Moharaminia v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0027

MERSHAD MOHARAMINIA	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2025
DATE OF JUDGMENT:	4 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 159
JUDGMENT APPEALED FROM:	[2023] VCC 2287 (Judge Carlin)

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CRIMINAL LAW – Appeal – Conviction – Applicant charged with seven charges of sexual assault and two charges of rape – Offending occurred during massage service – Directed acquittals on two sexual assault charges – Jury acquittals on two sexual assault charges and one rape charge – Whether not guilty verdicts inconsistent with guilty verdicts on three sexual assault charges and rape charge – Differing verdicts logical and reasonable – No inconsistency – Leave to appeal refused.

MacKenzie v The Queen (1996) 190 CLR 348, applied.
MFA v The Queen (2002) 213 CLR 606; R v Ware [1997] 1 VR 647; Sladek v The King [2024] VSCA 119; Booth v The King [2024] VSCA 318; Fiddes v The King [2025] VSCA 141, referred to.

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Counsel
Applicant:		Mr C Mandy SC with Mr S J Tovey
Respondent:		Mr R Gibson KC
Solicitors
Applicant:	Doogue + George Defence Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
TAYLOR JA:

Introduction and overview

The applicant stood trial in the County Court on an indictment alleging seven charges of sexual assault and two charges of rape. All offending was alleged to have occurred during a remedial deep tissue massage given by the applicant to the complainant, Isabelle Yang.[1]
[1]A pseudonym.
The sexual assault charges were particularised as follows:
Charge 1: [The applicant] pulled down the underwear of [Isabelle Yang] who was lying face down, he massaged her buttocks and spread her buttock cheeks and touched her anus.
Charge 2: [The applicant] removed the underwear of [Isabelle Yang] whilst she was lying on her back and spread open the legs of [Isabelle Yang], massaged her inner thighs and the joint between the thigh and hips near her vagina.
Charge 3: [The applicant] requested [Isabelle Yang] to roll onto her left side and he massaged [Isabelle Yang] between the top of her buttock cheeks and just above her anus.
Charge 4: [The applicant] requested [Isabelle Yang] to roll onto her right side and massaged [Isabelle Yang] between her buttock cheeks and just above her anus.
Charge 5: [The applicant] touched the anus of [Isabelle Yang] and massaged around her anus in circular motion (sic) with his finger.
Charge 7: [The applicant] massaged [Isabelle Yang] between her anus and vagina.
Charge 9: [The applicant] touched and massaged the breasts of [Isabelle Yang].
The two rape charges concerned digital penetration of Ms Yang’s anus (charge 6) and vagina (charge 8).
At the end of the evidence the judge directed acquittals on charges 1 and 3 on the basis that there was not sufficient evidence to support each charge. The jury acquitted the applicant of charges 4, 5 and 6. He was convicted of charges 2, 7, 8 and 9. Thus, the applicant was acquitted of all charges alleging inappropriate sexual conduct concerning Ms Yang’s anus. He was convicted of all charges alleging inappropriate sexual conduct as to her vagina and breasts.

Proposed ground of appeal

The applicant seeks leave to appeal against conviction on the single proposed ground that the jury verdicts of guilty on charges 2, 7, 8 and 9 are inconsistent with the jury verdicts on charges 4, 5 and 6.
For the reasons explained below the differing verdicts are capable of being reconciled. It follows that leave to appeal against conviction should be refused.

