R v Borodinov
[2024] QCA 138
•2 August 2024
SUPREME COURT OF QUEENSLAND
CITATION:
R v Borodinov [2024] QCA 138
PARTIES:
R
v
BORODINOV, Yevgeny
(appellant)FILE NO/S:
CA No 97 of 2023
DC No 1839 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 5 May 2023 (Sheridan DCJ)
DELIVERED ON:
2 August 2024
DELIVERED AT:
Brisbane
HEARING DATE:
5 March 2024
JUDGES:
Bond and Boddice JJA and Burns J
ORDERS:
1. Application for leave to adduce further evidence is dismissed.
2. The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of sexual assault and one count of rape – where the Crown’s evidence at trial included, amongst other things, a police interview with the appellant and a pretext call and text message exchange between the appellant and the complainant’s partner – where the appellant’s denials in the interview with police were inconsistent with statements made in the pretext call and the text message exchange – whether the verdicts of the jury are unreasonable, or cannot be supported having regard to the evidence
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, citedCOUNSEL:
The appellant appeared on his own behalf
S L Dennis for the respondentSOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
BOND JA: I agree with the reasons for judgment of Boddice JA and the orders proposed by his Honour.
BODDICE JA: On 5 May 2023, a jury found the appellant guilty of one count of sexual assault and one count of rape.
On 16 May 2023, the appellant was sentenced to imprisonment for two and a half years on the count of rape and a lesser, concurrent period of imprisonment on the count of sexual assault. Thirteen days spent in pre-sentence custody was deemed time already served under the sentence.
The appellant appeals his convictions. Initially, he relied on five grounds of appeal.
The first two grounds challenged decisions in respect of proceeding with 11 jurors and the discharge of one juror. The next two grounds related to the admission of similar fact evidence and a failure to call relevant evidence. The final ground, ground 5, alleged that the jury’s verdict “was unreasonable or could not be supported having regard to the whole of the evidence, such that it ought to have caused a jury, acting rationally, to entertain a reasonable doubt as to the Appellant’s guilt of the offences.”
At the hearing of the appeal, the appellant abandoned any ground which would only result in a re-trial. The appellant was not interested in a re-trial, he wished to only pursue a ground of appeal which would result in an acquittal, if successful.
Consistent with the appellant’s indication at the hearing, grounds 1 to 4 were abandoned as success could only result in an order for a new trial. Ground 5 is the only ground pursued by the appellant.
The appellant also made an application to adduce further evidence. The further evidence was said to be relevant to the reliability of the similar fact evidence.
Trial
The two sexual offences concerned one female complainant. Both were alleged to have been committed on the same day in 2021, whilst the appellant was working as a masseuse. The appellant would visit a client’s home to provide massage services.
The count of sexual assault was particularised as touching the complainant’s vulva and/or vagina with his fingers. The count of rape was particularised as penetrating the complainant’s vulva and/or vagina with his fingers.
The Crown called the complainant, her partner and her sister. Similar fact evidence was also led from another female client. A pretext telephone call with the appellant was played to the jury. Text message exchanges between the appellant and the complainant’s partner were tendered into evidence, as was the appellant’s interview with police. The appellant elected not to give or call evidence at the trial.
Evidence
Complainant
The complainant said she learned that her partner had booked a one hour massage for the complainant as a Valentine’s Day present, after receiving a confirmation text message. The massage, which was booked for an hour from 10.00 am on 14 February 2021, was to be performed at home. A text message sent a few days earlier, identified the massage therapist as the appellant.
The complainant said the appellant arrived at her home a bit earlier than the time allocated for the massage. She met him at the car and told him to set up his equipment in the bedroom. The complainant undressed, leaving her underwear on, as was indicated by the appellant. The appellant went into the adjacent toilet whilst she undressed. The complainant placed herself on the table, lying on her stomach. She placed a towel lengthways on her back.
When the appellant returned to the bedroom he commenced the massage, starting with her upper body. The appellant moved the towel as he moved down her body. As the appellant started to massage her back, he pulled the towel down and tucked it into her underwear. When the appellant moved to her legs, he moved the towel and pulled her underwear up like a G-string. After massaging one leg, he switched the towel to the other side before massaging the other leg. At that point, he pulled the towel up to expose the complainant’s buttocks and legs completely.
