and that the appellant took this as meaning that she wanted him to massage her breasts.

Belief as to the appropriateness of massaging the complainant’s breasts

127. The Magistrate found it implausible, particularly in the context of the appellant’s CIT training and his awareness of the sexual nature of breasts, that the appellant would find it acceptable to touch the complainant’s breasts after asking her whether she wanted him to massage her chest.

128. The appellant gave evidence about his awareness about the intimate nature of the female breast, particularly the nipples:

Okay, so you accept that in this community we treat breasts as sexual body parts? --- Okay. Yes. 6 You do accept that? --- Yes.

…

Okay. So you have accepted that in this community we treat them as sexual body parts, that being breasts? --- I think the main part of that – I’m sorry to interrupt – is that the nipple area is considered a sexual part because, particularly these days, bras don’t even 7 cover the entire breast at all.

…

All right. You have already accepted that nipples are an intimate body part. In your words, they are the defining part of the body that makes, that is the sexual part that bikinis are 8 designed to cover, for example? --- That is the most sexual part, yes.

129. The appellant gave evidence about his massage training at CIT:

So you said that you have a – you have a certificate in – like, a Diploma in Remedial Massage? --- Yeah, yeah.

During your training, were you ever taught on how to massage a female’s breasts? --- No.

So how did you know how to conduct the massage on that part of the body? --- I guess, that’s more like – it’s like intuitive use of the techniques I’ve learnt. Um yeah, they never told – taught us to treat breasts…So I used, like, conceptual learning to just apply that knowledge to treat that area. To treat the breast area. Kind of the same way you would 9 treat a scalp, I guess.

…

6 T52.26-30. 7 T52.40-43. 8 T53.6-10. 9 QA.78-81 of MFI 2. Now, before this incident on 22 January 2019, had you massaged female clients before? --- Yes.

Approximately how many? --- I would say at least 200.

All right, and were any of those full body massages? --- The majority.

Thank you. Do you still massage female clients? --- Yes.

All right, including full body massages? --- Yes.

Now, if I can ask you in detail about the massage you performed on [the complainant’s] on 21 January 2019. Was that a standard type of massage that you had performed before 10 in the course of your work? --- Up until her breast tissue part, yes.

…

All right. Did any part of your course at CIT deal with massaging a female’s breasts? --- There was parts that touched on it briefly, like cancer related massage and operation based massage and things like that.

Okay? --- But that’s it.

All right, and did any part of your training with your employer deal with that? --- No.

All right. Before this incident on 22 January 2019, had you ever been asked to massage 11 the breasts of a female client before? --- I was never asked.

130. The appellant had never been trained to massage breasts. The appellant was aware that the massaging of breasts did not form part of a full-body massage and was not a standard type of massage. The appellant was aware that the breasts were an “erogenous” area and were a sexual body part. Counsel for the respondent submitted that the Magistrate rightly considered this part of the appellant’s evidence to be implausible and to adversely affect his credibility.

131. Counsel submitted that it was implausible that the appellant believed that it would be appropriate to massage the complainant’s breasts, a sexual body part that he had not been taught to massage, during a professional massage, simply because he asked for consent.

Discrepancies in the appellant’s evidence

132. Counsel for the respondent submitted that the Magistrate identified two discrepancies about the critical incident in the appellant’s evidence. Namely, the reason for the appellant allegedly asking the complainant whether she was “okay” during the course of the massage, and the complainant’s reaction towards the breast massage.

133. In his record-of-interview, the appellant gave the following evidence about asking the complainant whether she was “okay” during the course of the massage:

…and I also asked her during, “Are you okay?” She said, “Yes”. … …So you said that you asked during the massage, “Are you okay?” --- Yeah.

10 T41.39-46, T42.1-6 (22/2/2021). 11 T47.5-15 (22/2/2021). To which she replied, “Yes”. At what point, during the massage --- I think she said, like, “Yeah”. Yeah. At which point was that? Do you recall what point during the massage that was? --- Yeah, I think it was right when my – ‘cause when I was doing her ribs, she’s quite small girl, so I like – my fingers got to her, like, stomach because it was, like – like, my palms were used for the MFR and so my fingers were, like, on her stomach below her ribs. But yeah, around there was when I asked “Are you okay?” ‘cause that could – that could feel pretty invasive, having your – someone’s fingers on your stomach area and such.