The trial

Ms Yang was an international student who spoke limited English. In the trial the evidence called established that on 7 March 2019 she was shopping in the Emporium shopping centre in Melbourne with her friend, ZF. Ms Yang had back pain. She and ZF attended Zen5, a Chinese remedial massage and acupuncture clinic. Ms Yang spoke to Shanu Zhang, a Chinese medicine health practitioner. They conversed in Mandarin. Ms Zhang booked Ms Yang in for a 30-minute massage with the applicant.[2] The massage was performed in one of three curtained cubicles at the rear of clinic. ZF waited in the reception area.
[2]It was the evidence of Ms Yang and Ms Zhang that a 30-minute booking was requested. Ms Zhang gave evidence that she recorded the booking as being for 45 minutes in the booking register to account for a potential request to extend the session.
The prosecution case was that much of the massage had a legitimate therapeutic purpose but the touching particularised in the sexual assault charges had no such purpose and, together with the two digital penetrations, was done for the applicant’s own sexual gratification.
The applicant argued that any touching that occurred was done for a legitimate therapeutic purpose and there had been no digital penetration of the anus (charge 6) or vagina (charge 8). He massaged Ms Yang’s lower back, hips and buttocks. This included the sacrum[3] and coccyx[4] as well as the gluteal[5] and psoas major[6] muscles. He denied touching the area close to the vagina which would normally be covered by underpants (charge 2), the fleshy area above the anus (charge 4), the anal skin area (charge 5), the perineum (charge 7) and the breast (charge 9).
[3]The sacrum is a bone located at the base of the spine.
[4]The coccyx, also known as the tailbone, is located at the end of the spine.
[5]The gluteal muscles are a group of three muscles in the buttocks and hip area.
[6]The psoas major is a deep core muscle located in the lower back connecting the spine to the legs.
The evidence further established that at the conclusion of the massage Ms Yang paid the applicant in the reception area and departed Zen5 with ZF. Shortly thereafter they encountered Ms Zhang inside the Emporium, who was returning to the clinic from the toilets. Ms Yang told her that the applicant had touched her ‘abnormally’. Thereafter Ms Yang and ZF attended the Melbourne East police station where Ms Yang reported the matter. She spoke first to a uniformed officer, Senior Constable (‘SC’) Albert Valentine and then to two SOCIT[7] detectives, Detective Senior Constable (‘DSC’) David Clark and Detective Leading Senior Constable (‘DLSC’) John Shanahan. Ms Yang was subsequently taken to the Royal Women’s Hospital where she was examined by Dr Tom English.
[7]‘Sexual Offences and Child Abuse Investigation Team’.
The applicant was arrested that evening. In a record of interview (‘ROI’) with police he denied the offending alleged.
It is convenient to detail the following relevant aspects of the evidence.