The complainant said the appellant massaged her feet. He then moved up the table between her legs and massaged her groin area, moving his hands side-to-side. He brushed past her genital area on top of her underwear. The appellant continually moved from her feet to her legs, continuously brushing past her genital area. After moving back to her feet again, the appellant commenced to rub the complainant’s groin area. The appellant then touched her vaginal area, inside her underwear (count 1).
The complainant said it happened at least two times. The complainant tried to pull her legs together, but was unable to do so as the appellant was kneeling between her legs. The appellant then penetrated her vagina. It was more than one finger (count 2). This happened two times, one after the other. On no occasion did she consent to being touched or penetrated by the appellant.
The complainant reached around and pushed the appellant away. The appellant removed his fingers from her vagina and went to get more oil. The complainant jumped off the bed, said she was going to the toilet and ran out of the room to the bathroom. The complainant locked the door and turned on the shower. Shortly after, her partner came to the bathroom. The complainant asked if the appellant had left. The partner said he was having a drink. The complainant said “he needs to go”[1].
[1]AB 214/30.
When the complainant’s partner went back, the complainant asked her to call the complainant’s sister. The complainant spoke to her sister. The complainant’s partner also called the police.
In cross-examination, the complainant accepted that the appellant knew she was not at home alone; that she directed the appellant to set up in the bedroom because she wanted some privacy; that the appellant suggested she drape the towel from the top of her neck to her feet, which was no different to any other massage; that the appellant went to the bathroom and closed the door while she was undressing; that the appellant suggested she go down to her underwear which was not unusual for a massage; that she understood the massage was to be a full body massage for one hour; that the top half of the body massage felt very good; that when it came to massaging her legs, the towel was pushed to one side which was not unusual from previous massages; that she moved her legs apart to help facilitate the leg massage; and that she had not previously been massaged in her groin area, even for a full body massage.
The complainant said that on more than one occasion, the appellant pushed her legs apart and got up onto the massage table, kneeling between her legs. She agreed that she was lying face down the whole time, so what she described was from what she could feel, but said she could see that he no longer had his feet on the ground by looking through the hole in the massage bed. The complainant denied it was practically impossible for the appellant to touch her in the way described whilst kneeling behind her, lying on the massage table.
The complainant accepted that in her statement to police, she had said there was only one time when the appellant’s fingers were inside her, but that in her evidence she had said there were at least two times. She also accepted that in a meeting with the prosecutor shortly prior to the trial, she had said that he had placed his finger inside her vagina four to five times. The complainant said that was what she recalled at the time. Later the complainant said, “He stuck his finger up my vagina, had a good old feel and it was all good. Great. Is that what you want to hear? Cool” and “Okay. It’s one time. That’s what I said in my police statement. He did it once. He was up me.” The complainant denied making up her evidence and said she knew it had happened and that it happened “at least once”.[2]
[2]AB 231/4.
The complainant accepted that the massage ended when she said she needed to go to the toilet. She agreed the appellant did not try and stop her, but said, “He didn’t have a choice.”[3] She agreed she had said she did not want to tell her partner because she felt bad. She denied that she had those feelings because she was aroused during the massage and wanted it to become more sexual.
[3]AB 231/46.
Complainant’s partner
The complainant’s partner said she organised for the complainant to receive a 60 minute in-home massage on Valentine’s Day. She chose a relaxation massage. She booked it about a week before and received an invoice which listed the name of the masseuse.
About 10 minutes before it was due to start, the complainant received a phone call from the appellant. They met in the driveway. The complainant’s partner did not see the complainant return into the house with the appellant. After about an hour and 20 minutes, the complainant’s partner began to wonder why they were not finished yet. After another 10 minutes or so, she went to the bedroom. As she did so, the complainant ran out; said, “can you see him out” and entered the bathroom and put the shower on. The door was locked by the complainant.
The complainant’s partner asked the appellant if she had booked a 60 minute or a 90 minute massage. He replied that she had booked a 60 minute massage, but that because it was Valentine’s Day he did extra. He would not tell the booking agency because it would cost a lot of money. The appellant said massage was his passion, so he wanted to do it. During this conversation, the appellant said he had moved up from Melbourne because of COVID. She asked him if he did massages outside the booking agency and he said he had his own personal clients.
The complainant’s partner said that when she went to obtain a glass of water at the request of the appellant, she heard the water turn off in the bathroom. When she came back, the appellant was writing his number down, in case they wanted massages outside of the booking agency. After he wrote down that number, she returned back to check on the complainant. The bathroom door was still locked. The complainant asked if he had gone. When the complainant’s partner said no, the complainant said “You need to get him out of the house.” When the complainant’s partner asked what happened, the complainant kept saying, “get him out of the house”.
