Behi v The King

[2024] NSWCCA 89

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Behi v R [2024] NSWCCA 89

Hearing dates:

12 June 2024

Date of orders:

16 August 2024

Decision date:

16 August 2024

Before:

Ward P at [1]; Campbell J at [420]; Button J at [422]

Decision:

1.   Extend time for filing notice of appeal to 1 February 2024.

2.   Grant leave to appeal.

3.   Dismiss the appeal.

Catchwords:

CRIME – Appeals – Appeal against conviction – Exclusion of evidence under s 293 of the Criminal Procedure Act 1986 (NSW) – Whether evidence of sexual experience of complainant at about the time of the commission of the alleged prescribed sexual offences – Whether evidence of sexual experience of complainant forms part of connected set of circumstances in which alleged prescribed sexual offences occurred – Evidence not forming part of such circumstances

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where offending occurred at applicant’s chiropractic studio – Where complainant has limited grasp of English – Where complainant took contemporaneous notes – Alleged inconsistencies between notes and other evidence – Where inconsistencies explicable – Verdict reasonably open to jury on all counts

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 61KD, 578A

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Procedure Act 1986 (NSW), ss 3, 130A, 292B, 293, 294CB

Evidence Act 1995 (NSW), ss 41, 55, 56, 102, 103

Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5, 4.15

Cases Cited:

Adams v R [2018] NSWCCA 303

AK v The Queen [2022] NSWCCA 175

ARS v R [2011] NSWCCA 266

AW v R [2023] NSWCCA 92

Chia v R [2021] NSWCCA 51

Cook (a pseudonym) v R [2022] NSWCCA 282

Cook (a pseudonym) v The King [2024] HCA 26

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25

Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

GEH v R [2012] NSWCCA 150

Greenhalgh v R [2017] NSWCCA 94

Harper v R [2022] NSWCCA 211

Hayne v R [2022] NSWCCA 11

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248

Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7Lee v R [2023] NSWCCA 70

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

Maughan v R [2020] NSWCCA 51

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Park v R [2023] NSWCCA 71

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Picken v R [2007] NSWCCA 319

Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44

R v Basha (1989) 39 A Crim R 337

R v Burton [2013] NSWCCA 335

R v Charbel Rahme [2004] NSWCCA 233

R v Morgan (1993) 30 NSWLR 543

Rao v R [2019] NSWCCA 290

Restricted Decision [2023] NSWCCA 223

Taleb v The Queen [2015] NSWCCA 105

Taylor v The Queen (2009) 78 NSWLR 198; [2009] NSWCCA 180

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16

Zhou v R [2021] NSWCCA 278

Category:

Principal judgment

Parties:

Riaz Behi (Appellant)
Rex (Respondent)

Representation:

Counsel:
J Stratton SC with T O’Rourke (Appellant)
A Bonnor (Respondent)

Solicitors:
Sirius Law Pty Limited (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/00223146

Publication restriction:

Publication of any matter which is likely to lead to the identification of the complainant is prohibited (s 578A of the Crimes Act 1900 (NSW))

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal Jurisdiction

Date of Decision:

21 March 2022

Before:

Huggett DCJ

File Number(s):

2019/00223146

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 21 March 2022, the applicant was convicted by a jury of thirteen counts of sexual offences relating to a chiropractic patient on various dates between 31 January 2019 and 4 April 2019 contrary to ss 61KD(1)(a) and 61J(1) of the Crimes Act 1900 (NSW) following a trial before Huggett DCJ (as her Honour then was). On 27 June 2022, the applicant was sentenced to an aggregate term of imprisonment of 9 years, with a non-parole period of 5 years, 6 months to date from 20 March 2022.

There had been an earlier trial commencing 22 February 2021 before Woodburne DCJ in which the jury was discharged after it was unable to reach a verdict. The first trial is of relevance in light of the applicant’s complaint as to a ruling made in relation to the inadmissibility of certain evidence under s 293 of the Criminal Procedure Act 1986 (NSW) (now s 294CB) (Criminal Procedure Act) that carried over into the second trial.

The applicant sought leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) on two grounds: first, the trial judge erred in excluding the evidence pursuant to s 293 of the Criminal Procedure Act and, consequently, the trial miscarried as the jury were unable properly to assess the credibility of the complainant; second, the jury’s verdicts on the indictment in the second trial were unreasonable and unsupported by evidence.

The Court held (Ward P, Campbell and Button JJ agreeing), granting leave to appeal but otherwise dismissing the appeal:

1. Assuming that the complainant did perform sexual services in a professional capacity around the time of the offending, this would be evidence of sexual activity in which the complainant participated at “about the time” of the commission of (or at least some of) the alleged prescribed sexual offences, but it is not the case that those events formed part of a connected set of circumstances in which the alleged offences were committed. The effect of the additional requirement in s 293(4)(a)(ii) is that the operation of s 293(4)(a) is narrowed to near-contemporaneous events that are sufficiently integrated with the offending, such that the events are part of the circumstances of the alleged offending: [280]-[286] (Ward P); [420] (Campbell J); [422] (Button J).

   Cook (a pseudonym) v The King [2024] HCA 26; R v Morgan (1993) 30 NSWLR 543 considered.

2. Had error been established in relation to the exclusion of that evidence, in order to demonstrate that the trial miscarried as a result, the applicant would be required to show that the error or irregularity had been to his prejudice, i.e., that what occurred had the capacity for practical injustice or was capable of affecting the result of the trial. This focusses on the nature and potential impact of the irregularity and requires an assessment of all the circumstances of the trial and the demonstration of some connection between the relevant defect or irregularity and the outcome. In light of the low probative value of the excluded evidence, this could not have been established: [287]-[294] (Ward P); [420] (Campbell J); [422] (Button J).

   Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Zhou v R [2021] NSWCCA 278; Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36; Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16; AK v The Queen [2022] NSWCCA 175; AW v R [2023] NSWCCA 92; Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 considered.

3. In assessing the reasonableness of a verdict, the Court must determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offences for which he has been convicted. Here, it was open to the jury to convict the applicant of all thirteen counts. The inconsistencies in the complainant’s handwritten personal notes, the counsellor’s notes and the text communications are explicable by reference to other evidence, such as the complainant’s limited understanding of English. Further, the text messages between the applicant and complainant, insofar as they demonstrate an acceptance by the applicant of instances of sexual contact, were especially compelling: [392]-[393], [396], [414]-[417] (Ward P); [421] (Campbell J); [422] (Button J).

   M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 cited.

JUDGMENT

1. WARD P: The applicant (Riaz Behi) has sought leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against his convictions for sexual offences against the complainant. Section 578A of the Crimes Act 1900 (NSW) (Crimes Act) prevents the publication of any matter which is likely to lead to the identification of the complainant.

2. On 21 March 2022, the applicant was convicted by the jury of all 13 counts on which he had been arraigned (as described in due course) following a trial in the District Court before Huggett DCJ (as her Honour then was). There had been an earlier trial by jury before Woodburne SC DCJ commencing on 22 February 2021 (the first trial). That jury was discharged after it was unable to reach a verdict. The first trial is of relevance in light of the applicant’s complaint as to a ruling made in the first trial as to the inadmissibility of certain evidence (which then carried through to the second trial). There was no application to reagitate that ruling in the second trial and no complaint is made as to the conduct of or directions given in the second trial.

3. The applicant pleaded not guilty to all counts on the indictment. Those counts fell into two groups: first, 8 counts of sexually touching of the complainant without her consent and in circumstances of aggravation, namely that the complainant was under his authority, contrary to s 61KD(1)(a) of the Crimes Act (counts 1, 2, 3, 5, 9, 10, 11 and 12), on various dates between 31 January 2019 and 28 March 2019; and, second, 5 counts of sexual intercourse with the complainant without her consent, knowing she was not consenting, in circumstances of aggravation, namely that she was under his authority, contrary to s 61J(1) of the Crimes Act (counts 4, 6, 7, 8 and 13 respectively) on dates ranging from 7 February 2019 to 4 April 2019, those counts variously comprising digital penetration of either the vagina or the anus and cunnilingus.

4. The offences occurred when the applicant, a chiropractor, was providing therapeutic massage treatment to the complainant, his patient, at the clinic in Sydney (“The Back Guys”) (where the applicant worked) (22/2/21; T 1.23-30). The complainant, who was 32 at the time of trial, was a Japanese citizen who spoke little English and had arrived in Australia in November 2018. (The complainant’s evidence was given with the assistance of an interpreter (25/2/21; T 25.38-26.15).)

5. The complainant, who suffered lower back and groin pain, attended several appointments with the applicant. The first of those appointments was arranged by a friend whom the complainant had met shortly after her arrival in Australia, Mr Frank Cotterell. Mr Cotterell found the applicant and his business on-line and attended the initial consultation at the clinic with the complainant, as well as some further consultations. Mr Cotterell had also paid for some, at least, of the appointments (25/2/21; T 5.12-13). Mr Cotterell was a witness at the trial, by which time he had had a falling out with the complainant (18/3/21; T 628.1-2).

6. Evidence concerning appointments in relation to which there were no alleged offences was tendered by consent as context evidence.

7. In the second trial, the complainant’s evidence was given by video recording of her evidence at the first trial. Witnesses otherwise gave evidence in the Crown case in person. The audio recording of the evidence given by the applicant in the first trial was also played, as well as that of some of the defence witnesses. Witnesses otherwise gave evidence in the defence case in person or by AVL.

8. On 27 June 2022, the applicant was sentenced to an aggregate sentence of imprisonment for 9 years, with a non-parole period of 5 years, 6 months to date from 20 March 2022. The head sentence will expire on 19 March 2031, and the applicant will first be eligible for release to parole on 19 September 2027. There is no application for leave to appeal against the sentence imposed on the applicant.

Grounds of Appeal

9. The applicant seeks leave to appeal on the following grounds:

Ground One:

(a) The learned trial judge in the first trial erred in excluding evidence pursuant to s 293 Criminal Procedure Act; or, in the alternative,

(b)   The trial miscarried by reason of the exclusion of the s 293 evidence because the jury were unable to properly assess the credibility of the complainant.

Ground Two: The jury’s verdicts on the indictment in the second trial were unreasonable and unsupported by the evidence.

10. An extension of time for the filing of the Notice of Appeal is required, since it was not filed until 1 February 2024, outside the time stipulated by r 3.1(3) and 3.5(2) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The applicant submits that in light of the matters set out in the affidavit sworn 24 January 2024 by the applicant’s legal representative, Ms Paula Teague, the necessary extension of time in this matter should be granted, particularly when consideration is had to the serious charges against the applicant, the late retainer of Ms Teague to act in this matter (as described in the affidavit), which resulted in the late briefing of counsel and Senior Counsel in this appeal, the detailed evidence at trial and the comprehensive submissions outlining the grounds of appeal. The Crown submits that there is no merit in the application and on that basis an extension of time should be refused.

11. Further, the applicant requires leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act in relation to ground 2, as this raises a mixed question of fact and law. The Crown submits that leave should be refused but, if leave be granted, the appeal should be dismissed.

Crown case

12. At the relevant time, the applicant was a chiropractor working in the abovementioned clinic in York Street, Sydney. Commencing on 15 January 2019, the complainant had a series of five appointments at the clinic with the applicant (the events of these first five appointments were uncharged, and only relied on as context evidence) (see the complainant’s evidence at 25/2/21; T 38). The complainant was assessed by the applicant at that initial consultation and communicated with him through the use of Google Translate (25/2/21; T 38.29-46.45).