Isabelle Yang

Ms Yang said in her evidence in chief that she wanted Ms Zhang to perform the massage, but that she had another client booked. Ms Zhang recommended that the applicant provide the service and Ms Yang agreed. Ms Yang then went to the cubicle. She said that the applicant used ‘very simple’ English to tell her to take off her clothes. He then left the ‘room’ and closed the curtain. Ms Yang removed all her clothes, but for her bra and underpants, and lay face down on the bed.
Ms Yang said that when the applicant returned he unhooked her bra and put a towel on her back, covering her waist to neck. He then massaged her back on top of the towel for a time before it was removed. At that point the applicant said ‘now starting massage the back’. The applicant touched her waist and buttock to indicate the area to be worked on. Ms Yang said she agreed because she wanted her ‘waist, back area’ to be massaged. The applicant then massaged that area using essential oil while her underpants were in their normal position.
Ms Yang said that the applicant then pulled down her underpants ‘about 40 centimetres’ and started to massage the top of her buttocks as well as the waist. After a while he pulled the underpants down to the ‘end of [Ms Yang’s] butt’. Ms Yang said that the applicant then massaged her buttocks, ‘he repeatedly doing the same massage movement. It’s just massage and pull the butt apart, and just repeatedly doing that’.
When asked if the applicant touched any area between the buttock cheeks when he pulled the buttocks apart, Ms Yang said ‘no’. That answer was the basis upon which the judge directed an acquittal on charge 1.
Ms Yang said that the applicant then asked her to change position by saying ‘flip’. She turned so that she was lying on her back. Her underpants were still pulled down about 40 cm. Her bra covered her breasts but was unhooked. Ms Yang said she used a cloth to cover her abdomen and breasts. The applicant then began to raise and stretch her legs, one after the other. Ms Yang said that as a result ‘one side of my undies actually drop’. She explained that one side of her underpants was still around her leg but the other had come free. Ms Yang said that the applicant then applied pressure to an area near her vagina that would normally be covered by a ‘standard triangle shape’ pair of underpants. She said that at the time she felt ‘a bit strange’ but she ‘chose to believe in’ the applicant and assumed it to be a pressure point connected to her waist. Following a request from the jury Ms Yang drew the area massaged and further explained that it was the area below the belly button and the inside of her thigh.
Ms Yang said that the applicant then asked her to roll on her left-hand side, following which the applicant positioned her body so that her legs were bent. She described her shape as being like a prawn. The applicant then massaged her ‘waist area’ and the ‘butt line – between the butt’. Ms Yang explained that the ‘butt line’ was the area ‘close to the beginning of the butt and above the anal’. She said the applicant was massaging her tailbone about 3 cm from the anus. She said the massage did not extend to any other fleshy parts in the area and she assumed it was a pressure point. That evidence was the basis upon which the judge directed an acquittal on charge 3.
Ms Yang said that the applicant then asked her to roll onto her right-hand side. She was in the same curved position and the applicant performed the same type of massage as he had when she had been on her left-hand side. That included the tailbone, but also extended to a fleshy area closer to the anus. Ms Yang said that the applicant would ‘press and turning … just turning on the skin’. When ask to demonstrate Ms Yang used her index finger to draw a circular motion in the air. She said that the circular motion was on the ‘anal skin … above the, um, anal, but didn’t go in’. She said that the circular movement lasted about five seconds and then the applicant inserted his finger in her anus for about ten seconds, but she was not sure how deeply. When asked to describe the physical sensation she said that the time she thought it was probably a ‘very special pressure point’. Ms Yang said that the applicant withdrew his finger before again inserting it.
Ms Yang said that the applicant then moved to the area between her anus and vagina and ‘touched a few times’. She did not remember any particular movement he did. The touching lasted above five seconds.
Ms Yang said that the applicant then suddenly put ‘half a finger length of his finger’ to his first knuckle into her vagina. She said that she felt something wrong and her ‘brain just went blank’. As she came back to a ‘normal brain status’ the applicant ‘straight away’ put his hand around her breast area which was not then covered by her bra. He grabbed her breast, which Ms Yang clarified meant he held or pinched it. It was her left breast. Ms Yang said that these events happened at the same time. The penetration lasted about five seconds and the breast grabbing about two to three seconds. Ms Yang said she stopped the applicant when he grabbed her breast. She raised her head and said ‘hey’. The applicant said ‘sorry, sorry’. Ms Yang said that she thought ‘this is wrong’.
Ms Yang said that the applicant then massaged her abdomen for a few minutes before again asking her to ‘flip’. The massage ended as she lay face down and the applicant massaged her waist area with oil. The applicant then left the cubicle. Ms Yang said that she got dressed and went to the front reception to pay. She paid the applicant and asked if she could speak with Ms Zhang. He said that she was not in the shop at that moment.
Ms Yang said she left the shop with ZF and ran into Ms Zhang. She said she told Ms Zhang that the applicant gave her ‘some abnormal touch’ but Ms Zhang ‘denied it’ and suggested that Ms Yang was ‘too sensitive’.
Ms Yang said that she told ZF that she ‘got touched’. ZF then accompanied her to the police station in Flinders Street.
Ms Yang said that at the police station she told a constable that she had been sexually assaulted during a massage and then gave further details to two detectives. She said that she was then taken to the Royal Women’s Hospital for a medical examination.
In cross-examination Ms Yang denied the suggestion that, prior to the commencement of the massage, the applicant indicated on his own body the parts of the body he intended to massage, namely the waist, the hips and lower back. She denied agreeing that the massage would proceed to her lower back. Ms Yang said that she did tell him that she had pain in her ‘back-waist area’. She denied that she had removed her bra. Ms Yang denied that the applicant repeatedly asked ‘does this hurt?’ throughout the massage. She said he only asked the question when he penetrated her anus. Ms Yang said she told the applicant that it didn’t.
Ms Yang agreed that at the beginning of the massage the applicant touched the back of her leg, buttocks, lower back, upper back and neck. She said that she could not remember if it was at that point he rolled back the towel. Ms Yang denied that the applicant then tucked the towel into the top of her underpants as he pulled her underpants down, but did agree that her underpants were pulled about halfway down her buttocks. Ms Yang agreed that, at that point, the applicant was working on her lower back and buttocks with oil. By reference to anatomical diagrams of the sacrum and gluteal muscles, Ms Yang agreed that the applicant worked on those areas of her body. By reference to another anatomical diagram of the lower spine, Ms Yang agreed that the massage was also of the coccyx area.
Ms Yang was shown an anatomical diagram of the front pelvis depicting the psoas major muscles. By reference to that diagram she denied that after she had ‘flipped’ onto her back the applicant worked on those muscles by touching the skin on her front upper thigh. She denied that, during this part of the massage, the applicant was touching the area of her body that would ordinarily be outside that covered by underpants.
Ms Yang accepted that the applicant then did repetitive stretching exercises with her legs before she rolled onto one side. By reference to an anatomical diagram depicting a side view of the gluteal muscles, Ms Yang accepted that when she was on both of her sides the applicant worked on that area of her body. She added it was ‘more than that’. Ms Yang was then shown an anatomical diagram depicting the quadratus lumborum muscle.[8] She accepted that the applicant worked on that muscle whilst she lay on her side. Ms Yang accepted that the gluteal and quadratus lumborum muscles received treatment on both sides. She said ‘but not just those’.
[8]A posterior abdominal muscle between the hip and waist.
Ms Yang accepted that the applicant worked on her abdominal area both before and after she had rolled on her side. She said there were also other areas.
It was put to Ms Yang that the massage proceeded in the sequence of the questions asked. Ms Yang agreed and added ‘but some areas are not included, and on some areas were not touched’. She denied that the entirety of the massage was as described in the questions. Ms Yang maintained that the circular motion touching of her anus, the penetration of her anus, the touching of her perineum, the penetration of her vagina and the touching of her breast occurred. She maintained that the applicant said ‘sorry, sorry’.
Ms Yang accepted that when she attended the police station and spoke with SC Valentine she did not tell him that her anus had been penetrated. She accepted that she told him that the applicant had reached under her with one hand and massaged her breasts and buttocks and then used his other hand to insert at least one finger into her vagina. Ms Yang accepted that she said that the applicant had been mumbling. She added that he was mumbling at the beginning but she didn’t realise until later that he was asking her if it hurt. Later she said that the applicant only mumbled when he touched her anal area and asked if it hurt. Ms Yang said she was not sure if she told SC Valentine what had happened in the correct order because she was feeling unsettled, but it was unlikely that she gave the wrong order.
Ms Yang agreed that when DSC Clark or DLSC Shanahan attended she did not say that the applicant had penetrated her anus. She said she did tell them the following day (when she made her statement). When it was suggested that she did not tell the detectives of the anal penetration because she was unsure that it had happened, Ms Yang said that she was 80 per cent sure. She denied that she had not told the detectives of the touching to her perineum.
Ms Yang denied that when she was examined by Dr English in the presence of a CASA[9] support worker she said that the applicant had not penetrated her anus. She said she thought she had said that she was not sure whether he had or not.
[9]‘Centre Against Sexual Assault’.
In re-examination Ms Yang was asked what she meant by her evidence that she was 80 per cent sure that the applicant had penetrated her anus. She said that at the time she thought it was some special technique because she did not know what anal penetration felt like as she had never experienced a finger in her anus nor had an anal examination. Ms Yang said that when she got home she did a test by putting her own finger into her anus and it felt the same.

