Van Eyle v McFarlane
[2022] ACTSC 1
•20 July 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Van Eyle v McFarlane | ||||||||
| Citation: | [2024] ACTSC 50 | ||||||||
| Hearing Date: | 20 July 2023 | ||||||||
| Decision Date: | 29 February 2024 | ||||||||
| Before: | McWilliam J | ||||||||
| Decision: | The appeal is dismissed. | ||||||||
| Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court against finding of guilt – act of indecency without consent – whether verdict unreasonable or unsupported by the evidence – whether failure to give reasons – where Magistrate accepted complainant’s account and it was corroborated by complaint | ||||||||
| evidence – where Magistrate rejected appellant’s evidence on critical facts as implausible – where no inconsistencies in complainant’s evidence established – where reasons met | |||||||||
| minimum standard required – appeal dismissed | |||||||||
| Legislation Cited: | Crimes Act 1900 (ACT) s 60(1) Magistrates Court Act 1930 (ACT) ss 208(1), 214, 218(1)(b) Supreme Court Act 1933 (ACT) s 68C | ||||||||
| Cases Cited: | AK v State of Western Australia [2008] HCA 8; 232 CLR 438 Alexander v Bakes [2023] ACTCA 49 Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165; 103 NSWLR 479 Dansie v The Queen [2022] HCA 25; 274 CLR 651 Director of Public Prosecutions v Walker [2011] ACTCA 1 DL v The Queen [2018] HCA 26; 266 CLR 1 Garay v The Queen (No 3) [2023] ACTCA 2 Gillard v R [2013] ACTCA 17 Greenwood v Barlee [2018] ACTSC 46 | ||||||||
| Hann & Commonwealth of Australia [2004] SASC 86; 88 SASR 99 | |||||||||
| Lee v R [2023] NSWCCA 203 Libke v The Queen [2007] HCA 30; 230 CLR 559 McFarlane v Van Eyle [2022] ACTCA 68 Melbourne v The Queen [1999] HCA 32; 198 CLR 1 M v The Queen (1994) 181 CLR 487 | |||||||||
| O’Connell v McMennemin [2014] ACTSC 112 | |||||||||
| Pell v The Queen [2020] HCA 12; 268 CLR 123 Pettit v Dunkley [1971] 1 NSWLR 376 Rawsthorne v Wilson [2018] ACTSC 342 Roberts v Rhodes [2014] ACTCA 20 | |||||||||
| R v Roux [2015] ACTSC 307 | |||||||||
| R v Schippani [2012] ACTSC 108; 265 FLR 197 Simic v The Queen (1980) 144 CLR 319 | |||||||||
| SKA v The Queen [2011] HCA 13; 243 CLR 400 | |||||||||
| Stevenson v R [2022] NSWCCA 133; 299 A Crim R 457 Van Eyle v McFarlane [2022] ACTSC 1 | |||||||||
| Warne v The King [2023] ACTCA 1; 374 FLR 311 | |||||||||
| Parties: | Timothy Van Eyle (Appellant) Amy McFarlane (Respondent/Informant) | ||||||||
| Representation: | Counsel | ||||||||
| P Edmonds (Appellant) S Janackovic (Respondent) | |||||||||
| Solicitors | |||||||||
| Canberra Criminal Lawyers (Appellant) | |||||||||
| ACT Director of Public Prosecutions (Respondent) | |||||||||
| File Number: | SCA 15 of 2021 | ||||||||
| Decision Under Appeal: |
| ||||||||
| Court File Number: CC 2500 of 2019 | |||||||||
| McWILLIAM J: | |||||||||
| 1․ | The appellant in this matter has brought an appeal against a finding of guilt made by the | ||||||||
| Magistrates Court in relation to an act of indecency without consent, contrary to s 60(1) | |||||||||
| of the Crimes Act 1900 (ACT) (Crimes Act). The act of indecency that was the subject | |||||||||
| of the guilty finding was the sexualised touching of the complainant’s breasts during the | |||||||||
| course of a massage, including her nipples and areolae, by the appellant (who was the | |||||||||
| masseur). | |||||||||
| 2․ | The appellant successfully appealed the matter to the Supreme Court, where the finding | ||||||||
| of guilt was overturned: Van Eyle v McFarlane [2022] ACTSC 1. However, that decision | |||||||||
| was then appealed to the Court of Appeal, where the appeal was allowed, and the | |||||||||
| proceedings were remitted: McFarlane v Van Eyle [2022] ACTCA 68 (McFarlane). | |||||||||
| 3․ | The remitted proceeding was argued by reference to an amended notice of appeal filed | ||||||||
| on 20 July 2023, seeking the following orders: |
(a) That the conviction be quashed; and (b) That the appellant be found not guilty of the offence.