The complainant’s partner said she told the appellant she had to get the children ready to go out and saw him out of the house. She then locked the door and ran back to the bathroom. The bathroom door was still locked. She told the complainant she could open the door. The complainant asked if he had gone and she said “yes”. The complainant asked whether she had locked the door and the complainant’s partner said “yes”. The complainant asked her to go and check the other doors.
When the complainant’s partner returned back to the bathroom, the complainant unlocked the door. The complainant was sitting on the bathroom floor naked, in the foetal position. The complainant asked her to ring the complainant’s sister, which the complainant’s partner did, giving the telephone to the complainant. After that, the complainant’s partner contacted police who attended the house soon after.
Later that day, the complainant’s partner participated in what was called a pretext call, at the request of the police. The appellant did not answer, but returned the call after the complainant’s partner sent him a text message indicating that she wanted to talk to him about booking a massage for herself, as the complainant had enjoyed it so much. It was a lengthy call, lasting approximately 53 minutes.
During this conversation, the complainant’s partner told the appellant that the complainant had enjoyed her massage, that they were hoping to book further private appointments directly with him; that she liked his energy; and that she felt comfortable with him. The complainant’s partner raised whether they would have to pay extra for what he had done for the complainant. The appellant denied touching or massaging the genital area or penetrating the complainant, stating “what happened was I did the lymphatic drainage on her hamstrings and glutes”. At one point, the appellant raised that a previous client was open to that type of massage, but that he “out of respect” felt he should not go there.
Later, when the complainant’s partner raised a vaginal massage, the appellant said it was called Yoni massage and said it was a sacred space massage. When asked what it entailed, the appellant replied, “[the complainant] did not experience the full, she didn’t actually experience … I basically I mostly massaged her hamstrings and her glutes. I didn’t do much of … her down there. Like … wasn’t, because, because I wasn’t um, I don’t know. At one point, I think she wasn’t, I’m not sure if she was as open and so then I … backed off out of respect.” When the complainant’s partner asked had he tried to do “like a little bit vaginally”, the appellant replied, “Yeah. It was just like on the edges and stuff like that and, and then I backed off a bit.”
Towards the end of the conversation, the appellant said that the complainant did not experience the whole thing. When the complainant’s partner queried whether penetration and touching was not the whole thing, the appellant replied, “That was nothing … That was just, no. That was just, that was just trying to do a gluteus release slash lymphatic drainage. That was nothing.”
The complainant’s partner said that within an hour of finishing that pretext call, she received a text message from the appellant. They then exchanged many text messages. In that text message exchange, the appellant said his partner knew he did massages, but did not know “I was planning to do Yoni”. The complainant’s partner texted “Is it out of line to ask what you did to [the complainant] vaginaly as I would love to replicate it with her tonight as she loved it so much.” The appellant texted back “I’m about to do washing so while I’m doing that we can sms eachother. I’m actually very passionate about helping you and your GF sex life.” He also texted “Make sure she leaves her underwear on” and “don’t expose her bum but keep it covered and tuck the towel under her undies.”
The complainant’s partner then texted, “Oks what did you do to [the complainant] vaginaly today?” and “Teach me.” In the following messages, the appellant gave instructions on how to massage the complainant, including “you need to brush around the edges of the vagina … The outer lips.” The appellant also texted “Make sure you get the vagina nice and wet”. When the complainant’s partner texted “and you were on her lips”, the appellant replied “my hands were on the outside of her pussy lips … but that again was more her hamstrings and bum”.
Later, the appellant texted “Just to let you know when I massaged your GF it was more of a massage I never went into the whole yoni thing it was more of a massage … Your partner was very open with me from the start and was very relaxed but I am glad I performed a nice Swedish relaxation plus Lomi and lymphatic massage but it never was a yoni dear.”
The complainant’s partner said she stopped replying, but the next night she received a series of text messages from the appellant. During that text exchange, the appellant texted “A lot of people misunderstood feeling relaxed and feeling turned on and at the end of the day I have an excellent track record of keeping people relaxed. If a client is feeling turned on or sexual I know I can’t control that but I try to veer away from those areas that’s how I have always done it and that’s why I have had happiness and success in this industry. So with [the complainant] thank God I didn’t do anything more it was just [an] indulgence massage and she was very open, relaxed and happy.”[4]
[4]AB 375–376.