134. In his evidence in court, the appellant gave the following evidence about asking the complainant whether she was “okay” during the course of the massage:

Okay. Thank you. Now, did you say anything to [the complainant] whilst you were massaging her breasts? --- Yes. Like halfway or so through that particular part, I said: “Are you okay?” All right, and why did you ask her that? --- She seemed just a bit like too still. After being fidgety she was like almost too still. Obviously, I wanted her to relax but if someone gets particularly quiet or her breathing slows down, it’s always good to just double-check. 12 All right. Did she reply? --- Yes. She said: “Okay”.” … And you accepted that the stomach, touching the stomach may be invasive enough to warrant asking: “Are you okay?” if you’re touching them, touching the stomach? --- The main reason for asking: “Are you okay?” was her change in body language. Okay. When you told police you said: “That could feel pretty invasive having someone’s fingers on your stomach area? --- Yes. That’s – I didn’t tell them that that’s why I asked 13 the question: “Are you okay?” … You said that: “She seemed more relaxed at some point because she wasn’t moving around”. Do you recall saying that in your police interview? --- Yes. Did it occur to you that perhaps she wasn’t moving around any more because she felt uncomfortable? --- That’s why I asked, “Are you okay?” Once your fingers had reached her stomach? --- No. That’s what you told police? --- I didn’t say that I asked her that question because my fingers reached her stomach. No, that’s not what I said to you. What I asked you was once your fingers had reached her stomach? --- That I did what? That you asked her if she was okay? --- No. You told police that when your fingers were on her stomach is when you asked if she was okay? --- During that instance. That’s --- You recall that when police asked you to specify when in the massage it was that you asked her, “Are you okay”, do you recall pausing before you answered? --- In the interview? Yes? --- Do I recall pausing? Yes? --- Yes, I think I thought about it for quite a bit. Yes. You wanted to be sure that you were ---? Accurate.

12 T45.30-40. 13 T56.30-37. --- giving the right answer? --- Yes.

135. The respondent submitted that it was open to the Magistrate to treat the appellant’s evidence as containing some form of discrepancy. Initially in his police interview, the appellant stated that he asked the complainant if she was okay because he was touching her stomach area which “could feel pretty invasive”. The appellant did not state that he asked this question due to a change in the complainant’s body language. Subsequently, in his evidence in court, the appellant gave evidence that he asked this question in response to a change in the complainant’s body language.

136. In his record-of-interview, the appellant gave the following evidence regarding the complainant’s reaction during the chest massage:

She actually seemed more relaxed...and then yeah, once I – so once we sort of moved on and even, like, after re-draping and going more in to her, she was like falling asleep. 15 That’s what it seemed like. … 16 …once I got her consent and started, she just started to relax … 17 …she, like, just kept relaxing…

137. In court, the appellant gave the following evidence regarding the complainant’s reaction during the chest massage:

Okay. Thank you. Now, did you say anything to [the complainant] whilst you were massaging her breasts? --- Yes. Like halfway or so through that particular part, I said: “Are you okay?” All right, and why did you ask her that? --- She seemed just a bit like too still. After being fidgety she was like almost too still. Obviously, I wanted her to relax but if someone gets 18 particularly quiet or her breathing slows down, it’s always good to just double-check.

138. The respondent submitted that the evidence of the appellant that the complainant was relaxed during the chest massage, and appeared as though she had fallen asleep, was inconsistent with his evidence that he noticed the complainant became “too still”.

139. Further, it was submitted, the evidence of the appellant that the complainant was relaxed and seemingly asleep, is difficult to reconcile with the feelings of the complainant who, during the chest massage, felt “uneasy”, “vulnerable” and “uncomfortable”, and who was unable to cover herself with the sheet due to “confusion, apprehension and a sense of vulnerability”.

140. Counsel for the respondent submitted that the appellant’s evidence raised further questions in respect of his honesty and reliability.

Use of MFR on the complainant’s ribs

141. The Magistrate considered the appellant’s evidence that he used the MFR technique to massage the complainant’s ribs. The complainant, it was submitted, had not

14 T57.36-45, T58.1-11. 15 QA.67 of MFI 2. 16 QA.100 of MFI 2. 17 QA.110 of MFI 2. 18 T45.30-39. described any touching consistent with this. The complainant was cross-examined about the rib massage. Whilst she did not believe that it was likely that she was 19 massaged on her ribs, she conceded that it was possible. This concession, it was submitted, must be viewed in light of the appellant’s descriptions of the MFR technique and in light of the complainant’s descriptions of the appellant touching her.