13. It is not necessary here to summarise in any detail the complainant’s account of those first five appointments (25/2/21; T 47.13-84.28). It is, however, relevant to note that the complainant kept handwritten personal notes of her appointments with the applicant commencing on 15 January 2019 (Ex 18). The complainant’s evidence in this regard was that:

It is my personality to keep a record, not necessarily about something suspicious. This just in case. If anything happened in the future that is something I can refer to. But this time where here at the Court it just - the diary just became a part of my lessons for me to learn. So especially I was instructed to remove my clothing I experienced something weird and that was caused by opposite gender. So it was good lessons for me to learn. But the reasons I started to write my - create my diary was just in case anything would happen in the future, not necessary anything suspicious happen on the first day. (4/3/21; T 220.27-35)

14. Consistent with the reference in her evidence to being instructed to remove her clothing, the complainant’s note of the first session included that she was told to take her dress off and that “I didn’t know what to do as it is in Australia. I feel embarrassed but if necessary I need to bare it. He pulled my underpants to my hip. In Japan they normally provide paper undie … It must be normal”.

15. The complainant gave evidence that during the third appointment on 22 January 2019 she could feel the applicant’s fingers close to her anus (26/2/21; T 65.27). Then, after the fourth appointment, the complainant’s notes recorded concern as to the areas that the applicant was touching during the massage (her anus and her genital area inside her underpants). The notes included that “I feel the areas he was touching … I am worried but it may be an accident? I feel it is getting better”. In her oral evidence, the complainant said that she did not know what to say in English and did not want to be rude to the applicant (26/2/21; T 70.50).

16. At the fifth appointment on 29 January 2019, the complainant said that the applicant put her underpants down to the level “of pubic” and massaged her pubic area in a circular motion (1/3/21; T 83.31-34). The complainant’s notes recorded that she felt the areas the applicant was touching were expanding but that Mr Cotterell said he was a good doctor. The complainant recorded that maybe she was overthinking. The complainant’s evidence was that the applicant massaged her pubic bone, before enquiring about the scar on her lower abdomen. The complainant explained the removal of half of her uterus and lymph glands in treatment for cervical cancer, following which the applicant informed her that the treatment would change from the next session (1/3/21; T 83.312-84.28).

17. As noted, the evidence of those first five appointments was relied upon only for context purposes. The counts on the indictment related to incidents that occurred on most but not all of the remaining appointments, as follows.

18. Count 1 (aggravated sexual touching) related to the sixth appointment on 31 January 2019. The complainant’s evidence was that the applicant massaged her with oil, with his fingers very close to her [female] genital area and she thought they even touched her [female] genital area and her anus (1/3/21; T 87.32-36). The complainant’s evidence was that, at this appointment, the applicant instructed her (using Google Translate) to remove her underpants completely (1/3/2021; T 86), telling her that this session would be different, as she had had surgery for cervical cancer and the treatment he proposed was necessary to heal that (1/3/2021; T 86.38-45). The complainant said that in Japan removing pants absolutely never happened for a massage but she believed it was common in Australia (1/3/2021; T 87.1-3); and that the applicant told her the treatment would be better if she did, and she did not want to interfere with the treatment so she accepted that (1/3/2021; T 87.4-8).

19. The complainant said that, when she was on her back, the applicant massaged on the groin area, and touched her genital area a number of times (Count 1) (1/3/2021; T 87.49-50). The complainant felt humiliated (1/3/2021; T 88.7). The complainant recorded in her notes that she was shocked when the applicant told her she had to take off her underpants, but he said it was “necessary”, and the complainant noted “I have to do it even I don’t want to do as Doctor said so. He said he will use a towel to cover my body. He didn’t really use the towel very much, but must have been considerate maybe I am overthinking?”. The complainant recorded that Mr Cotterell said the applicant had very good reviews and “let’s believe him as a doctor” and that “I don’t have anyone to rely on so believe him”.

20. Pausing here, in cross-examination, the applicant said that he was entitled to use the title “doctor” in his practice as a chiropractor.. The title of “Dr” was on the certificates in reception (24/3/21; T 832).

21. The complainant gave evidence that she asked Mr Cotterell about the massage she received on 31 January 2019 (when she was asked to remove her underpants completely) and that Mr Cotterell said to the effect “Behi is medical doctor, and he has good review. Why don’t you trust him?” (1/3/21; T 89.31-41).

22. The applicant here says that there was no mention of the touching of genitals or the anus in the handwritten notes relating to this appointment (AT 65.14).

23. Count 2 (aggravated sexual touching) related to the seventh appointment on 5 February 2019. The complainant’s evidence was that the applicant again told her to remove her underpants. The complainant said that she lay on her stomach and the applicant massaged her lower back, buttocks, groin and thigh area with oil; and that she felt his hand touch her genital area as well as her anus while massaging in a circular motion. The complainant said that she turned to lie on her back and the applicant massaged her groin and thigh areas; and that the applicant’s fingers touched her genitalia, and massaged her clitoris and labia areas (Count 2) (1/3/2021; T 90-92). The complainant said she felt humiliated and shocked (1/3/2021; T 92.14).

14. The complainant’s evidence was that she wanted to ask the applicant why he was touching those areas, but could not do so in English; and that he called himself a “medical doctor”, giving necessary treatment, and she did not want to be rude towards a “medical doctor” (1/3/21; T 92.17-25; T 104.25-32). The complainant also said that the applicant had promised to make her feel better; that she was not familiar with massages in Australia; and that she thought she had to trust him (1/3/21; T 104.25-32).

15. The complainant recorded in her notes that that this was “[s]ame as the previous time”; and that she felt embarrassed and that “I don’t want to feel that way because he is treating me the best he can. However I feel embarrassed and if possible I want him to stop”. Again, the applicant says there is no reference to touching of the complainant’s clitoris and vagina in the notes made in relation to this appointment (AT 16.24-26).

16. Counts 3 (aggravated sexual touching) and Count 4 (aggravated sexual intercourse) both occurred on the eighth appointment, which was on 7 February 2019. The complainant’s evidence was that she removed her clothing and underwear, she lay on her stomach on the table, that the applicant massaged her legs, groin and buttocks, and that his hand touched her legs, genital area and anus, while massaging in a circular motion (1/3/21; T 105.28; T 105.40-43). The complainant said that she was tired that day, having not slept well; that she fell half asleep, and that she was woken by the applicant inserting one of his fingers into her vagina (Count 4) (1/3/21; T 105.46-106.4). The complainant said she was shocked, and her body actually jumped reactively; that she did not know what to say; and that it was brief, one second or less (1/3/21; T 106.3-14;17). The complainant said that the applicant then asked her to turn around and she lay on her back; that the applicant massaged her groin and the inside of her thigh; and that his fingers touched her genital area (her vagina, labia and clitoris) (Count 3) (1/3/21; T 106.32-33; T 106.46-107.15).

17. The complainant said that she wondered why the applicant touched those areas but again said that she did not know how to ask in English and did not want to be rude. The complainant said that she believed the applicant touched the areas accidentally, and she felt she was improving from the treatment so she thought he was doing something right (1/3/21; T 107.25-29; T 107.25-108.2).

18. The complainant’s notes recorded that “I was shocked he inserted his finger I was dozing and a bit spaced out I wanted to ask in English but what can I say? While I was thinking I lost the timing to ask him. It may have been an accident because of oil. It would be embarrassing if it was my mistake while he was treating me best he can. I can ask him nicely if it was in Japanese”.

19. Count 5 (aggravated sexual touching), Count 6 (aggravated sexual touching), and Count 7 (aggravated sexual intercourse) all related to the ninth appointment on 12 February 2019.

20. The complainant’s evidence was that the applicant directed her to remove her clothing, including her underpants, and to lie on her stomach; and that, while he was massaging her thigh towards her groin, she felt his hands touching her anus and then felt him put his finger inside her anus (Count 7) (1/3/2021; T 111.15-32; T 112.1-4; 27-32). The complainant’s evidence was that she was shocked but it was brief; and she thought it was an accident (1/3/2021; T 111.36-37).

21. The complainant said that she turned around and the applicant massaged from her thighs upwards, moving through her “female genital area” by touching, and massaged near her female genital area “in concentration”, making circular motions; and that his hand stopped near her clitoris and he massaged her clitoris; and that the applicant put his finger, on his other hand, in her anus (Count 6) (1/3/2021; T 112.6-19; T 113.24). The complainant said she was shocked; that while she still respected and trusted the applicant at that time, she did not know the purpose of this touching; and that she had to think, as she had knowledge of massages and the clitoris was not an area to be massaged for the purpose in respect of which she was attending the clinic (1/3/2021; T 112.36-41).

22. The complainant said that she tried to compose a sentence in English to ask but before she did he asked in English to the effect of “how” and “feel”; that she said “stop” and “no”; and that he asked “why”, and she said, “Yes”. The complainant said that she wanted to know why he was doing what he was doing, and asked him “why”; and that he asked whether or not she wanted him to stop, and she responded “yes, yes, yes” (1/3/2021; T 112.36-113.5-12). The complainant said that the applicant asked “why”, and put both hands on her abdomen, put his face on his fingers, looked up at her, lifted her bra and touched her breast (Count 5) (1/3/2021; T 113.26-36).

23. The complainant said that the applicant used Google Translate on his phone to say “The type of massage I’m giving you is not ordinary regular massage”; and that she used her phone to say that she wanted a regular massage and not “this kind of massage” (1/3/2021; T 113.47-114.18). The complainant said that the applicant said he would “not … give the same massage again”, and there would be no need to pay extra fees (which she said confused her) (1/3/2021; T 114.20-24).

24. The complainant’s notes included:

I don’t want to write. Something happened, something I want to forget!! I had a period today. It was so hard to take my clothes and underpants off. It is for my treatment! I need to do it. I really wished that my English was better so I can talk. If I’m thinking in a Japanese logical way would it have happened to me? During massage he did something like foreplay I was shocked and panicked it isn’t massage there won’t be any pressure points where he was touching I need to say something... While I was thinking he asked “How is it? Can you feel it?” I asked him to stop. After that he put his hand on my stomach. I couldn’t move. He put his hands inside my bra and he put his face on my stomach and looking at my breasts. “Ha” I feel sick, gross gross gross. He looked at Google “This is not a normal massage”. Its really gross!! I just smiled weary told him that “I don’t want this kind of massage” before I left the clinic…

35. The complainant’s notes in relation to this appointment also include that “I’m not that desperate to be touched by an old guy!!” and “I feel really, really pissed!!!”

36. The applicant says that there was no reference in the notes to the insertion of his finger into her anus and no mention of him touching her clitoris (AT 20.29-33). However, as extracted above, the complainant’s notes did record that something distressing had happened (“something I want to forget!!); and that during the massage the applicant “did something like foreplay” and that there would not be any pressure points there. This is consistent with the complainant’s evidence that the applicant touched her clitoris; and the distress could readily relate to the digital penetration of her anus (bearing in mind that the previous Count 4 included where digital penetration of the vagina was alleged was said to have been brief and that the complainant thought it may have been an accident because of the oil).

37. On 14 February 2019, there was the tenth appointment. The complainant made no allegation of offending on that occasion (1/3/21; T 114.45-115). The complainant said that the applicant massaged her groin area but he did not touch close to her genitals. The complainant’s notes recorded that she was not sure whether to go that day but that the applicant had promised he would not do it again, she had paid, and she felt she was getting better, so “I will keep going believing his promise”. The complainant recorded that “He really didn’t do anything today, previously he was touching the area very close. I felt scared that he was doing something he shouldn’t have been. If he keeps his promise and fixes my issue just doing a normal massage I will be happy”.

38. I interpose here to note that the applicant’s evidence was that there was sexual contact between him and the complainant on 14 February 2019 but he said it was initiated by the complainant (see below) (24/3/21; T 851.30-35). The applicant’s case was that this was the only sexual contact that occurred between the two (10/3/22; T 487.32).