ZF

ZF said that she waited in the reception of Zen5 as Ms Yang had her massage. The massage finished and before they left the shop ZF said that Ms Yang told her of ‘some inappropriate behaviour’. They then ran into Ms Zhang who, when told, did not believe there had been any inappropriate behaviour. ZF said that Ms Yang ‘had a little bit of a breakdown’ and then said to her that the applicant ‘would touch inappropriately and he insert his finger into the vagina’. ZF said that when they went to the police station she initially assisted in interpreting for Ms Yang.
In cross-examination ZF said that she heard nothing whilst waiting when Ms Yang had the massage. ZF said she was looking at her phone. ZF estimated that there was 15 metres between the massage cubicle and her location in reception. The evidence of ZF at committal that that the distance was ‘not far’ and ‘quite close’ was formally proved.

Shanyu Zhang

Ms Zhang said that she was a Chinese medicine health practitioner and agreed she worked at Zen5 Chinese Medicine Centre. She said that at 2 pm on 7 March 2019 two Chinese ladies came into the shop looking for a Chinese language written menu. Ms Zhang then spoke to Ms Yang in Mandarin. Ms Yang said that she had lower back pain. Ms Zhang recommended a deep tissue oil massage. She said that Ms Yang did not ask if she could perform the massage. After looking at the roster Ms Zhang saw that the applicant was next up and asked Ms Yang if it was alright that he performed the service. Ms Zhang said that Ms Yang nodded her head.
At a time after Ms Yang had entered the cubicle with the applicant Ms Zhang said she heard the applicant ask her to prepare for the massage.

Ms Zhang said the next time she saw Ms Yang was as she was returning to the clinic from the toilets in the Emporium. Ms Yang was alone. Ms Yang said that the applicant was not ‘respecting’ her and she felt uncomfortable with the massage. Ms Zhang said that she thought Ms Yang was ‘really upset’ and told her to calm down. She said she also told Ms Yang that maybe she was ‘too sensitive’. Ms Zhang said that in her experience Chinese girls can be quite sensitive about having male masseurs. Ms Zhang said that Ms Yang calmed down but looked unsatisfied.
Upon returning to the clinic Ms Zhang said she spoke with the applicant. She told him that Ms Yang was feeling uncomfortable with the massage and asked ‘what did you do?’ She said the applicant told her that he massaged her lower back and tailbone before pointing to the front inner thigh. Ms Zhang said that she told him to be careful and, in future, to not massage the front.
In cross-examination Ms Zhang said that in her conversation with the applicant after the massage he referred to the coccyx area as well as the tailbone. She was asked to demonstrate where on the front of the inner thigh the applicant pointed. Ms Zhang did so (but no description of it appears in the trial transcript). Ms Zhang said she was qualified in Chinese medicine massage which was different from the remedial massage performed by the applicant. She said she was ‘confused’ by the front of the inner thigh, because she ‘never touched the front’. Ms Zhang added that she did not ask further questions because she thought that it was perhaps a different style of massage. She said that even in her style of massage the coccyx bone was a usual part of a lower back massage. Ms Zhang said that the coccyx was ‘in between the buttocks at the top’.