The grounds of appeal
| 4․ | The two grounds of appeal are: |
(a) The verdict was unreasonable or cannot be supported by the evidence; and (b) The Magistrate gave insufficient reasons.
Jurisdiction
| 5․ | The appeal arises under s 208(1)(b)(iii)(B) of the Magistrates Court Act 1930 (ACT) (MC |
| Act) and is governed by the provisions in Div 3.10.2: McFarlane at [18]. Among those | |
| is s 214(2), which provides that the Court: |
(2) … must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
| 6․ | While the section also provides a limited power to receive evidence (not invoked here), |
| essentially the appeal is conducted by way of rehearing, rather than on a de novo basis: | |
| Alexander v Bakes [2023] ACTCA 49 at [16]-[17]. In that regard, error must be | |
| established: Roberts v Rhodes [2014] ACTCA 20 at [10]; McFarlane at [21] per Mossop | |
| J, [96] per Kennett J. It is sufficient to establish some material legal, factual or | |
| discretionary error on the part of the magistrate: McFarlane at [98] per Kennett J. | |
| 7․ | Otherwise, the principles applicable to appeals by way of rehearing were usefully |
| summarised by Mossop J in Greenwood v Barlee [2018] ACTSC 46 at [2]-[4], and confirmed more recently in Alexander at [13] and [18] and the authorities there-cited. | |
| Without repeating them, the Court makes due allowance for the advantages enjoyed by | |
| the magistrate at first instance by reason of having seen and heard the evidence but | |
| does not shrink from giving effect to its own conclusion on the evidence. | |
| 8․ | The first error argued by the appellant was that the verdict was unreasonable or cannot |
| be supported by the evidence. That is a species of error that would justify setting the | |
| conviction aside in an appeal governed by s 214 of the MC Act: McFarlane at [97] per | |
| Kennett J. | |
| 9․ | The second error asserted was a failure to give reasons. Depending on the |
| circumstances of the failure established, that may not necessarily be an error justifying | |
| setting aside the conviction, but the Court may, within its discretion to make the | |
| appropriate order in the circumstances under s 218(1)(b), return the decision to the court | |
| below for the further provision of reasons. In the appeal here, that question does not | |
| arise. As explained below, it has not been established that there was a failure to give | |
| reasons. |
Issues in the Court below
| 10․ | The elements of the offence of an act of indecency without consent are as follows: |
(a) That a person commits an act on another person; (b) That the act is indecent according to the standards of morality and decency held by ordinary members of the community;
(c) That the other person does not consent to the act; and (d) That the person was reckless as to whether that other person consented.