39. The applicant said that, while massaging the complainant’s left hip flexor, the complainant put her left hand on his right hand, guided it on top of her clitoris, over her underwear and then proceeded to move his hand up and down for approximately 20 to 30 seconds. The applicant said that the complainant then stopped and the applicant removed his hand and said “we stop”, to which the complainant replied “stop, no more”, bringing up the towel to below her eyes and starting to giggle. The applicant said he laughed awkwardly and repeatedly said “we shouldn’t have done that”, to which she replied “why?”. The applicant said he replied “I don’t know”. The applicant said there was a small awkward conversation via Google Translate, where he said “are you okay?” and the complainant responded on her phone. The applicant said that, to make light of the situation, he wrote “feel more relaxed now!” and the complainant laughed (23/2/21; T 782.36-784.33).

40. There was in evidence a series of text messages between the applicant and the complainant on 14 January 2019 prior to the appointment that day, in which the complainant having informed the applicant she would be late to the appointment and, after some communications about recording, the applicant replied “It’s ok, don’t worry, see you at 3.40 x”. The applicant explained “x” as a mistake on the basis that he habitually texted his wife this way (see Ex D) (24/3/21; T 854.37).

41. Count 8 (aggravated sexual intercourse) related to the eleventh appointment on 19 February 2019. The complainant said that she lay on her stomach and the applicant placed a towel in her underpants and then pulled her underpants down to massage her; and then instructed her to lie on her back, which she did, and to remove her underwear, which she did not. The complainant said that the applicant said that “This is necessary things to do” and removed her underpants himself. The complainant said that the applicant massaged her, including her vaginal area, and that he massaged her genital area and her clitoris in a circular motion. The complainant said that the applicant put his finger in her anus (Count 8) (2/3/21; T 124.45-126.37).

42. The complainant said that she was very shocked, and panicking, and that in her panic she “was not really sure what’s going on. What is it really is? I was very much confused …. I told him not to touch those areas. He said he promise not to do that but he did” (2/3/21; T 126.47-127.3). The complainant said that at some point, the applicant asked “do you want me to stop” (she understood the words “want” and “stop”); and that she said “yes, yes” a number of times (2/3/21; T 127.4-10).

43. The complainant said that the applicant later used Google Translate to the effect that he was humiliating himself, had never done something like this in his “long career”, and that “I am very sorry to offend you or make you feel bad. I will never do that again”, to which she says that she responded “I want you to give me just regular massage. I don’t want you to do towards me something like this what happened again today” and the applicant promised not to do it again (2/3/21; T 127.27-33; T 127.37-43). The applicant says that the evidence of the Google Translate entries from that day do not resemble the communications of which the complainant gave evidence.

44. At this appointment, the complainant made another appointment. The complainant said that she wanted to think about it at home; and did not know how to make another appointment in English, and thought she might get in trouble if she did not make an appointment (2/3/21; T 128.14-19). (The applicant argues that this is contradicted by other evidence as to the scheduling of appointments in text messages.) (See cross-examination at T 496.45-50 about the cancellation and subsequent rescheduling of the appointment booked following this session.)

45. The complainant recorded in her notes:

Again. That idiot touched me again. When I think of it, it made me feel really irritated!!! It was the same way of touching as previously. Gross. But I felt so scared I couldn’t do anything and I couldn’t say anything. He said “Do you want me to stop?” I said “Yes, yes!” repeatedly. He promised “He will never do it again. Previously I had a period and I wondered if he thought I wanted him to stop because of it? I want to get better as soon as possible and I want to finish it as quick as possible”.

46. Pausing here, the reference to “the same way of touching as previously” is consistent with there having been touching of the clitoris and/or digital penetration of the anus on 12 February 2019 as the complainant has alleged.

47. The twelfth appointment was on 26 February 2019. The complainant said that the applicant massaged her back, buttocks, groin area and thighs. The complainant recorded that she had had a stomach ache, swelling, nausea and diarrhea; that she felt terrible just thinking about the chiropractor and that “A bit more to go. I want to go to another doctor but I can’t understand English… I don’t know what to do”. There was no allegation of any inappropriate conduct on this occasion.

48. The applicant’s records included an appointment with the complainant on 5 March 2019 but the complainant did not recall attending an appointment on that day. The applicant said that he knew the complainant had attended an appointment on 5 March 2019, from the records in Ex F and Ex L. The applicant said that he also had a recollection of that day because the complainant moved her appointment and they had a discussion over Google Translate about her stomach (24/3/21; T 793.40-50); and because his wife and daughter came there to meet Ms Michael (who worked in the clinic) who had taken a photo with his daughter while he was minding her (25/03/21 T944.20-46). (The applicant notes that the Crown did not put to him that the complainant did not attend on that day or that his evidence about this was incorrect or false.)

49. I note that in summarising the evidence of the respective counts, I have used the Crown’s enumeration of the appointments but from Count 9 onwards the numbering of appointments on the defence case should increase by one (i.e., the thirteenth appointment on the Crown case is the fourteenth appointment on the defence case and so on).

50. Count 9 (aggravated sexual touching) related to the thirteenth appointment on 7 March 2019. The complainant said that, during the massage on 7 March 2019, while she was on her stomach, the applicant pressed her tailbone or just below it, and then his fingers or hand touched her anus (Count 9). The complainant said that it was brief; and she believed it was an accident (2/3/21; T 138.1-4; T 142.30-39).

51. The complainant’s notes recorded “same as previous appointment” and that “[w]hen he is pressing pressure points on my buttock and back his finger slipped to my anus. Is his finger slipping? I don’t want to say too much so that he may misunderstand and start sexual harassment again”. Consistently, up to this point, the complainant was recording uncertainty as to whether the conduct was accidental – such as whether the digital penetration was his finger slipping with the oil; not as to what she perceived to be occurring.

52. Count 10 (aggravated sexual touching) related to the fourteenth appointment on 14 March 2019. The complainant said that, while the applicant was massaging her while she lay on her stomach, the applicant again touched her anus and “pushed my anus down” (Count 10) (2/3/21; T 146.39-40). The complainant’s notes recorded that her stomach remained unwell. The complainant also recorded that if she quit treatment she would not get money back, whereas after a bit longer it would be finished and that “I will be free from back and hip joint pains. Today his finger went into my anus… is he doing sexual harassment again? Is he doing it seriously? I need to think positively for a little bit longer”.

53. Count 11 (aggravated sexual touching) related to the fifteenth appointment on 21 March 2019. The complainant’s evidence was that this was similar to the previous appointment (2/3/21; T 148.32-36). The complainant recorded in her notes that her stomach had still not been well; and that “It is the same again. It is weird he put his finger into my anus. It is in Australia it’s very different to Japan. If I am overthinking I would feel really embarrassed and I would say something inappropriate to the doctor. I can not act unless it is confirmed. I want to finish it without any issues”.

54. Count 12 (aggravated sexual touching) related to the sixteenth appointment on 28 March 2019 in which the complainant said that the applicant touched her anus (2/3/21; T 152.10-14). The complainant said that the applicant instructed her to turn over, which she did; that he indicated he wanted her to remove her underwear, or that he wanted to himself, then grabbed it and removed it (2/3/21; T 153.5-12). The complainant said that the applicant massaged her groin and thigh, and then bent her legs up similar to changing a baby’s nappy, with her anus and vagina exposed (2/3/21; T153.14-20) and that she felt something soft touching her anus and felt that the applicant had used his tongue to lick it (2/3/21; T 153.21-25). The complainant said that she had been suffering from insomnia, had “lots of worries” and could not think clearly; and that when this happened, she could not “really think about what was going on but I had a sensation that something – something soft touched my anus. I was sure it was not a finger” (2/3/21; T 154.1-9).

55. The complainant said that she made a further appointment (on that occasion), again so that she could think about it at home (2/3/21; T 154.24-25). The complainant said that she had spoken with a friend, and did not know what to do if it happened again as she understood that unless she had evidence and “unless anything actually happened”, it would not be considered a “case” (2/3/21; T 154.25-30). The complainant also said that:

… especially I was not able to explain properly in English, and I’m a foreigner. I thought that no-one would believe me. [The applicant] is a medical doctor, and then I did not have evidence to say. So I thought that no-one would understand, accept what I was trying to say. No-one would believe me because I’m just a mere foreigner… My friend say that in Australia, sexual harassment issues are seriously considered. It’s more advanced than Japan… (2/3/21; T 154.32-41)

56. The complainant said that she did not “really see what happened”, and could not “really tell what was going on”; and that she decided to “put up with all of these matters”, as the applicant was still giving her treatment and she (or Mr Cotterell) had paid for the package of treatment (2/3/21; T 154.43-50). The complainant said that she also still held respect for the applicant as he was a doctor (2/3/21; T 154.46).

57. In the complainant’s notes there was an undated entry (which the complainant attributed to the 28 March 2019 appointment) (17/3/21; T 585.20-27), which recorded that, when she hesitated to take her underpants off, the applicant took them off even though she said “No! No!”; that the applicant said it was necessary; and that she was worried she had angered him by doubting him. The complainant recorded that the applicant’s finger went into her anus. The complainant wrote that she was “spaced out” due to lack of sleep and that “When I was stretching as usual, without underpants, I felt that he licked my anus!! But I couldn’t see and I couldn’t determine as it was so quick. If he’s done it that is terrible! He may not have done it? But I think he did it. If I can’t confirm I can’t sue him! But I think he did it”.

56. Count 13 (aggravated sexual intercourse), related to the seventeenth (and final) appointment on 4 April 2019. The complainant said that the applicant said it would be a different type of massage, and that he showed her something that he called “a vibrator” (3/3/21; T 169.25-27). The complainant said that she was scared, and could not really see it as her glasses were off and she had very poor vision (3/3/21; T 169.28-30; T 170.30-34).

57. The complainant said that the applicant removed her bra hook and used the vibrator on her lower back, back, buttocks and groin areas while she lay on her stomach; and that he said something about her underwear, then she grabbed her underwear and said “no” (many times), but he grabbed it himself and removed it (3/3/21; T 169.40-43; T 169.48-170.25). The complainant said that she was very shocked that the applicant removed her underwear and hoped the session would finish as soon as possible (3/3/21; T 171.20-26). The complainant said that in the massage, the applicant pushed around her tailbone and pressed down which pushed down her anus (3/3/21; T 171.30-32). The complainant said that the applicant then told her to lie on her back; that she put on her bra but was still not wearing underpants; that the applicant did not cover her body with the towel, and applied the machine on her thigh and groin, then on the scar from her cervical cancer surgery which was very painful (3/3/21; T 171.44-172.5).

58. The complainant said that the pain meant that she could not project her voice, and she did not know how to communicate in English, so she grabbed the machine attempting to communicate “just stop”; and that the applicant smiled, like a sneer, and asked how she felt. The complainant said that she said “painful”, and he stopped the machine (3/3/21; T 172.5-10; 15-20). The complainant said that the applicant gave the impression that nothing was wrong, and massaged the complainant then stretched her legs (similar again to changing a baby’s nappy). The complainant said that she saw the applicant’s face very close to her female genital area, then he licked her vagina (Count 13) (3/3/21; T 173.15-21).

59. The complainant’s notes recorded that she had said “No” about her underpants “but it wasn’t accepted”; that she felt scared but that “it will finish soon, I thought I would put up with it. I can’t understand English I can’t go anywhere else”. The notes recorded the use of the vibrator, and that he licked “the front”; that she heard the sound of his mouth opening, and “there was his head”; and that she thought that if he licked her she would kick his head but “I couldn’t speak when he actually did it. I felt scared I didn’t know what to say. Go home quickly, I didn’t want him to know I was scared”. The complainant recorded that she was angry, and questioned what to do.

60. Pausing here, the applicant’s evidence was that Mr Cotterell attended the business before the consultation with the complainant on 4 April 2019, informing him that he and the complainant had broken up, and asking him to give the complainant a letter, which included a request that the complainant repay the money owed to him, in regard to which she had only paid around $600 (18/3/21; T 604.30-31; 24/3/21; T 816.18-40). The applicant said that he gave the complainant the letter after the appointment on 4 April 2019 (24/3/21; T 817.50-818.15).