SC Albert Valentine

SC Valentine said that on 7 March 2019 he was a uniformed police member at Melbourne East police station in Flinders Street. He was performing watch house duty, meaning he was staffing the front counter. Ms Yang and ZF attended the station shortly before 4 pm. SC Valentine said he observed Ms Yang to have ‘negative body language’. SC Valentine said he spoke with Ms Yang mostly through ZF translating. He said that he ‘gleaned’ ‘in broad strokes’ that there had been an alleged sexual assault. SC Valentine said that Ms Yang said she had gone to the Zen5 clinic with back pain and gone to a back room with an Indian masseuse. The initial massage was fine, but it had turned into a sexual assault.
Thereafter SC Valentine said he took Ms Yang into a soft interview room, leaving ZF at reception. With the assistance of the Victorian Interpreting and Translation Service he asked questions and made notes. SC Valentine said that he contacted detectives from SOCIT quite quickly because after a few minutes it became apparent to him that Ms Yang was alleging a digital rape. Those detectives attended the station about half an hour later.
In cross-examination SC Valentine said that in the soft interview room he was ‘trying to get some key details nailed down’. He agreed that he needed to get enough information to determine that SOCIT was required and that he asked specific questions to get the ‘key details’. He said that he tried to make his notes as complete and accurate as possible in respect of those key details.
SC Valentine said that he did not recall Ms Yang telling him that her anus had been penetrated. He agreed that there was no record of that allegation in his notes. SC Valentine also agreed that he did make a note that Ms Yang said that the applicant was mumbling throughout the massage.
SC Valentine said that his statement was based on his notes and that it included reference to Ms Yang telling him that she had laid naked, face down on the massage table. He agreed that it also referred to Ms Yang telling him that during the massage the male masseuse had reached under with one hand and massaged her breasts and buttocks before using his other hand to insert at least one finger into her vagina.
In re-examination SC Valentine said that part of his notes were in the following form: ‘Naked during massage. One finger into vagina, other hand touching breast’.

DSC David Clark

DSC Clark said that on 7 March 2019 he was stationed at Melbourne SOCIT. He was working with DLSC Shanahan. DSC Clark said that together they attended the Melbourne East police station at about 5 pm and spoke with Ms Yang using a telephone Mandarin interpreter. He said that he made notes during the conversation. Those notes record that Ms Yang said that during a massage the masseuse had inserted a finger into her vagina and put a hand on her breast.
DSC Clark said that those notes further record the following matters said to him by Ms Yang:
Guy led her to room, she undressed leaving underwear on.
Underwear means bra and underwear.
He physically removed her underwear herself.
When she was facing up and forward, end of session, he inserted finger in her vagina.
She said ‘hey’ and he said ‘sorry’ and finished the session after.
One hand in vagina, one hand on breast. Unknown/hand.
Doesn’t think he had gloves.
Touching the front of my body, which is not right.
DSC Clark said that after the interview he and DLSC Shanahan took Ms Yang to the Royal Women’s Hospital for a medical examination.
In cross-examination DSC Clark agreed that in his notes he recorded the words ‘he asked her about her back’. He agreed that his notes did not include any reference to Ms Yang’s anus generally nor penetration of her anus specifically. He further agreed that the notes contained no reference to Ms Yang’s buttocks nor to being touched on the skin between her vagina and anus.

DLSC John Shanahan

The informant, DLSC Shanahan, said that on 7 March 2019 he was attached to Melbourne SOCIT. At about 4 pm he received a phone call from SC Valentine that a female had attended at the Melbourne East police station and complained of a digital rape at a massage parlour. DLSC Shanahan said that together with DSC Clark he then attended at that station and, with the assistance of a telephone Mandarin interpreter, spoke with Ms Yang.
DLSC Shanahan said they both took notes and that his notes including the following:
Male led to room, undress, underwear on – bra and underwear.
Male took off female’s bra and underwear. Male didn’t ask.
Male didn’t say anything or didn’t give any reason for removal of underwear when facing upwards.
Male inserted finger into vagina.
‘Hey’ and then he said ‘sorry’. Rolled over, session wrapped up after that.
One hand touching breast and other hand vagina, with one finger inserted.
DLSC Shanahan said that together with DSC Clark he later took Ms Yang to the Royal Women’s Hospital for medical examination.
In cross-examination DLSC Shanahan agreed that he did not verify the applicant’s qualifications and training as a masseuse nor determine if he was registered with professional associations. DLSC Shanahan said that the applicant had no prior convictions for sexual assault in Victoria or the rest of Australia. He agreed that his notes did not record any allegation by Ms Yang that the applicant penetrated her anus or touched the skin between her anus and vagina. DLSC Shanahan said his notes did contain the following: ‘Didn’t pay too much attention when touching buttock – as it was near back, but when touched front of body, I thought something not right’. He agreed that was the only reference to ‘buttocks’ in his notes.