| 11․ | Proof of either knowledge or recklessness is sufficient to establish the element of |
| recklessness: s 60(3) Crimes Act. Accordingly, the fourth element will be satisfied if the | |
| person knew there was no consent, or if the person did not consider whether there was | |
| consent, or if the person realised the possibility that the other person might not be | |
| consenting, but went ahead regardless: Director of Public Prosecutions v Walker [2011] | |
| ACTCA 1 at [53], referred to in Gillard v R [2013] ACTCA 17 at [105]. | |
| 12․ | In the court below, it was undisputed that the appellant massaged the complainant at the |
| Spa Mint on the afternoon of 21 January 2019. It was also not disputed that the appellant | |
| asked the complainant, “do you want me to massage your whole chest?” and that the | |
| complainant’s reply was an affirmative one; either “sure”, or “yes that would be good.” | |
| 13․ | However, each of the above elements were disputed. In relation to the first element, the |
| factual contest between the appellant and the prosecution was where and how the | |
| appellant touched the complainant on her chest area. The complainant asserted the | |
| appellant had touched her whole breasts, including the nipple and nipple area (the | |
| areolae) in a sexual manner. The appellant denied that he touched the complainant’s | |
| nipples and the areolae and denied cupping the complainant’s breasts. He asserted he | |
| had used massage techniques around the outer perimeters of the complainant’s breasts | |
| and between her breasts. | |
| 14․ | If it was accepted by the magistrate that the appellant did touch the perimeter of the |
| complainant’s breasts and in between the breasts, then the magistrate would have to | |
| consider whether the appellant’s conduct was performed for his sexual gratification (that | |
| is, whether it was indecent according to ordinary standards). | |
| 15․ | Alternatively, if it was established beyond reasonable doubt that the appellant had |
| deliberately touched the complainant’s nipples and areolae, then the appellant accepted | |
| that such an act had been performed with the intention of obtaining sexual gratification | |
| (that is, it was inherently indecent according to ordinary standards). |
Evidence on the appeal
| 16․ | In the court below, the prosecution tendered exhibits, including a client consultation form |
| signed by the complainant, statements from a complaint witness and the police | |
| informant, and a CD recording of the record of interview conducted by the police with the | |
| appellant. The prosecution also played a recording of the evidence-in-chief interview, | |
| conducted with the complainant by the police in the court below. The complainant and | |
| the appellant then also gave oral evidence in court. The appellant tendered one | |
| document, which was a new massage consultation form which the appellant created | |
| after the incident. | |
| 17․ | While the CD recordings of each police interview were before the Court on appeal, only |
| the transcripts of the evidence given by the complainant and the appellant in the court | |
| were available. | |
| 18․ | Both parties submitted that a judge on appeal should not look at the CD recording |
| because it would create practical issues of imbalance, in that the Court would only have | |
| half of the evidence in visual form. | |
| 19․ | In that regard, the appellant referred to authorities such as Pell v The Queen [2020] HCA |
| 12; 268 CLR 123 (Pell) at [36]-[38] and SKA v The Queen [2011] HCA 13; 243 CLR 400 | |
| (SKA) at [28]-[30]. In SKA, French CJ, Gummow and Kiefel JJ referred to the potential | |
| for an imbalance to be created in cases where only the complainant gave evidence via | |
| video recording, or where only part of the witness’ evidence was recorded (which is the | |
| case here), and thus it may not have been a fair representation of the witness’ evidence | |
| as a whole: SKA at [28]-[29]. | |
| 20․ | In Pell, the High Court affirmed what was said in SKA at [36]-[38], stating at [39] (footnote |
| omitted): |
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the
record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court
is satisfied that the jury, acting rationally, ought nonetheless to have entertained a
reasonable doubt as to proof of guilt.
| 21․ | Although Pell and SKA were cases which involved a jury trial, the ground of appeal is |
| the same as that under consideration in the present appeal of the trial judge’s finding of | |
| guilt. The same issue arises notwithstanding that the factfinder was a magistrate, that is, | |
| of a potential imbalance arising from only part of the evidence being recorded (namely, | |
| the police interviews). | |
| 22․ | Further, there is a question of what forensic purpose may be served in reviewing a |
| recording on appeal. In Stevenson v R [2022] NSWCCA 133; 299 A Crim R 457, the | |
| court stated at [45]: |
A real forensic purpose must be demonstrated for the Court to view the recording: CLC v R [2015] NSWCCA 248 at [74]-[77]; Scott v R [2020] NSWCCA 81 at [50]-[54]. The Court should be conscious of the ramifications for the practical workload of this Court if the viewing of recordings of evidence became a common practice for this Court: CLC v R at [78], [93]- [95], [101]; AZ v R [2018] NSWCCA 294 at [142].