142. The appellant described the touching of the complainant’s ribs and the application of the MFR technique as follows:

I did, like (indistinct) on the side of her ribs so under her breast tissue, sort of, pressing 20 through the ribs just… … So I did my training at CIT and then it was a Diploma in Remedial Massage Therapy and so you learn relax during the entire Cert IV and a lot of the, like, MFR and trigger point 21 therapy and all that – all the extra techniques in the Diploma. … …I said MFR…yeah so that’s myofascial release, which you’ve probably also heard of. Um and that’s basically – so I’m applying a pressure to an area, in this case the ribs which is really effective for diaphragms, sorry. Um, and it – basically the facia in your body should go down with gravity. What I’m trying to do is because there’s facia going the other way, causing tension, I’m pressing to a depth of the skin that’ll reach facia and to where I feel a hook. It’s kind of hard to explain a hook unless you’re a therapist. But I feel it, sort of, catch and then at that point I can just rest in that position and the facia will start to stretch everything or everything that it’s connected to.

143. The complainant described the touching as: 22 It very much felt like feeling me up from my hips and up to my breasts.

…

It was a pattern of sort of my breasts, feeling down my stomach down to my hip bones, 23 coming back up and maybe touching my shoulders again and then back to my breasts.

… 24 He definitely touched and ran his hands over my stomach…I wouldn’t call it massaging.

…

He ran his hands down my stomach and towards my hip bones and touched my hip 25 bones.

144. The respondent submitted that it was open to the Magistrate to have reservations about the appellant’s reliability due to this evidence. Further, whilst the complainant conceded the possibility of the appellant massaging her on the ribs, she did not describe any touching consistent with the application of pressure into the depth of the skin which stretched the facia.

19 T32.44-47, T33.1-5. 20 QA.44 of MFI 2. 21 QA.47 of MFI 2. 22 T16.6-7. 23 T17.11-16. 24 T33.9-12. 25 T33.40-42. Reluctance to use the word “breasts”

145. The Magistrate considered the evidence of the appellant in relation to his reluctance to use the word “breasts” during the massage, and found his reasoning to be implausible.

146. In evidence in court, the appellant had an exchange with the prosecutor about why he had not specifically informed the complainant that he would be touching her breast tissue:

But it’s the case, Mr Van Eyle, that you didn’t ask for her consent to touch her breast tissue? You asked for consent to touch her chest? --- I didn’t specifically say “breast 26 tissue”. That’s true.” … It’s the case that you relied on the question about doing the whole chest or finishing the rest of her chest as an opportunity to touch her breasts? --- I do remember asking specifically “whole chest” because I didn’t want it to seem sexual to her. I didn’t want her to make – I didn’t want to make her feel I was coming across as sexual because I wasn’t, so I used “whole chest” considering I had already treated her chest previously. There was 27 no, there was no other meaning to “whole chest” that I could think of in that instance. … And you have just said that you didn’t want to use the word “breasts” because you didn’t want her to feel like you were being sexual? --- That’s right. So you were concerned about whether or not she would think it was sexual? --- Yes, you could say that. Because you were concerned that touching her breast tissue or talking, even talking about her breast tissue, might be construed as sexual? --- Because it was a relaxation massage. I really just wanted her to continue to relax or relax beyond where she was without twitching and so if I used the term “breasts” immediately I feel like that would either (1) arouse her, and because of the exposure I couldn’t tell, or (2) it would trigger some kind of fight/flight situation and then she wouldn’t relax, whether she had consented or not. If you used the word “breasts”? --- That’s what I believe. You were concerned that saying the word “breasts” to her could arouse her? That’s your evidence? --- In some way. Okay, and you were concerned that saying the word “breasts” to her would trigger some sort of fight or flight response? --- It could. So you considered that it was better to just go ahead and touch that area? --- So I used the words “whole chest” and then draped to reveal the area. I’m asking you specifically about the breasts and you have given evidence that you didn’t want to use the word “breasts” because it might arouse her or trigger a fight or flight response, yes? --- Yes. Okay. It’s the case that you used the term “chest” to be deliberately opaque? --- I used the term “whole chest” after already treating the main parts of her chest. And the question gave you cover? --- I wouldn’t call it ‘cover’. It just keeps the situation 28 calm.