5 April 2019 text message

63. There were in evidence various documents recording text messages or communications between the applicant and the complainant. Exhibit D was a series of photographs taken by police of text messages between the applicant and complainant from the complainant’s phone. Exhibit G was a schedule of text message communications between 6 and 28 February 2019. Exhibit H was a schedule of text messages between 4 April and 12 April 2019.

64. Exhibit L was an extraction report of some messages between the applicant and complainant, and of the Google Translate history of messages taken from the applicant’s phone (some of which had been deleted and some where the text was no longer returnable).

65. On 5 April 2019 (the day after the final appointment), the complainant texted the applicant asking “[d]id you lick my body yesterday? I want to know what you want to have sex with me” (see Ex D; Photo 7; Ex H).

66. The applicant replied, saying: “… I don’t know whether you made a mistake, or it was incorrectly translated. No, I didn’t lick your body. When did it happen?”.

67. Significantly, in my opinion, the applicant then sent a message “I think your [sic] very attractive. I don’t intend to get something from you or take something from you. I apologise if I made you feel uncomfortable” (Ex H).

68. In a further message on 5 April 2019, the applicant said “[c]an you tell me if you said it correctly or you said it in a different way? I am extremely confused”; “Or we can talk about it in our next appointment, can you explain it to me?” (Ex H).

69. The complainant responded “[y]ou touched my crotch in February. You said it was not a cure to touch it. I have been thinking since then” (Ex D; Photo 8; Ex H). The applicant replied “[w]hat were you thinking?” and the complainant said “I want to know what you think” and “I wanted to tell you about it now”. After further messages, the complainant sent a message on 5 April 2019 “I do not understand, I wanted to know what you think. Ask again. Why did you touch my pussy? Why Valentine’s Day?”. The applicant asked if they could talk about it in person (Ex D; Photo 11; Ex H). (Pausing here, this suggests that something of a sexual nature did occur on 14 February 2019. The complainant could not explain the reference to Valentine’s Day in this message (15/3/21; T 485.38-T 486.10).)

70. The complainant had sent a message “I thought that I could talk in the mail because there is a language barrier” (see Ex D; Ex H).

71. On 11 April 2019, the complainant sent a message (Ex H), including the following:

I did not receive your treatment. I wanted you are acknowledged and apologise. You licked my pussy at last week’s treatment. Then I went to DNA testing. I understand the result today. If something comes out that is not my DNA, I will go to the police. In February you touched my genitals. At that time, you said you did not know why you touched it. You don’t want to have sex with me. Still it is strange to touch. It is abnormal. I’m scared of you. Last week you put vibrator on my stomach…

72. Pausing here, there is no evidence that the complainant did have a DNA test. The applicant gave evidence that he was very concerned about the complainant going to police, but not because of any concerns in regard to his DNA because there was no chance that his DNA would be on her vagina (25/3/21; T 866.23-34).

73. Significantly, the applicant replied in a lengthy message that “I would like to apologise to you when we meet at todays appointment. I thought you are attractive and I thought you thought I was attractive. However when you said you don’t, I did. Since then I haven’t done anything. I didn’t lick you previously, and I didn’t know how to do it. It’s impossible, it isn’t about who I am”. The applicant stated that he used the “equipment” to experiment with effective massaging. The applicant also said that he had a young family and “it will bring a lot of pain to them. I am sorry I beg you to have a talk so you can see I tried my best to make your back better”. The applicant said “since February at the time I haven’t done anything inappropriate”. The applicant also offered to return the balance of the treatment fees. The applicant’s final message on 11 April 2019 was asking the complainant “were you attracted to me?” (Ex H).

74. On 12 April 2019, the applicant sent the complainant a further text, including the statements that in February “I felt a very strong attraction to you. I felt that you felt similar feeling for me. I thought you were responding to my touch, I received further massage. After I touched you different places you seemed to be enjoying it – we laughed after that we laughed together I thought we may have sex. Therefore when you said stop and stopped I thought you were feeling the same I went beyond the professional boundary with my patient I was extremely confused and embarrassed. I have never done this before! During 20 years of working life I have never been a non-professional. When you asked me why I did it I said I don’t know. Because I didn’t know what to say. Also it’s hard for us to communicate. I really felt bad … I didn’t lick you I can’t understand why you thought I want to do it. After you told me no I didn’t do anything. I understand my non-professional act made you feel that bad. I’m sorry. I like you. I thought you liked me. When you said “no” I was embarrassed and regretted my decision I didn’t know what to say. After that I can see how you feel uncomfortable. However, after you said no in February I concentrated on your back….” (Ex H) (see also Ex L).

Complaint evidence

75. Evidence of complaint was given by Mr Cotterell, Margaret Stamboulidis, (the complainant’s host mother in Australia) and Kaoru Sato (a qualified psychotherapist and counsellor).

76. Mr Cotterell gave evidence that he was friends with the complainant but they had had a falling out and that the last time he had seen her was on 14 February 2019 (18/3/21; T 628.1-2; 2/3/22; T 262.10-20). Mr Cotterell gave evidence that they had communicated with each other face to face in English, and in written communications via Google Translate; that he would speak to the complainant in English, using short sentences, simple words, and repeating if she did not understand (2/3/22; T 252.45-253.8). Mr Cotterell gave evidence that he never had any difficulty communicating with the complainant (2/3/22; T 283.19-21).

77. Mr Cotterell confirmed that he had located the applicant online and said he had booked the first appointment and attended four to five appointments with the complainant until around early February (2/3/22; T 261.46-50). Mr Cotterell paid for the complainant’s first two appointments and paid for a treatment package of appointments, which cost $1,200.00 (2/3/22; T 279.7-8).

78. Mr Cotterell gave evidence that at the end of February 2019 he received a text from the complainant that she was feeling very uncomfortable with the way the applicant was touching her during treatments and that he had removed her underwear and that he had told her to trust the applicant because he was a doctor (2/3/22; T 262-263). (The Crown submits that the fact that Mr Cotterell and the complainant gave different dates as to when the complainant first told Mr Cotterell of her concerns — her evidence being that she first raised this on 31 January 2019, as noted above — is not material to the assessment of the complainant’s credibility and reliability.)

79. The complainant emailed Mr Cotterell on 4 June 2019 and told him that the applicant had continued to harass her sexually and she was going to report him (2/3/22; T 264).

80. Ms Stamboulidis, with whom the complainant resided from April 2019, gave evidence that the complainant came home one night at the end of June and seemed very upset and went straight to her bedroom; and that when the complainant came out she had tears in her eyes. Ms Stamboulidis asked her if she was okay and the complainant “burst out crying” and said that the chiropractor she had been going to had “touched me inappropriately” (1/3/22; T 192.50-193.20). Ms Stamboulidis did not speak Japanese, and would mainly converse with the complainant in English. Occasionally, one of them would write things down on the complainant’s phone or look up a word. Ms Stamboulidis gave evidence that the complainant was trying to speak English (1/3/22; T 193.30). Ms Stamboulidis’ recollection was that the complainant said “he touched me inappropriately” in English (see 1/3/22; T 193.24).

81. In cross-examination, the complainant denied that she understood the English word “inappropriate”; and said that when she was speaking with Ms Stamboulidis she was using Google Translate, and thought she probably activated the sound of the Google translator (4/3/21; T 215.8; T 216.30; T 215.49; T 216.38-40).

82. The third complainant witness was Ms Sato. Ms Sato is Japanese, speaks Japanese fluently and has a Masters degree in Japanese literature, which involved translating Japanese to English. The complainant attended Ms Sato for counselling at her Town Hall clinic from around 18 April 2019. The complainant spoke Japanese with Ms Sato (1/3/22; T 204-295.19).

83. The complainant told Ms Sato she had been sexually assaulted by a chiropractor she had seen about 17 times. Ms Sato said that the complainant told her she went along with it and that, around the seventh session, felt that the massage was getting a little bit too close to her vagina and anus; that the complainant told her that when she was lying face down or face up, depending on what she had been instructed to do, she felt a finger being inserted into her vagina and her anus and sort of jumped and looked at the practitioner to see what was going on (1/3/22; T 204-205; 207).

84. Ms Sato said that the complainant told her that she had given the applicant the benefit of the doubt until towards the end of the offending when she was sure it was not right (1/3/22; T 208.1-4). Ms Sato gave evidence that the complainant went to Japan for a week to ten days in the middle of May 2019, and that when she came back, she wanted to go to the police (1/3/22; 208.45-209.15).

85. Ms Sato prepared a summary in English of what the complainant told her just before they went to police in mid-June (Ex M) (AB 1635-1637). Ms Sato said that she typed the document during a session with the complainant who was telling her in Japanese what had happened, while referring to a notebook or diary that she had with her (1/3/22; T 208-211). Ms Sato did not see the contents of the notebook or diary to which the complainant was referring. (The complainant said that she had left her diary in Japan (4/3/21; T 224.15).)

Police evidence

86. On 18 June 2019, the complainant and Ms Sato went to police, taking the summary prepared by Ms Sato. The officer in charge, Detective Senior Constable Amy Champion (DSC Champion), gave evidence that she arranged for an accredited Japanese interpreter to be present when taking the complainant’s statement on 26 and 27 June 2019 (9/3/21; T 283.35-40). Later, DSC Champion arranged for Ms Junko Yamasaki to translate documents from Japanese to English (9/3/21; T 284.15.21).

87. Ms Yamasaki gave evidence that she was an accredited interpreter, with 20 years’ experience (9/3/22; T 177). Ms Yamasaki translated a number of documents from Japanese into English (tendered as Exhibits G, H and 18).

88. Relevantly, I note that Ms Yamasaki gave evidence that, when translating a word that did not directly translate into English, she would take the best word that she thought would fit what the Japanese language was dictating (28/2/22; T 183.16-33).

89. DSC Champion gave evidence that she had attempted to contact alleged complainant witnesses in Japan (Ms Takeuchi and Mr Shariaska) by email but there was no reply (1/3/22; T 236.30-50).

90. DSC Champion gave evidence that during the execution of a search warrant of the applicant’s business premises, the applicant provided access to the complainant’s records from his laptop (tendered as Ex F) (1/3/22 T 232.14-25).

91. Police also obtained text messages between the complainant and the applicant by taking photographs of messages on her phone and had them translated (see 1/3/22; T 238; 28/2/22; T 177-179; Exhibits B, D, G, H). The applicant confirmed that the translations were text exchanges he had with the complainant (24/3/21; T 827.10-24).

92. Detective Senior Constable Lillyman (DSC Lillyman) gave evidence that the applicant had provided police with the medical and account records of the complainant (9/3/21; T 294).

93. Exhibit L was the extraction report from the applicant’s phone, which included Google Translate messages from English into Japanese. The wording of that message is slightly different from the wording as it appeared in Ex H but in substance was the same. DSC Lillyman gave evidence that the complainant was asked to provide her phone for a Cellebrite download, but that she had declined because her phone would be retained by police for a period of time (2/3/22; T 315.20-25).

94. DSC Champion gave evidence that the applicant was offered an interview, but exercised his right to silence (9/3/21; T 286.44). DSC Champion gave evidence that the applicant had no prior criminal history (1/3/22; T 242.30). DSC Lillyman also gave evidence that the applicant did not have any prior criminal record (2/3/22; T 293.36).

95. The Crown prosecutor tendered s 191 agreed facts without objection (Ex N). Those agreed facts went to what experts in chiropractic massage had agreed as to the chiropractic treatment of back and groin pain. Relevantly, those agreed facts included that (9) the massage of pubic bones which lie at the front of the pelvis or the anus or vagina area are far removed from therapeutic treatment in cases of back pain; pelvic pain or groin pain; and (10) the insertion of a thumb or finger into a woman’s vagina or anus or the licking of the vagina or anus is completely inappropriate and unacceptable as a chiropractic treatment under any circumstances and is not associated with any legitimate treatment; and that the placing of hands by a chiropractor inside a bra has no clinical justification.