In cross-examination, the complainant’s partner agreed she did not meet the appellant until after he had finished the massage; that when the complainant ran to the bathroom, she was not crying; and that she had a friendly conversation with the appellant as he was packing up. She accepted she had told police that she asked for his details because she was curious if they would be the same as the ones provided on the invoice and also because something did not feel right. This was after she had gone back to check on the complainant and the bathroom door was still locked and the complainant would not open it. She accepted that the appellant had no hesitation in providing his telephone number and was not trying to rush out the door. She agreed that during their entire conversation, the appellant was calm.
The complainant’s partner accepted that the pretext call was made the same day, after she had travelled to the police station with the complainant. She did not talk to the complainant about the call, prior to it happening, and the complainant was not present when she made that call. The police had told her the purpose of the call, which was for the appellant to admit what had happened during the massage. It was her decision to pretend that she was trying to hire him. She was “willing to do anything I could to make him admit what he’d done”.[5]
[5]AB 257/22.
The complainant’s partner accepted it was a lengthy conversation. She accepted the conversation went into a lewd discussion about sexual things and that she started that discussion and that after the phone call, she was quite jubilant and said, “I fucking got it”.[6] She did not accept that she controlled the conversation. She continued to partake in text messages, she thought she might as well “try and get him on text message as well”.[7] Police did not ask her to text message him.
[6]AB 133/59.
[7]AB 259/41.
Complainant’s sister
The complainant’s sister said she received a telephone call from the complainant’s partner, who put the complainant on the telephone. Prior to speaking to the complainant, the complainant’s partner had told her the complainant had a massage. The complainant was quiet and sobbing. She asked her what happened and what was wrong. Initially, the complainant did not answer. She said if the complainant did not talk to her, she could not help her. The complainant then replied that she felt bad, she felt gross. When the sister asked did he touch her inappropriately, the complainant replied, “I didn’t like it, I didn’t want him to.” The complainant also said, when asked whether she told him to stop, that she pushed his hand away. The complainant’s sister told the complainant that she needed to call the police.
The complainant’s sister said she immediately travelled to the complainant’s house, which was about half an hour away. She found the complainant lying under a blanket, crying. The complainant’s partner and her children were present in the house.
Former client
YAB gave evidence that on the evening of 22 December 2022, she booked a massage using the same booking agency that the complainant’s partner had used to book the complainant’s massage. She booked a 90 minute Swedish massage, at her own home. A confirmation of the booking was received shortly after. Later, YAB received a text message from the appellant, asking if he could come a little bit earlier to set up. The message confirmed it was a Swedish massage.
YAB said there was no other person present in her home that evening. When she let the appellant in, he asked where she would like him to set up. They discussed her work and whether there were any areas that she wanted the massage to focus upon. He then told her to get undressed to the level she felt comfortable with and left the room in order to let her undress. YAB removed her clothing down to the lower half of her underwear and lay face down on the massage table.
At first, it was similar to previous massages YAB had received, focussing on her upper back, shoulders and lower back. At some point she fell asleep. The appellant was massaging her upper back and lower back and shoulders at the time she fell asleep. When she awoke, the appellant was still massaging her back. The massage then started to focus more on her buttocks and inner thighs. YAB considered it unusual. After a few minutes, the massage moved back to her shoulders and back.
The appellant then started focussing more on her buttocks and inner thighs, getting higher up towards the lining of her underwear. Eventually he started massaging over her underwear on her vulva, and clitoris with both hands. After a couple of minutes, he massaged underneath her underwear on her vulva and clitoris; YAB said the appellant was standing next to the bed with one hand on her buttocks and one on her vulva and then one hand on her vulva and one on her clitoris. He used the same circular massaging motion on her vulva and on her clitoris. There was no conversation at this point. He massaged under her underwear for a couple of minutes.
YAB felt uncomfortable and asked him to stop and he stepped away. They had a conversation. The appellant said he was reading her body and if there had been a blockage, he would have stopped. YAB told him there was a need for consent and she did not give her consent. The appellant replied that he had never really thought about consent and he would ask for consent in future. The appellant also said that because she seemed stressed, he had given her extra time and that it had been three hours, when she had booked a 90 minute massage.