26 T60.32-40. 27 T61.17-25. 28 T62.6-44.

147. The respondent submitted that the appellant’s justification for using the phrase “whole chest” rather than “breasts” was extraordinary and that the Magistrate was justified to hold reservations about his credibility and reliability as a result.

148. The appellant gave evidence that he was reticent to use the word “breasts” so as not to make the situation sexual or scary. It was submitted that it is “absurd” and “illogical” that the appellant would think that use of a mere word would arouse the complainant or trigger the opposite effect in her, namely, a fight/flight response.

149. Further, it was submitted that it is “absurd” and “illogical” that the appellant would consider that the best way to avoid triggering arousal or a fight/flight response would be by avoiding the word “breasts”, not warning the complainant about touching her breast tissue, and by simply proceeding to remove the sheet and to commence touching her breast tissue. This, it was submitted, is arguably more likely to have the effect of making the situation sexual and/or scary.

150. Ultimately, it was submitted, the evidence of the appellant as to why he chose not to use the word “breasts” was unbelievable and adversely impacted his credibility and his reliability. I interpolate to note that I do not consider the evidence concerning the use of the term breasts to be unbelievable. Nor do I consider that this adversely impacted the appellant’s credibility and reliability.

Recklessness

151. The respondent submitted that, despite the fact that the appellant asked the complainant whether he should massage the whole, or the rest, of her chest, and that the complainant agreed to that, there was an inescapable inference that the defendant knew or was reckless that the complainant was not consenting to the “sexualised touching” of her breasts.

152. This inference, it was submitted, can be drawn from the setting within which the consent was sought and was given, and the appellant’s knowledge that sexualised touching did not form part of a professional massage.

153. The consent, it was submitted, must be viewed within the scope of the professional relationship between masseuse and client and could not be construed as consent at large for the appellant to “fondle” or “grope” the complainant’s breasts without any therapeutic purpose.

154. Counsel for the respondent submitted that it was “completely indisputable” that the appellant knew that “sexualised touching” did not fall within the scope of a professional massage. Further, there is an overwhelming inference that the appellant knew or was reckless that in the context of a professional massage, any consent that was given to the touching of an intimate area would be for that particular therapeutic purpose, not for a sexual purpose. The respondent submitted that there is no evidence that the appellant believed or knew that the complainant’s consent extended to “sexualised touching”.

155. The respondent submitted that sexualised touching included the cupping of the breast, fondling, and groping the breast without a therapeutic purpose, as well as touching of the nipple area. Sufficiency of Reasons

156. Counsel for the respondent submitted that the appellant asserted that the Magistrate gave inadequate reasons both in relation to the appellant’s recklessness as to the complainant’s consent, and as to why the appellant asked the complainant whether she would like him to massage the rest of her chest.

157. In relation to the appellant’s recklessness as to the complainant’s consent, the respondent submitted that the Magistrate provided sufficient reasons which enabled a proper understanding of the basis upon which the Magistrate found the appellant to have been reckless as to the complainant’s consent.

158. The Magistrate stated the following:

The defendant submitted that the fact that the defendant asked the question about massaging her chest and that the complainant said yes means that I would not be able to find that there was no consent to the touching. That question must be for me whether the complainant consented to the defendant touching her in the manner that I have now found he did.

The complainant says that she never gave consent to this type of touching. The defendant says that his question seeking permission was only for the outside areas and in between the breasts. Having rejected that this was the action performed, the question cannot be seen as seeking consent for the type of touching that occurred.

In considering whether the defendant was reckless as to whether the complainant was consenting to this type of touching, regard is had to the lack of training in the area and his own admission that touching the nipples and areola and cupping the breasts would be considered sexual. Having accepted that that is, in fact, the action that did occur, I am satisfied that the defendant knew, or at least was reckless, that the complainant had not consented to this type of touching.

159. The Magistrate’s reasoning process, it was submitted, was clear and logical. The Magistrate correctly identified that the issue of recklessness as to consent was regarding whether the appellant was reckless as to whether the appellant consented to the touching of her breasts, including her nipple and areola area, in a sexual manner. The Magistrate correctly found that the appellant, in seeking consent to massage the complainant’s chest, in the sense of the sides of her breasts and in between her breasts, did not equate to the appellant seeking consent to touch the entirety of the complainant’s breasts in a sexual manner. The Magistrate relied upon the fact that the appellant touched the complainant’s breasts, including the nipples and areola, in a sexual manner, despite the fact that he had never been trained to massage the female breasts and that he knew, on his own admission, not to cup breasts or touch nipples or the areola during a massage as it was sexual.