Defence case

96. The applicant gave evidence in the first trial, which was recorded, and the audio recording was played at the second trial in the defence case.

97. The applicant gave evidence as to his qualifications as a chiropractor; that he had started practising in 2001, and had then practised for 18 years, until he was suspended pending resolution of the charges. The applicant had never had any conditions, notations, reprimands or undertakings associated with his registration, had carried professional indemnity insurance for the period of his registration and was subject to verification as a practitioner by AHPRA (22/3/21; T 701.30-T 702.15).

98. The applicant’s evidence was that his treatments involve a technique called spinal decompression therapy, a variety of soft tissue techniques, including trigger point therapy, which involves releasing a focal spot within a muscle that is hypertonic or tense, with direct pressure, and cross­friction massage, during which he would use oil to reduce the friction. The applicant explained the use of the decompression table, interferential machine (or “cupping”) and pelvic blocks. The applicant also explained the process for initial consultations and assessments of new patients, including procedures used for obtaining consent for various types of treatment and the assessment (22/3/21; T 702-703; T 708.31-50).

99. The applicant described his usual patterns of treatment of the complainant, including the use of the decompression table, doing a drop-piece adjustment, massage, wing-lift adjustment and then showing stretching exercises to be done at home (22/3/21; T.723-725).

100. The applicant’s evidence was that, on Tuesdays and Thursdays, when the complainant would attend there was a nutritionist intern, and a nutritionist, working at the clinic as well as the applicant; that the applicant would see 25 to 50 patients per day, with an average of 30 to 35; and that there were two treatment rooms, with one patient in each. The applicant said he would switch on the decompression table for 7 to 10 minutes for one patient, then attend to the other patient, and go back and forth between them (22/3/21; T 706.35-40; T 707.26-708.7).

101. The applicant gave evidence of the initial appointment consultation and assessment with the complainant and Mr Cotterell, then the physical assessment of the complainant, including the use of a hand-held massager, which the applicant stopped shortly after (23/3/21; T 735.20; T 738-753).

96. The applicant denied all allegations of non-consensual sexual contact. In particular, the applicant denied having told the complainant to undress or having pulled her underwear and towel down in any session (see 23/3/2021; T 754; 758; 762; 764; 777; 778-779; 785-786; 787-788; 24/3/21; T 799-801; 803; 805; 820-821); ever working close to the complainant’s anus in a way that his fingers touched her anus, or touching her anus (23/3/21; T 765; 771; 778-779; 780; 24/3/21; T 799-801; 803; 805; 807-808; 810); touching the complainant’s genital area, vagina, clitoris or labia in any session (23/2/21; T 765; 774; 777; 786-787); lifting the complainant’s bra to look at and touch her breasts (23/3/21; T 780); stretching the complainant’s legs while she was not wearing underpants or moving her legs in a position similar to a baby’s nappy being changed (24/3/21; T 806-807; 808-810; 823); and licking the complainant’s anus or vagina (24/3/21; T 810; 823). The applicant also denied that the complainant ever fell asleep or was half asleep in any of her appointments during massage treatment (23/3/21; T 77.20-50).

97. The complainant gave evidence that his massage treatment was very focused and that it would not have been possible for him accidentally to touch the complainant’s vagina or anus (24/3/21; T 801.17-20). The applicant also gave evidence that only one size towel was used in the appointments (23/3/21; T 742.41).

98. As noted earlier, the applicant said that the only sexual contact with the applicant was on Valentine’s Day 2019 and that this was at her instigation. The applicant gave evidence that, when the complainant moved his hand, he froze and did not know how to extricate himself without offending or rejecting the complainant. The complainant said he did not know how to end the situation in a way that was not offensive. The applicant said that he was particularly concerned in regard to the complainant’s response, because he was a practitioner and was male (24/3/21; T 851.30-T 852.5). (The applicant here points to s 292B of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) and the Bench Book direction and submits that his evidence as to the “freeze” response would not lightly be dismissed (10/3/22; T 471.10-25).)

99. In respect of the text messages in Exhibits G and H, the applicant gave evidence that in the messages with the complainant from 5 to 12 April 2019 he was initially trying to explain to the complainant and then to de-escalate a situation where she was making threats from 11 April 2019 to report his alleged licking of her during treatment the previous week, which he denied. The applicant said that he had offered to meet the complainant outside the clinic so that she would feel safe with people around, if that would make her more comfortable (24/3/21; T 827.30-35; T 871.22-26).

100. The applicant conceded that the code of conduct for chiropractors required the maintenance of adequate records, and stated that his records in regard to his appointments with the complainant were not “up to scratch”. The applicant said he had not been aware that the code of conduct outlined that trained translators and interpreters should be used, and agreed they were not used in his appointments with the complainant (24/3/21; T 839.1).

101. The applicant agreed that, in some circumstances, relationships with patients should end if they become ineffective, or compromised but that he did not end the professional relationship following the sexual contact on 14 February 2019. The applicant denied sexually exploiting the complainant or using his position to establish or pursue a sexual relationship (24/3/21; T 841.44; T 843.1-15).

102. In regard to the agreed facts (Ex N) the applicant agreed that on 15 January 2019 (the initial appointment) he did not give the complainant a private area to change, but said this was because she had started changing so quickly; and that he did not provide a gown, but stated he did provide a towel. The applicant gave evidence that he used bathroom towels (tendered as Ex 6) and did not use “hand towels” (24/3/21; T 844).

103. The applicant said he did not see the scar on the complainant’s abdomen until the fifth appointment, and otherwise did not notice what she would wear. The applicant gave evidence that, when the complainant was changing on the first appointment, he did not tell her to stop, because it was difficult to do so in English, he did not want to make her uncomfortable, and it was her choice, so he let it happen (24/3/31; T 844.22-25).

104. The applicant denied being sexually attracted to the complainant from day one, or at any time (24/3/21; T 844.15; T 849.38). The applicant maintained that he did not touch intimate areas (24/3/21; T 847.47-T 848.2). The applicant agreed that the “x” sent in the message to the complainant on 14 February 2019 was a “kiss”, but (as noted above) he maintained it was a mistake from habitually texting his wife. This was the only text message in which the applicant used an “x” (24/3/21; T 854.37).

105. In regard to Ex H (the messages on 5 April 2019 in which he had written “I think you’re very attractive. I don’t intend to get something from you or take something from you. I apologise if I made you feel uncomfortable”), the applicant gave evidence that this was because the complainant texted him “I want to know what you want to have sex with me”, which he thought was in the context of what had happened on 14 February 2019. The applicant said he thought her texts may be about how he had reacted, that she may think that he had rejected her or offended her, when she may have feelings for him. The applicant said he was trying to de-escalate the situation, saying “whatever” for her not to feel rejected and to calm down (24/3/21; T 855.40-47).

106. The applicant said that he sent the complainant the text messages asking to speak in person because he assumed the text message asking if he had “licked her body” was a mistake or was an incorrect message (24/3/21; T 856.5-10). The applicant said that he felt there was a very big chance of miscommunication, so he preferred to have a face to face conversation, even if it was through Google Translate (24/3/21; T 857.40-46). The applicant said that, with the subject matter being discussed, he was concerned that there was a large potential for misunderstanding, with “lick my body” being a translation or typing issue, and he did not want such a sensitive topic to be misunderstood (24/3/21; T 858.25-30). The applicant said they had not discussed or acknowledged what had happened on 14 February 2019 after it had happened, and he thought the text messages were the complainant coming back and wanting to know why he reacted the way he did. The applicant said it was an important topic which affected him strongly both professionally and in terms of his wife. The applicant said he preferred a conversation in person, so they could resolve it, and he could see if the complainant was being genuine (24/3/21; T 859.23-33).

107. The applicant said he repeated to the complainant that he liked and was attracted to her because he thought she had feelings for him and that, somehow, he had offended her. The applicant thought that the motivation for the complainant’s texts was the complainant feeling rejected, so he wanted to placate her so she would move on (25/3/21; T 872.7-13).

108. In regard to the message on 11 April 2019 (“However, you said no. I felt confused and silly. I didn’t know what to say. I am sorry many times and Feb”), the applicant said that he was “sorry many times” for what happened on 14 February 2019, not because he had sexually assaulted the complainant on a number of occasions. The applicant said he did not raise that the complainant had initiated the contact on 14 February 2019 as she was already threatening to go to the police (25/3/21; T 873.18; 876.40-41).

109. As to Ex L, the applicant explained that the message “I felt like you were responding to my touch...” was in reference to his having moved from the place that he would normally treat her, to a spot closer to her panty line in massaging her hip flexor, which he had not done before. The applicant felt that maybe the complainant had misinterpreted, and it may be why she had taken his hand (25/3/21; T 880.29-33).

110. The applicant did not think at any time that there was a criminal allegation, as it was a consensual act on 14 February 2019 that the complainant had initiated. The applicant said that he was not getting any sexual gratification from it but accepted he had participated in it (24/3/21; T 860.4). The applicant said that there was no personal interaction with the complainant over text message at all until after 4 April 2019, only conversations about appointments or her going to hospital. The applicant denied that he wanted to have sex with the complainant. The applicant said that he was concerned when the complainant stopped messaging, and was trying to re-engage her to resolve the matter. The applicant said that he was not concerned about the police or anything of that nature until he received that message from the complainant on 8 April 2019 (24/3/21; T 860.47).

Character Witnesses

117. The applicant called a number of character witnesses, some of whom gave evidence in person, some by AVL and some whose audio evidence from the previous trial was re­played. The witnesses included a number of long time patients of the applicant (whose identity it is not necessary here to record), as well as a friend, Mr Saroush Tallai. The applicant submits that the character evidence given by the defence witnesses was consistent as to their impressions of the applicant; emphasising that his female patients described him as respectful of their privacy and professional. One of the patients gave evidence that, while in the treatment rooms, when the applicant would go into the other treatment room she would be able to hear everything being said and done in the other room (26/3/21; T 980.10-13).

118. The applicant also called evidence from a nutritionist intern, Ms Rachel Lee, and a receptionist, Ms Nardine Michael, who both worked during the time the complainant attended.

119. Ms Michael gave evidence that she had worked for “the Back Guys” on Tuesdays from January to March 2019. Ms Michael recalled the complainant attending a few times with a man, with whom Ms Michael would chat and laugh. Ms Michael estimated that the complainant attended three times while she was there (25/3/21; T 958.35-36; T 960.33-35). (Pausing here, if the man who attended with the complainant was Mr Cotterell, this places the times when Ms Michael was working at the clinic and the complainant attended as being the initial appointments in respect of which there were no criminal charges; and it is not suggested that Mr Cotterell attended on 5 March 2019.) Ms Michael gave evidence that, while she never interrupted the applicant’s treatments, he had said that if there was ever anything she needed, to feel free to knock and come inside. Ms Michael gave evidence that the reception desk was right outside the treatment rooms and she was able to hear things coming from the rooms, including the applicant moving from one room to another, then the muffled voices of the applicant and patients in each room. Ms Michael never heard a female voice yelling out “no, no, no” or “yes, yes”. Ms Michael gave evidence that she thought 5 March 2019 was her final day. Ms Michael recalled the complainant being there, bowing and leaving. (This is the appointment that the complainant did not recall attending (25/3/21; T 960.25-29; T 962.5; T 962.22-27).)