Dr Thomas English

Dr English said that on 7 March 2019 he was a clinical forensic registrar at the Victorian Institute of Forensic Medicine. He received a request from DSC Clark to conduct a medical examination of Ms Yang. Dr English said that he undertook that examination at about 8 pm that day. The examination initially proceeded with a telephone Mandarin interpreter but Ms Yang was keen to continue in English rather than Mandarin.
Dr English said that Ms Yang told him that she had attended a clinic for a massage where the masseuse had touched the entirety of her left breast, put his finger in her vagina and then touched her buttocks and the outside of her anus. Dr English said he asked questions as to the nature of the contact with the anus. Ms Yang told him that the masseuse did not penetrate her anus with his finger and that she did not think she had suffered any injuries.
Dr English said that upon examination he found no injuries to either the anus or vagina of Ms Yang.
In cross-examination Dr English agreed that his notes recorded Ms Yang as being ‘calm, collected, euthymic’. He agreed that his report was a complete account of the history provided by Ms Yang and recorded that, upon direct questioning, Ms Yang had said that the applicant had not penetrated her anus with his finger. Dr English further agreed that his report did not contain any reference to Ms Yang being touched on the skin between her vagina and anus.

Record of interview

The applicant was interviewed by police on 7 March 2019 in relation to the digital vaginal rape of Ms Yang and the touching of her breasts. No other allegations of inappropriate sexual touching or penetration were put to him.
The applicant stated that Ms Yang had attended the clinic complaining of a ‘low back problem’. He said that he confirmed that he would work on her low back, glutes, pelvic bone and front, psoas and abdominal muscles. The applicant said that he did for 45 minutes and every few minutes asked ‘is this ok?’. He said that it was a deep tissue oil massage which included the sacrum and coccyx. The applicant said that during the massage Ms Yang was wearing only underpants.
The applicant explained the order in which the massage was done. He said that initially Ms Yang was face down and there was a dry massage for five to ten minutes. He then worked on the glutes, coccyx, sacrum and quarter lumbar for about 20 to 25 minutes, before working on the shoulder and upper body. The applicant said he then asked Ms Yang to turn over and face up. He worked on the abdominal muscle and did stretching of the psoas muscle. The applicant said he then asked her to be on her side for him to work in the quarter lumbar, coccyx and sacrum. Ms Yang then rolled on to her other side for that work to be repeated. The applicant said that the massage then finished. When asked, the applicant said that he moved the underpants down to work on the glutes then put them back to normal before Ms Yang rolled onto her back.
The applicant denied unhooking Ms Yang’s bra, inserting his finger into her vagina or touching her breasts.

Applicant’s contentions

The applicant contended that Ms Yang was clear and certain in her evidence. Ms Yang’s account in evidence-in-chief was said to have been largely undisturbed and unqualified by the cross examination.
It was argued that there was little difference in the degree of detail the complainant gave as to charges 2, 7, 8 and 9 — the charges of which the applicant was, by majority, convicted — and charges 4, 5 and 6 — the charges of which he was, unanimously, acquitted. Accordingly it is submitted that there was no rational basis for making any determinative distinction between the different verdicts.
That argument was illustrated by a comparison between the rape charges, namely charges 6 and 8. It was put that there was no qualitative difference between the complainant’s description of the applicant penetrating her anus by at least half a finger for 10 seconds and her vagina by his finger to the first knuckle for at least five seconds. The applicant argued that the complainant’s initial uncertainty as to anal penetration resulting from her unfamiliarity with anal penetration was immaterial to the quality of her account on charge 6.
Similarly, the applicant argued that the quality of the complainant’s evidence as to the touching involved in the sexual assault charges was the same and, consequently, that there was no rational basis for the jury accepting her evidence beyond reasonable doubt as to charges 2, 7 and 9 but not with respect to charges 4 and 5.
The applicant further argued that given the ‘unequivocal nature’ of the complainant’s evidence, a finding of reasonable doubt on one charge, perhaps arising from a prior inconsistent statement, should have extended to all charges as the complainant’s credibility and reliability was central to every charge on the indictment. It was put that the only reasonable pathway open to the jury was that either all of the touching/penetration happened in the manner described by the complainant or that none of it did.