160. The respondent further submitted that the Magistrate was not required to make a finding, or to provide reasons, as to why the appellant asked the complainant whether she would like him to massage the rest of her chest. It was submitted that whatever the appellant’s motive in asking that question, his motivation had no bearing on his knowledge or recklessness that the complainant did not consent to his sexualised touching of her breasts. It was submitted that the motivation did not change the fact that the fact that the question to massage the complainant’s chest was asked in the context of a professional massage, that the appellant knew not to cup breasts or touch nipples or the areola area in the context of such a massage, and that the appellant did in fact do so. Good Character

161. Penfold J considered the use of good character in a criminal trial in Rawsthorne v Wilson [2018] ACTSC 342; 342 FLR 134 at [58]-[60]:

In a criminal trial, evidence of a defendant’s good character may be used by the fact-finder in two different ways:

(1) As a factor affecting the likelihood of the defendant having committed the offence with which he is charged (Attwood v The Queen (1960) 102 CLR 353 at 359); and

(2) In assessing the credibility of any evidence given by the defendant (R v Murphy (1985) 4 NSWLR 42 at 54)

The propositions set out at [58] above are fairly straightforward, and not ones that a magistrate would usually feel the need to remind herself about explicitly. Before me, counsel for Mr Rawsthorne conceded that courts generally retain a discretion as to whether evidence of good character should be referred to in reasons for a decision.

However counsel submitted, and I agree, that where evidence of good character has been given, and the defendant is to be found guilty despite the good character evidence, it would generally be appropriate for the good character evidence to be mentioned, however briefly, on order to dispel any concern that the evidence had been overlooked.

162. In this matter, it was submitted, the Magistrate went well beyond a mere mention of good character. The Magistrate outlined the good character evidence, correctly stated the ways of potentially using good character evidence, and carefully considered how much weight to attribute to it, stating:

The defendant also relies on his good character in this matter. He has no offences of a similar nature. He has remained employed in the same business for the last two years. He has taken action in the business to ensure clients understand consent and consent to touching specific areas and he has ensured to make it clear on that client form that there will be not touching of the erogenous areas, genitals and breasts.

I can use the evidence of his good character in two ways. Firstly, I can take that into account in determining whether the prosecution has proved the guilt beyond a reasonable doubt in that the fact that a person is of a good character alleged, and the second way I can use this evidence is that I can also use it to support his credibility, that a person of good character is less likely to lie or give a false account.

Having regard to the defendant’s limited experience and that he had only been employed as a masseur for two to three weeks, having only shortly completed his studies, he would have had very little opportunity to be in similar circumstances where he was giving a massage to a person. I’m assuming that his massage work whilst he was at CIT, whilst training, would have been supervised. I consider that the good character evidence does not assist me in considering the likelihood of him having committed the offence alleged.

In respect to the second use of good character evidence, everyone is initially a person of good character until they are not. I do not give much weight to his good character in supporting his credibility in that he is less likely to give a false account when talking to police.

163. The Magistrate, it was submitted, considered the probative value of the good character evidence on the likelihood that he committed the offence charged, appropriately justifying the lack of probative value on the circumstances of the case. Further, the Magistrate considered the probative value of the good character evidence on the appellant’s credibility, and attached some weight, albeit not “much weight”, to it. The Magistrate reminded herself that people commit crimes for the first time in accordance with a not uncommon warning which can be given to juries on the use of good character evidence (R v Trimboli (1979) 21 SASR 577 at 578; RJ v The Queen [2010] NSWCCA 263 at [55]).

164. The Magistrate, it was submitted, provided adequate reasons in relation to good character.

Conclusion to Respondent’s submissions

165. The respondent submitted that the appellant’s evidence, in respect of various aspects of the critical event, was inconceivable and did not make sense, and significantly detracted from his reliability and credibility as a witness.

166. It was open for the Magistrate, it was submitted, to reject the appellant’s evidence based on all five key reasons that her Honour gave. The respondent submitted that even if this Court is satisfied that only some of the five reasons were open to the Magistrate, these reasons were both separately and cumulatively sufficient to reject the evidence of the appellant.