120. Ms Lee gave evidence that she had worked at “the Back Guys” from December 2018 to March 2019. From the reception, with the treatment door closed, she could hear mumbled conversations in both the rooms. Patients were scheduled in 15 minute blocks, often side by side, with one patient in each room for 15 minutes (26/3/21; T 1008.42-46). Ms Lee recalled the complainant attending on two occasions with a gentleman, with whom she was conversing in English. Ms Lee gave evidence that the applicant came out with patients at the end of the appointments most of the time. The applicant spoke with the complainant after her appointments briefly, regarding prices and booking the next appointment. Nothing stood out about the complainant before she left reception, just that she bowed and said “thank you” quite often (26/3/21; T 1006.41-43; T 1008.23-24).

Closing Submissions

121. In closing submissions, the Crown submitted that the applicant had taken advantage of the complainant who was ‘‘vulnerable”. The Crown submitted that, at first, the complainant thought the offending might have been a mistake, or how things operated in Australia, in addition to thinking that the applicant was a medical doctor and that some of the things that initially occurred were legitimate treatment (9/3/22; T 440).

122. Defence counsel in closing submissions argued that anyone in the position of the complainant would recognise the applicant’s alleged conduct as “problematic”, and would likely resist or protest immediately, even if English was not their first language. It was submitted that it made no sense to say that the complainant thought it was all part of the treatment. Defence counsel for the applicant asked the jury to consider how the complainant perceived what was alleged, in light of her training and experience. (In this Court it is submitted that this submission would have carried greater weight had the jury been aware of the complainant’s work as a masseuse in Japan and in Australia (10/3/22; T 486).)

123. Defence counsel submitted that this was particularly so in light of the repeated alleged offending; and that the complainant’s justification that she had resolved to put up with it would not be accepted (10/3/22; T 486). The applicant’s evidence as to his treatment of the area above the sacrum was repeated to the jury in this context (10/3/22; T 492). It was further submitted that the complainant was not unfamiliar with the culture in Australia concerning massage, in light of two massage treatments given by other practitioners prior to the applicant, which also involved taking off her clothing (14/3/22; T 512). (The applicant here says that the jury would very likely have assessed these submissions differently had they been properly informed of the complainant’s work as a masseuse.)

Grounds of Appeal

124. Turning now to the respective grounds of appeal (set out above), the first relates to the exclusion by Woodburne SC DCJ in the first trial of evidence relating to the complainant’s employment in Australia in a registered brothel; which ruling was not reagitated in the second trial.

Ground 1: s 293 evidence

125. During the first trial, the applicant made two applications to cross-examine the complainant on evidence which fell within s 293(3) of the Criminal Procedure Act.

Section 293 of the Criminal Procedure Act

126. At the time of the first trial, s 293 of the Criminal Procedure Act (now s 294CB) relevantly provided as follows:

1.   This section applies to proceedings in respect of a prescribed sexual offence.

2.   Evidence relating to the sexual reputation of the complainant is inadmissible.

3.   Evidence that discloses or implies—

(a)   that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b)   has or may have taken part or not taken part in any sexual activity

is inadmissible.

4.   Subsection (3) does not apply—

(a)   if the evidence—

(i)   is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii)   is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,…

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission…

5.   A witness must not be asked—

(a)   to give evidence that is inadmissible under subsection (2) or (3), or

(b)   by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

6.   If the court is satisfied—

(a)   that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period—

(i)   had sexual experience, or a lack of sexual experience, of a general or specified nature, or

(ii)   had taken part in, or not taken part in, sexual activity of a general or specified nature, and

(b)   the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication.

the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.

127. There is no dispute that the charged offences were “prescribed sexual offences” within the definition in s 3(1) of the Criminal Procedure Act.

First s 293 application

128. The first application was made on the first day of the trial (22 February 2021).

129. The application was made in circumstances where defence had obtained information that the complainant had at relevant times worked in the sex industry in a registered brothel, the “Ginza Club” (see first s 293 judgment 24/2/21; T 6).

130. The application was initially brought under both ss 293(4) and (6). Later, in oral submissions, the application under s 293(6) was withdrawn and the application was continued pursuant to s 293(4) only (voir dire MFI 2, first trial, 19/2/21; 22/2/21; T 15.45-48).

131. The Crown tendered a voir dire bundle, tendered as voir dire Ex 1. The submissions on behalf of the applicant were marked as voir dire MFI 2, and the Crown submissions opposing leave were marked as voir dire MFI 3. Oral submissions were heard on 22 February 2021 (22/2/21; T 8.3; T 17.20).

132. Defence counsel submitted that the evidence sought to be led fell within s 293(4) as a result of the connection between the complainant and Mr Cotterell arising out of Mr Cotterell having located the applicant and sought out his services for the complainant, and then having paid for treatment for the complainant, in circumstances where Mr Cotterell and the complainant were connected through the complainant’s work as an escort. Counsel submitted that, but for Mr Cotterell’s involvement, the complainant would never have met the applicant (22/2/21; T 8-T 12.13).

133. The evidence that the defence sought leave to admit (see 19/2/21, T 7.38-10.46) was: evidence from Mr Cotterell that he met the complainant through her work as an escort (as detailed in his statement of 31 July 2019); the nature of the services between Mr Cotterell and the complainant, as referred to in his statement, namely adducing evidence as to the circumstances in which he met the complainant; evidence that the complainant had provided an address on her visa application that was the address of a registered brothel in Surry Hills; and evidence from the complainant concerning the rules and procedures of the escort work in which she was engaged.

134. In particular, the defence indicated that it was sought to establish (see voir dire MFI 2; 19/2/21) in submissions the following matters.

135. First, that the nature of the complainant’s legitimate employment within the sex industry (and at appropriately registered premises) would require her compliance with workplace rules and management guidelines regarding her dealings and interactions with clients and staff – as well as her rights relating to the same. Defence counsel indicated that what the defence sought to establish by that evidence was that “as a masseuse [the complainant] would know what proper boundaries are in delivering and/or receiving treatment”; “because of the analogy that one can draw between the nature of intimacy involved in work as a sex worker and the nature of intimacy involved in work as a chiropractor that it is likely that she would be operating in an environment where there were, for want of a better expression, rules of engagement, management rules, management directions, house rules and the like” (22/2/21; T 8.41-48).

The complainant’s evidence as to continuing to attend for treatment

355. The applicant says that a significant issue in dispute was the complainant’s evidence concerning why she continued to attend for treatment despite the offending. The applicant says that the complainant offered a myriad of reasons, including that: she thought the applicant was a medical doctor; he was performing medical practices; he had promised to make her better and cure her problems (1/3/21; T 92.17-25; 1/3/21; T 104.23-32); she was not familiar with massage in Australia; she was under an apprehension that there were cultural differences; she thought she could trust the applicant, that it would be rude to doubt him (1/3/21; T 104.23-32; 1/3/21; T 107.39-50); he touched her accidentally, that he did not really care about touching those areas (1/3/21; T 107.39-50); and she was improving, getting positive effects and was feeling better (1/3/21; T 107.48-50). The applicant again here complains that he was denied leave to lead evidence of the complainant’s work as a masseuse in Australia which may have raised doubts as to this evidence.

356. The applicant argues that the complainant’s evidence (concerning her not being sure about whether she was being offended against) appears only logical until the commission of Counts 5, 6 and 7 (12 February 2019, at the ninth appointment) during which appointment the complainant alleged that the applicant informed her that it was not a usual massage, that he had never given a massage of that kind before, and that she would not have to pay anything additional. The applicant notes that despite this, the complainant attended again for treatment on 14 February 2019, and again the following week, when Count 8 was allegedly committed against her. The applicant argues that, from then, on the complainant’s own account, the complainant must have know that what was occurring was not legitimate treatment. The applicant points out that on the complainant’s account the applicant had confirmed that his conduct was not part of the treatment and she had told him never to give her that kind of massage again. The applicant notes that despite this, the complainant went back, allegedly because the applicant promised he would not do it again.

357. It is submitted that the complainant’s evidence in this regard cannot be reconciled with her other evidence as to the reasons that she continued to attend for treatment on five more occasions, including: “I couldn’t make the appointment by myself”; “By that time, I was emotionally quite tired, and I couldn’t think clearly”; “But I had also paid for the package deal”; “He promised he wouldn’t touch me”; “Maybe he thought I didn’t want him to touch me because of my period, but this time I wasn’t having a period”; “I thought he got my message that I didn’t want him to touch me sexually”; “I had only a few sessions left”; “If I put up with it, I won’t have any problems”; “Once I finished the package, I would feel better”; “I wasn’t sure if it was treatment or sexual harassment”; “I was very distressed, I had sleepless nights, I was quite mentally fatigued”; “I wasn’t sure about a refund and talking would increase my stress”; “Apart from the incident I had so many things going on, I wasn’t feeling well including my stomach issue, sometimes suddenly needing to go to the toilet so even during normal everyday life I was having lots of stress”; “If I put up with this the problems will be fixed”; “I was having lots of stresses and so many things were happening so I couldn’t calmly make decisions when something is right or wrong”; “I couldn’t find another place for treatment”; “Even if I go somewhere else, I’d have the same treatment”; and “If the treatment was normal, it would be the same wherever I go” (15/3/21; T 496.35-44; 16/3/21; T 546.12-38).

358. The applicant says that the complainant’s evidence that she attended on 4 April 2019, after being offended against on 28 March 2019, because she was unable to make an appointment in English, is illogical and is undermined by the regular contact with the applicant by text message to re-schedule and set up appointments with him. Also, it is submitted that her evidence that she could not ask the applicant about his conduct is undermined by her doing so by text message following 4 April 2019. It is noted that the complainant’s other evidence was that she wanted to think about what had happened when she got home.

359. The applicant argues that the above reasons are contradictory, in regard to the complainant’s comprehension of what was occurring and the wrongfulness of it, but submits that even when the complainant (on her account) was aware that the alleged offending was not part of any legitimate treatment, the complainant continued to attend appointments with the applicant.

360. It is submitted that this evidence would have been even more inexplicable had leave been granted under s 293(4) for the adducing of the evidence as to the complainant’s masseuse qualifications from Bali, her work as a masseuse in Japan and Australia, and/or her work as an escort.

361. As to the applicant’s submission that the reasons the complainant gave for continuing treatments despite the sexual offending cannot be reconciled with her other evidence, the Crown submits that when the complainant’s evidence is considered in context, from the sense of discomfort she felt initially to the blatant serious offending on 4 April 2019, her evidence is compelling. The Crown points to the progressive narrative of events as showing the cultural, linguistic, social and poor health pressures that the complainant faced. The Crown says that the broad overview of events illustrates in general terms the complainant’s evolving thoughts. The Crown also refers to the fact that at times the complainant contemplated that the applicant may have touched her accidentally and points to the nature of the massages and the brevity of some of the offending. By way of example, the Crown notes that the penetration of her vagina on 7 February 2019 was for “one second or less” (1/3/21; T 105-106); and on 7 March 2019 his hand touched her anus for one to three seconds (2/3/21; T 137-138).

Omissions in the complainant’s evidence as to treatment

362. The applicant says that it became clear in the cross-examination of the complainant that her description of the applicant’s treatment omitted significant details. The applicant says that the complainant conceded that there were aspects of the treatment that she had not included or to which she had not referred (8/3/21; T 258.21-259.29; 8/3/21; T 263.10-264.3; 11/3/21; T 390.20-50; 11/3/21; T 396.34-48 ); noting that the complainant largely agreed with the consistent treatment routine outlined in cross-examination (8/3/21; T 259.27-263.13; 10/3/21; T 315.19-32; 10/3/21; T 322.10-333.19; T 391.40-43).

363. The applicant argues that the omission of some aspects of the treatment in her evidence undermines the reliability (“if not credibility”) of the complainant’s evidence. The applicant says that the complainant also resiled from aspects of her evidence concerning the treatment, conceding in cross-examination that the towels used were an average sized bath towel, as tendered as Ex 6 (10/3/21; T 333.21-38), bigger than the “hand towel” that she described in examination in chief (11/3/21; T 381.33-48). The applicant says that, following this concession, the complainant’s evidence as to the use of the towel was unreliable, in that she could not recall or did not remember clearly, but then would also deny propositions put to her (10/3/21; T 333.40-334.9; T 347.42-348.18).