YAB said that after she had dressed, she helped the appellant pack up his table and he left. At no point did she give consent for him to put his hands on the outside or inside of her underwear. After he left, she lodged a complaint with the booking agency. She later made a formal complaint to the health authorities and police.
In cross-examination, YAB accepted that the entirety of the massage was conducted with her lying face down in the lounge area of her home. She denied a towel was used in the course of the massage. She was quite comfortable for the massage to be conducted in just her underwear. She accepted that in her email of complaint to the booking agency, she said that she was in a relaxed semi-conscious state and that she remembered “feeling a bit ambivalent because I was enjoying myself but at the same time surprised and started asking myself what was happening”.[8] She also accepted that she stated in that email that she was responding to being touched in gradually more intimate ways and did not object explicitly, but that “in retrospect, I feel deeply troubled by the experience”.[9] She denied that her recollection was hampered by having fallen asleep and having an altered sense when she awoke.
[8]AB 282/44-45.
[9]AB 283/45.
YAB accepted that at no stage was the appellant on top of the massage table. She denied that it would have been difficult for somebody in his position to access that area when she was lying face down on the table. She denied moving her hips off the table in order the ease the access to that area. She agreed no force was used by the appellant. YAB accepted that as soon as she expressed she was no longer feeling comfortable, the appellant desisted immediately.
YAB agreed that she did not speak to police until some four months later. The health authorities encouraged her to go to the police. She also accepted she did not go to the health authorities immediately after the massage. She accepted she had read through her statement to ensure the events were fresh in her mind.
Police
Samantha Barker (Barker) attended the complainant’s residence on 14 February 2021. Later, at the police station, she organised for the complainant’s partner to participate in a pretext call. She also spoke with the appellant on 16 February 2021. That interview was recorded and played to the jury.
During the course of her investigation, Barker liaised with the booking agency, who confirmed that the appellant was a contractor. They provided documentation which included an incident report concerning YAB, together with emails transcripts and call logs between the appellant and that organisation.
In cross-examination, Barker accepted that the first time the appellant was aware of being investigated, was when she had a telephone conversation with him on the evening of 15 February 2021. She agreed that the text messages, which had been discussed with him in the record of interview, were all sent prior to her speaking to him, including the final text messages.
Appellant’s interview
In the interview with police, the appellant gave his present occupation as a massage therapist and said he had only recently moved up from Melbourne. He had been qualified since 2019 and was employed by two companies, one being the booking company used by the complainant’s partner. The appellant said that he was qualified in Swedish massages. Unofficially, he also performed Lomi, a Hawaiian-style massage and lymphatic drainage, which was basically a detox massage.
The appellant said on Valentine’s Day, the complainant took him to her room to set up his massage table. He explained how the massage worked, including that she took everything off, leaving on her underwear and covering herself with the towel. He went to the toilet while she undressed. He performed a full body massage for an hour and a half session. He could tell she liked massages and he was told it was not her first time. He gave her a half an hour bonus time, free of charge. He said he does not do the massages for the money; he does it for the passion as he believed his calling was to help people.
The appellant said at the conclusion of the session, the complainant went into the bathroom. Her partner came in and was very friendly and praised him for the massage. They discussed having similar energies. He gave her his number. The partner told him she would definitely book him again as he had done a fantastic job.
The appellant said that about an hour or two after he left, the partner rang him. She was very friendly. She told him the complainant was so happy with her massage that the partner wanted to know what he did to the complainant. The appellant said this was his dream, to have a loyal client. He answered her questions and spoke about the massage process. The partner’s questions went into areas in relation to which he had done study through an online course from Germany. It involved a modality that was more intimate. It was not a modality he had performed, but he was fully aware of it. It was called Yoni massage.
The appellant said when he spoke to the complainant’s partner, she went into those topics. Having looked back through their text messages, he now realised she was a little bit too friendly and was trying to get him to confess “what I did with [the complainant] what has never happened”.[10] The appellant said that the partner could not understand that Yoni massage was a sacred space for the woman, which you did “down there”, meaning in the vaginal region. It was different from a massage using western world modalities.
[10]AB 441/21-24.
The appellant said that when he performed a full body massage, you did the back, lower back, feet, calves, hamstrings and glutes. When you did the glutes, you were doing lymphatic drainage or just Swedish, brushing over using your fingers. You do not go further, but you can sometimes see clients open and he could not control the clients. The best he could do was to chop and change. He would go back to the feet.