Appellant’s submissions in reply

167. The appellant accepted that the question of whether it was reasonably open to the Magistrate to reject the appellant’s evidence on the issue of consent is connected to the related question of whether it was reasonably open to reject his evidence as to the conduct he engaged in during the massage.

168. However, it was submitted, that question is not answered by merely observing, as the respondent does, that the Magistrate found the complainant was touched by the appellant in the manner described by her. Such reasoning is contrary to authority: Liberato v The Queen (1985) 159 CLR 507.

169. In circumstances where the Magistrate was unable to make critical findings of fact contrary to his evidence, the appellant submitted that it was not reasonably open to reject his evidence as to either his actions during the massage or his state of mind. For example, the appellant, in both his record of interview and at the hearing, gave evidence that he asked the complainant “are you okay” after he started massaging her chest. The complainant, in her evidence, was unable to recall being asked such a question.

170. The Magistrate, in her reasons, referred to this evidence but did not make any finding on the issue. The appellant submitted firstly, that the most obvious reason why the Magistrate did not make such a finding was that she had a reasonable doubt about that part of the evidence, and secondly, that this Court would share such a doubt.

171. The appellant submitted that if there is a reasonable possibility that the appellant might have asked such a question, as well as the “whole” or “rest” question before massaging the complainant’s chest, the Court could not be satisfied beyond reasonable doubt that he knew or was reckless as to the lack of consent, given the overwhelming inference that he was checking with the complainant throughout the massage that she was consenting to his actions. Put differently, why would the appellant have asked such a question if he had already knowingly touched the complainant’s breasts without her consent?

172. The appellant submitted that the respondent’s submission, that the complainant’s consent to having her chest massaged could not have been understood as consent for her to be massaged in the manner that she was by the appellant, is clearly premised on the contention that the Magistrate’s finding that the appellant understood “chest” and “breasts” to be different was also open on the evidence. However, given that one of the circumstances upon which the Magistrate based that finding was the happening of an event which had not yet occurred, being the creation of the consultation form, it was submitted that such a finding was not open.

173. In relation to the general reliability of the appellant’s evidence, the appellant submitted that both the respondent and Magistrate erroneously approached this issue as an all or nothing proposition. Clearly, it was submitted, the Magistrate was required to consider whether her rejection of the disputed parts of the appellant’s evidence caused her to reject all of his evidence or only part of it. However, it was submitted, that whilst the Magistrate, at the start of her reasons, gave herself a direction in these terms, the question arises as to whether her Honour applied such reasoning given that she did not accept any part of the appellant’s evidence concerning the impugned part of the massage, even when it was not directly contradicted by the complainant, despite finding that the appellant presented “very well in Court”.

174. The appellant submitted that in the event that this Court finds error on the part of the Magistrate, the question then is not merely whether it was open to the Magistrate to be satisfied beyond reasonable doubt of the offence, but rather whether this Court is so satisfied, given the appeal is to be conducted as a rehearing.

Consideration

Insufficient Reasons

175. The appellant has asserted insufficient reasons. The following legal principles apply.

176. The obligation of a Magistrate in a summary hearing was summarised by Crawford J in Brooks v McShane (1996) 89 A Crim R 195 at 208 and cited with approval by Refshauge J in O’Connell v McMennemin [2014] ACTSC 112 (O’Connell v McMennemin) at [73]:

The learned magistrate had a duty, as part of the exercise of his judicial office, to adequately state the findings of fact and reasons for his decision for the purpose of enabling a proper understanding of the basis upon which the findings of guilt were reached: see Pettitt v Dunkley [1971] 1 NSWLR 376 at 382. That duty did not require laborious attention to detail and minute explanations of every step in the reasoning process that led to the eventual conclusion that the respective charges were proved. But the duty ‘at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues’: see Soulemezis v Dudley (Holdings Pty Ltd (1987) 10 NSWLR 247 at 259.

(emphasis added)

177. A failure to make the required findings of fact and to give adequate reasons, is an error of law: see O’Connell v McMennemin at [76]; Pettitt v Dunkley [1971] 1 NSWLR 376 at 382.

178. However, reasons, particularly in a summary jurisdiction, are not required to be elaborate or lengthy. They must address the grounds upon which the decision rests: O’Connell v McMennemin at [77]. Whether a failure to provide reasons amounts to an error of law is dependent on the circumstances of each case: O’Connell v McMennemin at [77].