364. The applicant further says that aspects of the complainant’s evidence were contradicted by the evidence of witnesses who worked at the applicant’s business. It is noted that there was no reference in the complainant’s examination in chief to any other treatment provided by the applicant or his leaving the room to attend to another patient in the adjoining room. The applicant refers in this regard to the evidence of the two witnesses who were working at reception (Ms Michael and Ms Lee) as well as the evidence of the patient referred to above. It is noted that the complainant gave evidence that during her treatment she could hear voices coming from the reception area, being the room next to the treatment room (26/2/21; T 67.20-24).

365. The Crown says that details of (lawful chiropractic) treatment received, or not received, and whether the towel used was described as a hand towel or average sized bath towel, were not material to establishing the offences. It is noted that the complainant said that the applicant never opened towels (1/3/21; T 88.27-28).

366. The Crown says that evidence given by Ms Lee and Ms Michael, and by patients, of what they could hear at times is also not significant to an assessment of whether the offending occurred. It is noted that they never interrupted the applicant while he was with a client with the door closed (even if, per Ms Michael, he gave them an opportunity to do so) (25/3/21; T 960); (26/3/21; T 1006). The receptionists could only hear mumbling or muffled noises from treatment rooms (26/3/21; T 1006), (26/3/21; T 1008-1009). It is noted that the complainant did not say she “yelled out” “no, no, no”; rather, she gave evidence that she “said no, no” many times when the applicant pulled down her underwear (3/3/21; T 170.25), (17/3/21; T 585.37-38), (18/3/21; T 605.41-43) and that some exchanges were on Google Translate.

Dispute on the Facts as to Valentine’s Day - 14 February 2021

367. The applicant refers to the dispute as to what occurred during the complainant’s appointment on 14 February 2019.

368. It is submitted that the case for the applicant as to the events on Valentine’s Day is corroborated by the independent evidence tendered at the trial in Ex L (Google Translate messages from the applicant’s phone) and the text messages between the complainant and applicant following the last appointment on 4 April 2019 (Ex H).

369. The applicant submits that the entries on 14 February 2019, having regard to the other messages in Ex L, are aberrant, and not consistent with the usual communication by the applicant, further lending support to the applicant’s evidence. The applicant says this is also corroborated by the text messages in Exhibits G and H, which commenced on 5 April, continued on 8 April, then 11 April and end on 12 April 2019. The applicant says that, aside from the question to the complainant as to whether the applicant licked the complainant in the appointment on 4 April 2019, and a later allegation that he did so, the only allegations or complaints in these messages are limited to references to “February” and, more specifically, to “Valentine’s Day”.

370. The applicant emphasises that there are no complaints in the messages referring to other time periods of the alleged offending, such as January or March; nor to any other types of alleged offending, such as other touching, insertion of the applicant’s finger or licking of the complainant. It is noted that the complainant agreed, in regard to the text messages that she sent to the applicant, that the only complaints in those messages were in regard to licking her body on 4 April 2019 and touching her “crotch” in February 2019 (15/3/21; T 489.1-10). Further, the applicant points out that despite what is contained in the text messages from the complainant, nowhere in her evidence did she allege that the applicant said to her that he did or did not want to have sex with her. It is submitted that the exchanges on this topic could only have been in reference to the evidence given by the applicant as to the events of Valentine’s Day, 14 February 2019.

371. The complainant’s evidence in cross-examination was that her reference in the text messages to ‘‘Valentine’s Day” was an error or mistake. The applicant says this should not be accepted, in light of the preponderance of the evidence, particularly in light of the complainant’s agreement in cross-examination that, when she texted the applicant ‘‘You touched my crotch in February”, she was referring to what she had said in the text message which stated “Why did you touch my pussy? Why Valentine’s Day?”. The applicant says that the complainant’s inability to provide a satisfactory response as to why she not only referred to Valentine’s Day, but also referred to “February”, gives rise to further concerns as to the reliability and credibility of the complainant’s evidence.

372. The applicant says that, aside from what appear to be references to the events of 14 February 2019, he otherwise denied any inappropriate behaviour (including licking the complainant). The applicant says that the only references made by him to anything having occurred are to a singular “act” in “February”. The applicant refers to evidence from his friend, Mr Tallai, that, shortly following the applicant’s arrest (and presumably before receipt of the evidence in the brief) he had lunch with the applicant, who told him that the complainant had taken his hand and “put it on her private parts” on 14 February 2019 (8/3/22; T 391.38). The applicant says that this evidence as to the detail and timing of this disclosure to Mr Tallai tends against the submissions by the Crown that the applicant’s evidence concerning 14 February 2019 was an invention by the applicant.

373. The Crown says that resolution of competing testimony of what occurred at the applicant’s rooms on 14 February 2019 was quintessentially a function of the jury in determining where the truth of what occurred that day lay, including by taking into account text exchanges, and explanations given for them. The Crown says that the jury was entitled not to accept the applicant’s explanation that an “x” at the end of the message on 14 February 2019 was an accident (the Crown points out that the applicant also did not tell Mr Tallai, his best friend, about any text messages) (8/3/22; T 385-396).

Dispute on the Facts as to Attendance on 5 March 2019

374. As to the dispute whether the complainant attended for an appointment on 5 March 2019, the applicant relied on Ex F, the complainant’s account statement from “the Back Guys”, which recorded that the complainant attended an appointment on 5 March 2019. The applicant said that the complainant had rescheduled an earlier appointment for that date. The applicant says that the accuracy of Ex F as a record of the complainant’s attendances was not challenged. Further, it is said that Ex L corroborates that the complainant attended that day. (Pausing here, I note that there are Google Translate entries on this date in Ex L.) The applicant says that the absence of any evidence in Exhibits G or H on 5 March 2019 lends support to the exchange in Ex L as having occurred during an appointment, as did the timing of the entries in Ex L. Ms Michael, one of the receptionist interns, gave evidence that she recalled 5 March 2019, which she thought was her last day. She also recalled that the complainant had attended on that date (25/3/21; T 963.28-964.29).

375. The complainant initially said that she did not remember going to the surgery on 5 March 2019 (15/3/21; T 500;16/3/21; T 507), and then denied that she had attended (16/3/21; T 515). The applicant submits that the complainant’s eventual refusal to accept that she attended on 5 March 2019 may be reflective of her realisation that the absence of any record of that attendance in Ex 18 undermined her evidence that she made near contemporaneous notes of each appointment.

376. The Crown says that it was no reflection on credibility or reliability that the complainant did not remember whether she went to work after five appointments, or that she did not remember attending an appointment on 5 March 2019. The Crown says that it ought not be assumed the “roster” showed that work fell on the same day it was sent, so there is no reliable record of when the complainant may have worked; and that the jury was best placed to assess whether the tone of the cross-examination at times was argumentative and so eliciting more steadfast responses.

The applicant’s Google Translate Messages Exhibit L

377. The applicant argues that Ex L, containing the Google Translate messages on the applicant’s phone, further undermines the evidence of the complainant and corroborates his own evidence. As noted above, Ex L only shows the communication from the applicant to the complainant. It records communications during the appointments and some communications then sent as text messages, duplicated in Exhibits G and H. As already noted, the applicant submits that an available inference in regard to Ex L is that it likely captures all of the communications from the applicant to the complainant from the second appointment onwards, due to the complainant’s purportedly limited level of English and the evidence of both the complainant and the applicant.

378. The applicant says that there are no communications within Ex L that can be said to be inculpatory or amount to an admission as to any of the offences and that they appear to have related to treatment, bookings for appointments and checks on the complainant’s health and welfare. The applicant says that none of the messages in Ex L appear inappropriate, apart from those which occurred on 14 February 2019. The applicant says that the fact that Ex L appears to reflect that the communication exchanges facilitated by Google Translate during the appointments could often be lengthy, undermines the complainant’s evidence that she was unable to express her concerns, questions or complaints to the applicant in regard to his alleged conduct.

The Timing of Complaint to Frank Cotterell

379. The applicant also raises the inconsistency between the complainant’s evidence that, after the appointment on 31 January 2019, she communicated to Mr Cotterell her concerns about the treatment and Mr Cotterell’s evidence as to the date of the complaint being at the end of February (after the falling out between him and the complainant on 14 February 2019) (2/3/22; T 262.22-T 263.50). The applicant says that the timing of the alleged complaint to Mr Cotterell in late February 2019, after his falling out with the complainant, lends further support to the applicant’s evidence that the only sexual contact with the complainant occurred at her instigation on 14 February 2019. (Pausing here, the precise basis for this submission is not clear.) Further, the applicant says this is consistent with the only appointment in which the applicant asked the complainant to remove her underwear being on 31 January 2019, when he used the technique for lymphatic drainage. It is noted that the only other complaint to Mr Cotterell occurred in June 2019.

The complainant’s level of English

380. The applicant also points to inconsistency as to the complainant’s level of ability to speak English.

381. The applicant points to Mr Cotterell’s evidence (see above) that he had no difficulties in communicating with the complainant in English, provided that he spoke slowly, which the applicant says is consistent with the evidence of Ms Michael and Ms Lee, who had observed Mr Cotterell only speaking in English with the complainant (25/3/21;T 959.46-960.19; 26/3/21; T 1003.33-48). The applicant also points to the evidence of the complainant’s host mother, Ms Stamboulidis, as to her communications with the complainant in English. It is submitted that the complainant’s denial that she said or could have said the word “inappropriately” to Ms Stamboulidis should not be accepted (1/3/22; T 193.24).

382. The applicant says that there was inconsistent evidence from the complainant as to her level of English at the time of the alleged offences (noting her evidence wavered from being that she has such limited English that she could not express herself at all, to at other times stating that that she communicated using the words such as “yes”, “no”, “stop”, “painful” and “sleepy”, and to having told to Ms Sato (as reflected in Ex M) in relation to Counts 5, 6 and 7, that she had said “why are you doing this to me?”). The applicant says that the complainant’s evidence as to her English ability vacillated throughout her evidence “to adapt to the evidence she was seeking to give at the time of the answer, and she downplayed her level of English ability”. The applicant says that this is undermined by the independent witness evidence and should not be accepted.

Reasonable doubt as to the complainant’s reliability and credibility

383. It is submitted that the identified deficiencies in the evidence of the complainant, demonstrated individually and cumulatively, give rise to reasonable doubt as to her reliability and credibility. It is further submitted that such a doubt is not able to be resolved by reference to the advantage enjoyed by the trial jury in the second trial (reference being made to what the High Court said in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39]). The applicant submits that, by comparison, his evidence was cogent, consistent and unshaken in cross-examination; that it was further supported by the independent evidence in Exhibits F, L, G and H. It is submitted that, at the very least, the applicant’s account is reasonably possible and, as a result, a verdict of acquittal should be entered. Even if the applicant’s evidence is put to one side, it is submitted that the Court could not be satisfied of the reliability and credibility of the complainant.

Crown submissions

384. The Crown submits that, on an independent assessment of the whole of the evidence at trial, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. In response to the matters raised by the applicant in relation to Ground 2, the Crown submits as follows.

385. The Crown says that the complainant readily acknowledged that her reference to Valentine’s Day in her text to the applicant that stated “I do not understand. I wanted to know what you think. Ask again. Why did you touch my pussy? Why Valentine’s Day?” was a mistake; and points to the complainant’s account of the applicant’s allegation that she had placed her hands over her underpants on Valentine’s Day (15/3/21; T 485.41). The Crown Prosecutor submitted to the jury that the applicant’s evidence that she instigated sexual contact that day was a poor attempt to explain the content of text messages (10/3/22; T 471.5). The Crown says that it was well open to the jury so to reason. The Crown says that the complainant was not “unable” to provide “a satisfactory response”; rather, that such a submission is but a characterisation that was open for the jury to reject (cf applicant’s submissions at [181]).