Respondent’s contentions

The respondent submitted that there were clear differences between charges 4, 5 and 6 on the one hand and charges 2, 7, 8 and 9 on the other hand.
First, it was argued that the acquittals related to conduct alleged to have occurred as Ms Yang was on her back or side and concerned the area of her buttocks or anus. Ms Yang gave evidence that she thought that the pressing near her anus was work on a pressure point. When Ms Yang first complained to police she said that she was not concerned when the applicant touched her buttock but became so when he touched the front of her body. Further, Ms Yang said that the applicant asked her during the alleged anal penetration if it hurt and she replied ‘no’. The respondent submitted that that behaviour was in contrast with her reaction to the vaginal penetration.
Secondly the respondent argued that there was a difference in the quality of Ms Yang’s evidence as to the two rape charges. The evidence of anal penetration was not ‘unequivocal’. Ms Yang said that she was only 80 per cent sure that anal penetration had occurred. Further, she either omitted or specifically denied anal penetration to police and Dr English in the aftermath of the offending.
Thirdly, the respondent submitted that it was incorrect to assume that the credibility and reliability of Ms Yang was indivisible. The jury was free to accept some but not all of her evidence and was directed to give separate consideration to each charge. Further, s 44F of the Jury Directions Act 2015 (‘JDA’) prohibits a judge directing a jury that doubts about the truthfulness or reliability of a victim’s evidence in relation to one charge must be taken into account in assessing the truthfulness or reliability of the victim’s evidence generally or in relation to other charges.
Fourthly, the ROI contained no reference to the allegations of anal touching or penetration.
Fifthly, it was open to the jury to ‘apply their innate sense of justice and fairness’ with respect to a nine count indictment of similar offending said to have all occurred within 45 minutes.

Legal principles

A court considering a complaint of inconsistent verdicts must apply a test of logic an reasonableness.[10]
[I]f there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.[11]
[10]MacKenzie v The Queen (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35 (‘MacKenzie’).
[11]Ibid (citation omitted). See also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (‘MFA’).
Inconsistency in the verdicts delivered must amount to ‘an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’[12] before an appellate court will intervene.
[12]MacKenzie (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35.
In matters involving allegations of multiple sexual offences against a single complainant, verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable across the board.[13] That is so even where the acts constituting the offences alleged occurred in close temporal proximity.[14]
[13]MFA (2002) 213 CLR 606, 617–18 [35]–[36] (Gleeson CJ, Hayne and Callinan JJ); [2002] HCA 53. See also R v Ware [1997] 1 VR 647, 650 (Hedigan AJA, Winneke P agreeing at 648, Hayne JA agreeing at 655).
[14]See, for example, Fiddes v The King [2025] VSCA 141 where differing verdicts were held to be consistent and Sladek v The King [2024] VSCA 119 where differing verdicts were held to be inconsistent.
As this Court recently explained in Booth v The King,
One way to reconcile purportedly inconsistent verdicts is on the basis that they were simply the result of ordinary directions that the jury must consider each charge separately, be satisfied of guilt beyond reasonable doubt, and that they may accept a witness’s evidence in whole or in part. Indeed, an acquittal on a particular charge does not necessarily mean that the jury found the relevant witness’s evidence to be untruthful. A jury might believe that a witness is likely to be telling the truth, but still require something more before reaching a conclusion of guilt beyond reasonable doubt. Or a jury might consider a witness to be more reliable, or specific, about some parts of their evidence than others.
Another way to reconcile purportedly inconsistent verdicts is on the basis that the jury took a ‘merciful’ view of the facts. A jury may consider that, although a number of charges have been proved beyond reasonable doubt, justice is sufficiently met by convicting on less than the full number of charges. This is a legitimate approach for a jury to take, even if it may not appear strictly logical to an appellate court.
Nevertheless, cases will remain where the verdicts affront logic and common sense, and strongly suggest that the jury failed properly to perform their duty. The verdicts may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between offences, or a lack of clarity in the directions given to them. An appellate court must intervene in such a case. That said, there are no hard and fast rules for when appellate intervention is required, which will depend on the facts of the case.[15]
[15][2024] VSCA 318, [125]–[129] (Beach, Kennedy and Orr JJA) (citations omitted).

Discussion and analysis

The differing verdicts in this case are logically and reasonably reconcilable.
Most obviously, the three acquittals concern charges alleging inappropriate sexual touching or penetration of the anus whereas the four charges upon which the applicant was convicted concern inappropriate touching near, or penetration of, the vagina and inappropriate touching of the breast. That broad distinction is of relevance where the evidence suggested that manipulation of the buttocks, sacrum and coccyx was therapeutically appropriate in a remedial massage targeting lower back pain, and that during the massage Ms Yang assumed the buttocks/anal touching related to pressure points. The latter is underscored by the fact that when Ms Yang first made complaint to police she made no mention of any inappropriate touching of her buttocks or anus. Indeed Ms Yang told DLSC Shanahan that she did not pay too much attention when the applicant touched her buttocks, as it was near her back, but thought something was not right when he touched the front of her body. It was reasonable for the jury to have considered either that certain anal/buttocks touching/penetration did not occur at all — as in charges 1 and 3 which had been removed from its consideration — and/or that if it did, it was not sexual in nature.
Charge 4, said to have occurred when Ms Yang was on her right-hand side, was a massage on the tailbone said to have extended to a ‘fleshy area closer to the anus’. It was the mirror massage of the allegation founding charge 3 (on which there was a directed acquittal), alleged to have occurred when Ms Yang was on her left-hand side. Ms Yang said that the charge 3 touching was limited to the tailbone and she assumed it was a pressure point. She accepted in cross-examination that the applicant worked on the quadratus lumborum and the gluteal muscles as she lay on both sides.