179. I have carefully examined the reasons of the learned Magistrate. I reject the assertion that the reasons are insufficient. The reasons do not betray insufficiency. I accept the respondent’s submission on this ground as their submissions accord with my view of the reasons.

Legal Principles: verdict unreasonable or cannot be supported

180. As stated earlier, the major ground of this appeal is that the appellant’s conviction was “unsafe and unsatisfactory”. The term “unsafe and unsatisfactory” is no longer appropriate: see R v Giam [1999] NSWCCA 53 at [31]; Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33 (Featherstone and Bloxsome) at [31]-[40]. It bears repeating that the correct phrase is unreasonable or cannot be supported.

181. Therefore the respondent correctly submitted the ground of appeal to be determined was that the verdict was “unreasonable or cannot be supported having regard to the evidence”: Featherstone and Bloxsome at [31].

182. The principles applicable to a submission that a verdict is unreasonable or cannot be supported having regard to the evidence are well established.

183. The High Court in Pell v The Queen [2020] HCA 12; 268 CLR 123 (Pell v The Queen) stated at [39]:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilty.

(emphasis added)

184. Additionally, the High Court stated in Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 (Fennell v The Queen) at [81]:

Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability.

(emphasis added)

185. In M v The Queen [1994] HCA 63; 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ stated at 493-494:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

(emphasis added)

186. In Libke v The Queen [2007] HCA 30; 230 CLR 559, the High Court at [113] stated:

[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

(emphasis added)

187. While the authorities concern conviction appeals from jury verdicts, it is clear that the principles derived from these cases apply to appeals from the Magistrates Court: see BI v Moss [2018] ACTSC 278; NS v Hotchkis [2019] ACTSC 309; Vogel v Broomhall [2019] ACTSC 194.

188. The appeal is by way of rehearing: Fox v Percy. The principles in relation to this type of appeal were summarised by Refshauge J in Peverill v Crampton [2010] ACTSC 79 at [24]:

189. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong. 2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal. 3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court. 4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses. 5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal. 6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice. 7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.

190. In determining such an appeal, the Court must have regard to the significant benefit that the Magistrate at first instance has by reason of having seen and heard the evidence during the course of the trial: Fox v Percy.

Elements of the offence

190. The elements of the offence of act of indecency are as follows:

(1) That a person commits an act on another person;

(2) That the act is indecent according to the standards of morality and decency held by ordinary members of the community;

(3) That the other person does not consent to the act; and

(4) That the person was reckless as to whether that other person consented.

191. Proof of knowledge or recklessness is sufficient to establish the element of recklessness: s 60(3) Crimes Act.

192. Further, if the assault alleged:

…is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of 29 the assailant to obtain sexual gratification.

193. It was conceded by the appellant that if it were found beyond reasonable doubt that the appellant had deliberately touched the complainant’s nipples, something he denied, then the Court would be satisfied that his actions had been with the intention of obtaining sexual gratification: R v Schippani. On all the evidence, I do not find it established beyond reasonable doubt that the appellant deliberately touched the complainant’s nipples.

Conclusion of Consideration

194. Having made my independent assessment of the evidence, I am satisfied beyond reasonable doubt of the first, second, and third elements of the offence. In summary, that is, first, that an act occurred, involving the breasts, second, that the act of coming into contact with the breasts, is indecent, and third, that there was no consent. Therefore, the issue in this case is whether the fourth element of recklessness is established, that is, whether the appellant was reckless as to whether the complainant was consenting. Is recklessness proven beyond a reasonable doubt?

195. In assessing the evidence I have taken into account the advantages of the trial judge: see Pell v The Queen; Coughlan v The Queen [2020] HCA 15; 256 CLR 654; Fennell v The Queen. See also Smith (a pseudonym) v The Queen [2021] ACTCA 16; 16 ACTLR 91. Having considered all the evidence at trial, I am left with a reasonable doubt as to the guilt of the appellant.

196. At this juncture, I note the decision of R v Schippani. In R v Schippani, the Court dealt with a charge of act of indecency arising out of a beauty treatment or procedure known as a “Brazilian Wax”. Justice Penfold stated, at [55]-[56]:

This is a case in which the conduct complained of is inherently highly susceptible to misinterpretation, and it is possible that the two participants in an incident of this sort

29 R v Schippani at [56] quoting R v Harkin (1939) 38 A Crim R 296 at 301. could quite honestly report entirely difference perceptions of how the beauty treatment was administered. This gave rise to various difficulties.