The appellant said the complainant was very open and very relaxed, but he never performed the Yoni. The Yoni came up in his conversation with the complainant’s partner because she tempted him to go into that field:
“She wanted that, sh–, she, ‘cause she was being um, look she was being sexual with me, okay? Intimate with me. Um, I was open with her. Um, I explained to her that that field is, it’s a niche. I don’t think it’s, it’s, I don’t know if it’s well-recognised here, I don’t know anyone that’s doing it here. I think there’s a, a girl ah, I heard of doing it in Melbourne. Charging three hundred dollars for it, by the way. Um, so I said, so in one sense it was a temptation for me to consider doing Yoni massage and it’s been in my mind for a long time. Since I started working for [the recruiting company], since November, all my massages, like if you check my reviews and all that, I’ve got five star ratings. I’m one of the, one of the good you know, I’m not the oldest massage therapist but I’ve got the best reviews. I’ve never gotten a four star, okay? I’ve always performed a professional massage. I’ve never done a Yoni before. But over the phone, I explained it to her, what that is because she was so interested in it.”[11]
[11]AB 443/40–60.
The appellant said he massaged the complainant’s cheeks whilst doing the glutes, but he never massaged her vagina: “… you don’t go in where the underwear lining is. You don’t go into those intimate areas because that begins to be a Yoni massage.”[12] The appellant went on to say: “Never did I go in there and, and the towel was not, not like a G string… you’ve gotta be careful not to touch the, the anal muscles because it’s a very sensitive area.”[13]
[12]AB 446/36–37.
[13]AB 450/55–60.
The appellant said when he started massaging the complainant’s legs, she quickly moved her legs indicating that she loved massages because she was so relaxed and open. You still could not see anything because the legs were covered by a towel. When she had her legs out, he glided his hands over her, working on the glutes. The appellant denied he put his hands between the complainant’s legs, brushing past and touching her vagina on the outside of her underpants. That was “really false”.[14] He said he had had both male and female clients before who had wanted him to do more, but he “never went down there”.[15] There is a tension between being relaxed and being turned on and he could not control how clients feel.
[14]AB 449/60.
[15]AB 450/10.
The appellant denied he put both fingers underneath the complainant’s underpants, rubbing the inside of her vagina. He massaged her glutes. He said you have to be careful not to touch the anal muscles because they are a very sensitive area. The appellant also denied returning back to the same area and putting his finger underneath the underpants and penetrating her vagina. That was “a huge false”. The appellant said he had been “setup for this”.[16] There was no possibility he accidentally touched the complainant’s vagina because he knew “exactly what I do” and knew not to go into those no-go zones.[17]
[16]AB 451/45.
[17]AB 453/30.
The appellant said that the text messages he exchanged with the complainant’s partner, arose because the complainant’s partner asked questions about the massage. She initiated the whole process. She wanted the sex advice. He never did anything to the complainant. When he spoke about brushing around the edges of the vagina, he was referring to a Yoni massage. He was trying to explain how to perform it. When he said that his hands were on the outside of her pussy lips, he meant they were on the outside of the vagina, on the cheeks. He massaged her cheeks. When asked why he would describe his hands as being on the outside of her pussy lips, the appellant said, “Because the, the vagina doesn’t just end there, there’s actual skin on the outside and I call that pussy lips.”[18] He used that terminology because that was Yoni talk. When he massaged the complainant, he did not massage her vagina. Later the appellant said, “When I said pussy lips, I’m trying to turn her on because she wants to have this sexed up Valentine’s Day. So, I’m trying to, that’s wh–, ‘cause she’s wanting that information so I’m talking Yoni talk. But when I massage, I say in the text messages, it was just the cheeks.”[19]
[18]AB 462/33.
[19]AB 463/33.
When asked about his description of the massage between him and the complainant as an emotional release and that not everyone is open to it and that the complainant was open to it, the appellant said:
“Because not everyone gets to … the detox okay, and the holistic healing. That’s basically um, some people just want a massage, you know. When you’re doing the holistic healing, it involves the body, the mind, the spirit, all of that. And that’s when I use my fingers and I brush up and that’s like, and that’s the lymphatic drainage that I do. You know, it’s a detox. And then the detox goes into the organs, it comes out. It’s a, it’s a skin toning, it’s, there’s so many benefits to a lymphatic drainage … It’s not a Yoni massage.”[20]
[20]AB 467/30–42.