Advantage of the jury

386. Finally, the Crown points to the advantage of the jury in seeing and hearing the witnesses (albeit that the complainant’s evidence was by audio-visual recording). The Crown says that, to a degree, the extent of its advantage can be discerned from the transcript, such as witnessing her become increasingly upset as she gave evidence (2/3/21; T 150). The Crown says that it fell to the jury to evaluate the complainant’s evidence in light of the evidence of others and the jury was best placed to assess the complainant’s general response to cross-examination (citing Lee v R [2023] NSWCCA 70 at [28]).

387. The Crown notes that this Court proceeds upon the assumption that the complainant’s evidence was assessed by the jury as credible and reliable (Pell at [39]). Insofar as the applicant contends that there were “occasions” where the complainant was said to be “evasive, unresponsive or refused to answer questions”, the Crown says that he only identifies two so-called such occasions from the seven and a half days of cross-examination (see submissions at [167]); and on both occasions, the question was not ultimately pressed (4/3/21; T 229.22-23; 18/3/21; T 604.33-45).

Determination

388. There was no dispute as to the applicable principles on an unreasonable verdict ground (see M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie)).

389. This Court must determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offence for which he has been convicted, i.e., whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see Dansie at [8]).

390. I have reviewed the evidence carefully and I am not left with a reasonable doubt as to the guilt of the applicant.

391. Addressing the matters raised by the applicant in this context I note as follows.

392. I do not accept that there should be some apprehension arising from the explanation(s) given by the complainant as to why the complainant made the handwritten contemporaneous notes. It does not appear to me implausible that the complainant may have started making a record of her treatments before any suspicion as to the applicant’s conduct; if for no other reason than that it is not inconsistent with experience of human nature that some people keep diaries or records of things in their personal or professional lives and here was a person having treatment for apparently chronic pain. There is no basis for a suggestion that the notes were made for some nefarious purpose and having been provided with a colour copy of the relevant note it appears that they were handwritten at different times (being in different coloured pens).

393. Nor does it suggest to me a state of mind that might be overly suspicious or misconstrue events because of some apprehension or suspicion of misconduct from the outset. Rather, the tenor of the notes makes clear the complainant’s concern that she might be misconstruing what had happened or that it might be accidental and is consistent with her explanation that she gave the applicant the benefit of the doubt.

394. As to the weight placed by the applicant on the fact that some incidents were not recorded in the notes – (such as the touching of genitals in Count 1), this must be treated with some caution given that by this stage (the sixth appointment) what was occurring seems to have been a progression of touching in areas increasingly close to the complainant’s vagina and anus.

395. I do not accept that the complainant’s answer in cross-examination amounts to a concession that there was no touching of the female genital area and the complaint by the applicant that this could not have occurred when the complainant was lying on her stomach suffers from the problem that the offending was said to have occurred when she lay on her back.

396. As to the inconsistencies identified by the applicant between the complainant’s notes, Ms Sato’s notes, her evidence and the text communications, given the context and particularly given the possibility for confusion in translation, I do not see these as giving rise to a reasonable doubt. The suggestion that reference to difficulty in translation was some kind of convenient excuse does not grapple with the accredited interpreter’s own recognition of there being some Japanese words with no direct translation into English.

397. As the Crown submissions make clear, the identified inconsistencies in the evidence of the offences have a logical explanation. The concerns raised by the applicant as to the evidence concerning Ground 13, and the vibrator for example, can readily be explained by the complainant seeing an object on the windowsill and assuming this was the object to which the applicant was referring. That says nothing about the credibility of her evidence as to the applicant licking her vagina.

398. The applicant focusses on Counts 1, 2 and 7 when submitting that these in isolation should have raised a “reasonable” doubt.

399. I have already made my observations in relation to Count 1.

400. Count 2 was touching her genitalia while massaging her groin. The complainant’s notes recorded “same as previous time” – an incident of touching her female genital area. The evidence was that the complainant understood female genital area as including the area of clitoris and vagina. The perceived inconsistency between that and Ms Sato’s note of massaging her vagina and anal areas does not raise reasonable doubt.

401. Count 7 was digital penetration of her anus. In relation to Count 7, the absence of references in the contemporaneous notes to digital penetration was something the jury could actively take into account, but it needs to be understood by reference to the record in her notes of her reaction to this and her evidence as to the conversation in which she says the applicant said he was not giving her an ordinary regular massage.

402. The fact that there was no record of this in the notes or Ex L is not conclusive that the exchange did not occur, since there was evidence of deletion of entries in Google Translate from the applicant’s phone.

403. The complainant’s evidence in cross-examination that she thought he put his finger in her anus does not raise a reasonable doubt, when taken into consideration with her evidence that she felt something inserted in her anus but was lying down and not looking at her anus or his fingers.

404. The fact that something other than “ordinary regular massage” has occurred and that she had told the applicant she did not want that kind of massage makes understandable the subsequent entry in her notes in relation to the appointment on 14 February 2019 that “there was nothing today” and her subsequent irritation in relation to Count 8 that he had “touched her”.

405. In between Counts 7 and 8 was, of course, the Valentine’s Day appointment as to which there was a clear dispute between the complainant and the applicant. The later text message from the complainant that refers to Valentine’s Day makes clear that there was an appointment on that day (as the complainant herself accepts). The dispute is as to what occurred on that day (the applicant says consensual sexual contact instigated by the complainant; the complainant says no sexual contact). Unless the complainant was (as she says) simply mistaken as to the date, this seems a clear recognition that there was sexual contact of some kind; and it seems perhaps unlikely that one would readily mistake “Valentine’s Day” for another non-descriptive day.

406. That said, the applicant’s account is also problematic insofar as, on his own account, there had been no sexual contact between them up to that point; it was shocking to him and caused him to “freeze”; he knew it was inappropriate and unprofessional conduct; and yet he did nothing more than say “stop” and laugh; and then continued to treat the complainant on a number of further occasions.

407. Ultimately, it was essentially a jury question to determine which account to believe, or some amalgam of the accounts. (The suggestion by the applicant that there was some connection between the break-up of the relationship between Mr Cotterell and the complainant; and the applicant’s text message has no basis in the evidence as far as I can see other than the temporal coincidence between the two.)

408. Accepting that the evidence of the applicant’s friend Mr Tallai as to the Valentine’s Day incident is credible, it nevertheless does not lead me to doubt that on the occasions on which the complainant did accuse the applicant of inappropriate sexual conduct, such conduct did occur.

409. As to the significance placed by the complainant on the complainant continuing to attend for treatment, again the jury was best placed to assess the complainant’s credibility as to the explanation for attending. I do not accept that had evidence of her work at the Ginza Club been permitted, this would likely have caused the jury a significant doubt. It does not give rise to a reasonable doubt in my mind. What the complainant did at the Ginza Club does not make implausible or not believable her uncertainty as to whether what was happening in the earlier appointments was accidental or not. It is not implausible that the complainant’s perceptions were affected by the cultural and language differences at play.

410. Similarly, I place no weight on the fact that the complainant did not give evidence as to the entire scope of the treatment regime; or as to the evidence as to the size of the towel that was used.

411. I note that the applicant also identified a number of “themes” throughout the complainant’s evidence that were in dispute beyond the denial of the commission of the alleged offences and uncharged acts. First, that the applicant directed the complainant to remove her clothing, resulting in her being treated in her bra and underwear. Second, that in some consultations the applicant directed the complainant to remove her underwear, and in some consultations then removed her underwear himself. Third, that the applicant had, on some occasions after the first appointment, remained in the treatment room, either at the beginning and or end of the appointment, while the complainant was changing her clothes.

412. Those themes do not cause me to have a reasonable doubt as to the applicant’s guilt. Nor does the evidence of the nutritionist interns in circumstances where there is no suggestion that there was any loud complaint made by the applicant. The risk that the interns might come into the treatment room during treatment says nothing – since the taking of risks of detection is not unknown by those engaged in sexual offending.

413. As to the contradiction in the evidence as to the timing of complaint to Mr Cotterell, again I see nothing flowing from that. The complainant’s notes herself record that she had raised with Mr Cotterell at an early stage (after Count 1) and the conclusion that the first treatment had been paid for makes it more explicable that the complainant would feel concern to finish the treatment (especially if paid for by Mr Cotterell and she might be called upon to repay it).

414. As to the submission that the complainant’s credibility was undermined because she could say some words in English, I do not accept this. It is not in dispute (even on the applicant’s case) that the complainant’s level of English was limited – since he used Google Translate with her. The evidence given, through an interpreter, at trial, seems (from a review of the transcript) amply to support the view that she was nowhere near fluent in English. Being able to say “yes”, “no”, “stop”, “painful” or “sleepy” hardly exhibits a mastery of the English language and does not undermine her credibility.

415. As to the fact that the complainant did not recall attending the 5 March 2019 appointment recorded in Ex F, this does not give rise to a reasonable doubt. The applicant’s evidence was that it was a rescheduled appointment. Whether the complainant forgot about it (as may be the case if it was uncontroversial) or the applicant’s records were again “not up to scratch” (as he seems to have conceded was the case for some of those); this dispute does not in my opinion undermine the credibility of the complainant so as to give rise to a reasonable doubt as to the applicant’s guilt. (The recollection of Ms Michael that the applicant attended on that day does not raise such a doubt given that her recollection was qualified to some degree (she “thought” it was her last day) and it seems inconsistent with her recollection that the complainant attended with a man on the about three occasions she saw her.)

416. The most compelling evidence in my view is that comprised by the April 2019 messages (see Exhibits DH and L). The applicant’s response to the complainant’s messages, far from being a denial of sexual misconduct (other than the denial of licking her body) accepts that there was sexual contact at least in February and his protestation that he only said he found her sexually attractive to placate her is something that it was open for the jury to find self-serving and implausible.

417. Having reviewed the evidence, and taking into account the advantage of the jury, I am not left with a reasonable doubt as to the applicant’s guilt on the charges of which he was convicted.

418. Ground 2 is not therefore made good.

Conclusion

419. I would extend the time for appeal (having regard to Ms Teague’s explanation for the delay) and would give leave to appeal (having regard to the seriousness of the convictions and the arguable nature of Ground 1); but would dismiss the appeal.

420. CAMPBELL J: I have had the great advantage of considering the President’s comprehensive judgment in draft. I agree for the reasons expressed by her Honour that Grounds 1(a) and 1(b) have not been made out. I agree with her Honour that it is not necessary to address the operation of Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021 or the proviso to s 6(1) Criminal Appeal Act 1912(NSW).

421. I also agree with her Honour’s analysis of Ground 2, the unreasonable verdict Ground.  Her Honour’s detailed analysis of the evidence and arguments, with respect, accords very substantially with my own appreciation of the course of the trial garnered from my own consideration of the written record. I observe that the applicant did not raise any complaint about any aspect of the summing up at the second trial. I accept, as the applicant argued, that there were differences in detail between the various accounts in evidence given by or attributed to the complainant. In the abstract these differences were capable of giving rise to a question about the reliability of the complainant’s account in this somewhat complicated case involving 13 counts of sexual offences extending over a period of some 2 months.  However, whether the differences were inconsistencies casting a doubt on the reliability of the complainant’s account was quintessentially a matter for the jury. I am satisfied that it was well open to the jury in the exercise of its fact finding powers to reject the applicant’s account and accept the reliability of the complainant’s evidence beyond reasonable doubt. I agree with the orders proposed by the President.

422. BUTTON J: I agree with Ward P. In my own assessment of ground two, I consider that the text messages of the applicant provide significant support for the Crown proposition that the disputed occasions of sexual contact had indeed occurred.

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Decision last updated: 16 August 2024