197. These observations are, to my view, relevant and apposite to the facts of this case.

198. In my view, the reasonable doubt concerning recklessness arises from the combined force of the following six matters of evidence.

199. First, the appellant asked the complainant “do you want me to do the rest of your chest?” or “do you want me to massage your whole chest?”. It was conceded there was no material difference between the phrases “massage your whole chest” or “rest of your chest” (T26.25-30).The complainant said “sure” (QA4, pg 2).

200. Second, the complainant said that the period of time from when she was exposed to when she was covered again was approximately 10 to 15 minutes, however, the complainant also stated that she did not have a very strong awareness of time. In cross-examination, the complainant agreed that her memory of the event is not 100%, but that she could recall the major aspects. She later clarified that her memory was probably 80 or 90%. The complainant agreed that the appellant did not massage her breasts for 10 to 15 minutes, and that this time estimate included the massaging of her stomach and her hips. The complainant agreed that an estimate of 5 minutes, in total and combined, could be accurate for the massaging of her breasts.

201. Third, in the pre-recorded interview with police the complainant said that the appellant touched “my nipples or the area with the nipples” (QA4, pg 3). In cross-examination, there was no “or”. The evidence was therefore unclear in this regard.

202. Fourth, the evidence of the appellant in relation to his reluctance to use the word “breasts” during the massage was not implausible and did not in my view adversely impact his credibility.

203. Fifth, the importance of the prior good character of the appellant in his criminal trial.

204. Sixth, this is a case in which the conduct is susceptible to misinterpretation. It is entirely reasonably possible on examining all the evidence that the complainant and the appellant have both honestly reported different perceptions of the treatment. In my view, that is a reasonable possibility in this case.

205. That is, it is a reasonable possibility that the appellant was giving truthful evidence when he testified that he believed the complainant had indicated consent to the massage he undertook.

206. Finally, were the standard of proof the civil law standard of the balance of probabilities, the prosecution may arguably have succeeded; I am not called to make that determination. The criminal standard of proof beyond reasonable doubt is a higher standard. It is the highest standard of proof. The prosecution bears the burden of proving the case against the accused to the criminal standard. The prosecution has not met the requisite criminal standard.

207. In determining this case, the presumption of innocence must not be lost sight of. It is the principle that a person is presumed to be innocent unless and until the prosecution proves guilt beyond reasonable doubt. In a criminal case, the prosecution is required to prove the case beyond reasonable doubt and, if there is reasonable doubt, the accused cannot be convicted. The prosecution is not required to prove the guilt of the accused “beyond any possible doubt” but beyond reasonable doubt: R v Sutton [2021] ACTSC 37 at [395] (R v Sutton).

208. Suspicion must play no part in my function as a judge of the facts. If a fact-finder feels that the accused may be guilty and even if a fact-finder feels that the accused probably is guilty, as long as the fact-finder has a reasonable doubt about the accused’s guilt on a particular charge, that fact-finder, be it a jury or a judge, must return a verdict of not guilty on that charge, according to law: R v Sutton at [396].

209. On the evidence, I must return a verdict of not guilty.

Costs

210. Pursuant to s 218(1)(b) of the Magistrates Court Act, this court has the power to make the same orders on appeal that could have, and should have, been made in the Magistrates Court.

211. The respondent conceded that, in the event that the appeal was upheld and an acquittal entered, the Court would make an order pursuant to s 244 of the Magistrates Court Act for the informant to pay the defendant’s costs for the proceedings that took place in the Magistrates Court.

212. I therefore order costs pursuant to s 244 of the Magistrates Court Act for the informant to pay the defendant’s costs for the proceedings that took place in the Magistrates Court.

Orders

213. The appeal is upheld and the finding of guilt is overturned.

214. The informant is to pay the appellant’s costs of the proceedings in the Magistrates Court in an amount agreed by the parties pursuant to s 4(1)(b) of the Magistrates Court Regulations 2009, or, in default of filing an agreement under s 5 of that Regulation within 6 weeks of the date of this order, in an amount assessed by the Registrar in accordance with the scale of costs as applied under s 4(3)(b) and (c) of the Regulations.

I certify that the preceding two hundred and fourteen [214] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas- Karlsson

Associate:

Date: 13 January 2022