The appellant said that his reference in the text messages to having backed off out of respect, was because he could tell from the complainant’s body, that she was turned on. The appellant said:
“Because of what I could you know, ah hear and what I could um, like for example even when I was like, massaging her neck and you know, she was just, the expressions and all of that. And you know, she had you know, and I thought like, well this person, like it’s not just the weather, she’s got a lot of goosebumps and everything and I’m thinking, I know what that does. She, you know I think, and the way that she was and the way I could hear her breathing I thought, no I think there’s something more going on, so I just backed off. I didn’t, I didn’t do anything.”[21]
Consideration
[21]AB 469/43.
Further evidence
The application to adduce further evidence related to the time period the appellant spent with YAB. It was submitted that this evidence established that YAB was in error in her estimate. However, all of the evidence was available at trial and the ground of appeal relevant to a failure to call evidence was abandoned by the appellant. Further, this issue was the subject of cross-examination at trial. That being so, there is no basis to conclude there has been a miscarriage of justice as a consequence of that evidence not being led at trial.
In any event, as success in this application would only lead to a re-trial, the application to adduce further evidence is properly to be viewed as having been abandoned by the appellant.
For the abovementioned reasons, leave to adduce further evidence should be refused.
Ground 5
The determination of a ground of appeal, that a jury verdict is unreasonable and not supported by the evidence, requires the appellate court to undertake an independent assessment of the record, to determine whether, on a consideration of the evidence as a whole, it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.[22] Due regard is to be accorded to the role of a jury in the criminal trial.[23] However, if there are inconsistencies, discrepancies, inadequacies or other evidence which, even allowing for the advantages enjoyed by the jury, are of such a nature that a reasonable doubt ought to have been entertained, the verdict will be considered unreasonable.[24]
[22]Dansie v The Queen [2022] HCA 25 at [38].
[23]Dansie v The Queen at [9], citing M v The Queen (1994) 181 CLR 487 at 493.
[24]Pell v The Queen (2020) 268 CLR 123 at 145 [39].
Undertaking that task in the present case, a consideration of the record, as a whole, supports a conclusion that it was open to the jury to be satisfied of the appellant’s guilt of each of the offences, beyond reasonable doubt.
First, it was open to the jury to reject the appellant’s denials, in the interview with police. Those denials were inconsistent with statements made in the pretext call and the text message exchange. Further, it was open for the jury to reject his explanations for those statements, in the interview with police, as being a reference to Yoni massages, not what he had done to the complainant. That rejection was particularly open having regard to the appellant’s admission that he had his hands on the outside of the complainant’s “pussy lips”.
Second, once the jury rejected the appellant’s denials and explanations, in the interview with police, it was open to the jury to accept the complainant as reliable and credible. There was a consistency in her evidence as to the events the subject of each count and she was not shaken in cross-examination.
Whilst the complainant had given differing estimates of the number of times the appellant had inserted his fingers into her vagina, the complainant gave an explanation for those inconsistencies. Nothing in that evidence was of such a nature as to warrant a conclusion that the jury ought to have had serious doubts as to the complainant’s reliability and credibility, in respect of the key allegations, namely, of touching the outside of her vagina and of penetrating her vagina with his fingers, both without her consent.
Third, there was significant support for the complainant’s evidence in the pretext call with the appellant and the subsequent text message exchange between the appellant and the complainant’s partner. The appellant’s acceptance, in the pretext call, when the complainant’s partner asked if he had tried to do “like a little bit vaginally”, that it was “just like on the edges” was particularly telling, when regard is had to the contents of the subsequent text exchange where there was an admission that the appellant’s hands “were on the outside of [the complainant’s] pussy lips”. Whilst those statements did not include a concession that the appellant had penetrated the complainant’s vagina with his fingers, it was open to the jury to accept the complainant’s evidence that he had done so, without her consent.
Fourth, although the appellant submitted that there was inconsistency in YAB’s estimate of the time period for her massage, it was open for the jury to accept YAB’s account of what took place in the massage session. Any error in her estimate, as to the total period of the massage, was consistent with an honest witness, trying her best. The error was not of a nature which cast doubt as to the reliability and credibility of her account of what had taken place in the course of that massage.
The verdict of the jury was not unreasonable.
Orders
I would order:
1.Application for leave to adduce further evidence be dismissed.
2.The appeal be dismissed.
BURNS J: I agree that the appeal should be dismissed for the reasons expressed by Boddice JA.
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