That touching was markedly different from the touching alleged in both charges 2 and 7. While there was the suggestion that massage on the psoas major muscle had some therapeutic value, the evidence was that ‘touching the front’ was risky. Ms Zhang’s evidence was that she was ‘confused’ by the touching of the front of the inner thigh, that she ‘never touched the front’ and instructed the applicant to not do so in the future. In any event, Ms Yang denied in cross-examination that the applicant massaged the psoas major, maintaining that he touched the area that would normally be covered by her underpants. And, there was no suggestion that touching the perineum had any therapeutic value at all. Ms Yang maintained that the applicant had touched her between the anus and vagina. It was the prelude to the penetration of her vagina. He flatly denied doing so.
The same is to be said for the grabbing of the breast in charge 9. There could be no suggestion of therapeutic purpose. Ms Yang maintained that the applicant had grabbed her left breast. He denied doing so.
The touching of the anus alleged in charge 5 and the anal penetration alleged in charge 6 occurred, on the evidence of Ms Yang, sequentially. It follows that the quality of the evidence concerning the penetration affects the assessment of the circular motion touching of the anus. The ultimate state of Ms Yang’s evidence was that she was only ‘80 per cent sure’ that there had been anal penetration, a state of satisfaction which may or may not have improved after she had later used her own finger to penetrate her anus. Further, and of particular importance, when directly asked by Dr English whether there had been anal penetration, Ms Yang did not, as she told the jury, say that she was unsure. Rather, she specifically denied it. That evidence is qualitatively different from the evidence that Ms Yang simply failed to mention any anal penetration (and touching of the perineum relevant to charge 7) to SC Valentine, DSC Clark, DLSC Shanan or Dr English. In all the circumstances a s 54D JDA direction as to differences in a complainant’s account is unlikely to soften the effect of the specific denial to a doctor of an act Ms Yang was later only 80 per cent sure had occurred.
Further, the evidence of Ms Yang’s response to the digital penetration and grabbing of her breast was notably different from that concerning anal touching and anal penetration. That when Ms Yang was asked to describe the physical sensation of the anal penetration she said she thought it might be a ‘very special pressure point’, and also that she said that during the anal penetration the applicant asked her if it hurt and she said it didn’t, raises some doubt as to where and how she was touched. That is, the jury may have experienced a reasonable doubt as to whether the anal touching charge 5 anal touching and charge 6 anal penetration occurred.
That said, there is an alternative basis upon which the jury may have differentiated between charges 2, 7, 8, and 9 on the one hand, and charges 4 and 5 on the other hand. All of the element of the crimes of sexual assault and rape were in issue at trial, including whether the applicant reasonably believed that, in respect of each alleged touching and penetration, Ms Yang was consenting. Plainly the jury could have concluded that the applicant reasonably believed that Ms Yang consented to touching that legitimately formed part of the massage — particularly given the possibility that his ‘mumbling’ during the massage was in fact him asking Ms Yang if where he was massaging ‘was O.K.’ or painful — while also concluding that he could not possibly have reasonably believed that she was consenting to extraneous touching for his own sexual gratification.
By convicting the applicant on charges 2, 7, 8 and 9, the jury were obviously satisfied beyond reasonable doubt that the applicant did not reasonably believe that Ms Yang was consenting to him touching her breasts or in relation to her vagina. The jury, while accepting that there was touching in the area of Ms Yang’s anus, may not, however, have been prepared to conclude that the applicant did not reasonably believe that this, unlike the touching of Ms Yang’s breasts and vagina, was a legitimate part of the massage in respect of which Ms Yang was consenting. Putting charge 6 to one side (which we have explained above), this possible line of reasoning provides another logical and rational basis upon which the jury’s verdicts can be reconciled.
In short, the verdicts returned give no indication that the jury compromised the performance of its duty. As directed the jury clearly gave separate consideration to the seven charges left to it. The differing verdicts show discernment in the assessment of the evidence and the application of the criminal standard. Those verdicts stand together as reasonable and logical.
Leave to appeal must be refused.

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[2025] VSCA 159

4 July 2025