| 23․ | No forensic purpose was identified here. I have read the transcripts of the evidence-in- |
| chief interviews and the evidence given in court by the appellant and the complainant. | |
| However, I have not viewed the CD recordings. |
Magistrate’s reasons
| 24․ | A detailed summary of the Magistrate’s reasons has already been given in McFarlane at |
| [29]-[53]. Because of the nature of each of the grounds on this appeal, it is important to | |
| understand what the magistrate’s reasoning process was, and which findings on the | |
| contested facts led the magistrate to the conclusion of the appellant’s guilt beyond | |
| reasonable doubt. I have therefore set out the summary in full, respectfully adopting it | |
| for the purpose of considering this appeal on remittal (emphasis added): |
29. The magistrate identified the main differences between the evidence of the complainant and the respondent as follows:
(a) Whether the respondent had said “do you want me to massage the rest of your chest?” as claimed by the complainant or “do you want me to massage the
whole of your chest?” as claimed by the respondent.
(b) Whether or not the nipples were touched. (c) The manner in which the respondent was touching the complainant’s breasts. 30. The magistrate reminded herself that the question was, having regard to the
respondent’s sworn denials, she could be satisfied beyond reasonable doubt of the
complainant’s allegations. She also gave herself a Murray direction. She identified the
elements of the offence.
31. She referred to the decision in R v Schippani [2012] ACTSC 108; 265 FLR 197 which was relied upon by the respondent and the explanation by Penfold J of circumstances
in which “the conduct complained of is inherently highly susceptible to misinterpretation,
and it is possible that the two participants in an incident of this sort could quite honestly report entirely different perceptions of how the beauty treatment was administered”: Schippani at [55].
32. The magistrate indicated that if she accepted the respondent’s evidence that he only touched the complainant’s outer breast area and in between the breasts, she
needed to consider whether the prosecution had proved that the respondent’s
conduct was performed for his own sexual gratification. On the other hand, if she
accepted the complainant’s evidence that the respondent did touch her nipples
and areolae then the respondent accepted that such conduct would be considered unequivocally sexual and hence she was not required to find that the act was done with the intention of gaining any sexual gratification.
33. The magistrate then turned to determining what conduct occurred. She first considered the evidence of the complainant and set out extracts from the transcript of the evidence-in-chief interview and cross-examination. The extracts involved the
complainant describing the respondent “fondling” and “cupping” her breasts, “moving them, like sort of groping”. It was done in “more of a sexual way than any kind of
muscular massage” and “it didn’t seem to be targeting anything”. It felt like “feeling me
up from my hips and up to my breasts”, “feeling my entire breasts including the nipple”. He was “definitely lingering in the area” and not “touching in passing”. In her evidence-
in-chief interview she had used the expression “my nipples or the area with the nipples...” and it was suggested to her in cross-examination that she was unsure
whether the defendant had touched her nipples. The magistrate referred to her
explanation: “I was more trying to indicate that his hand had been on that area
and it is very hard to distinguish nipple and areola in that if you are touching one
you’re most likely touching another”. She had agreed that she did not see him
touching her nipples and said “but I felt it, so I can’t 100 percent confirm that I
saw his fingers touch my nipples but I felt it and that’s my recollection”.
34. The magistrate then turned to the evidence of the respondent. In his interview with
police, he said he had exposed the complainant’s breasts but had “no like sexual
interest in doing that”. He said he was using standard techniques of “effleurage and
petrissage” he worked on the “side of her ribs, so under the breast tissue, sort of
pressing through the ribs” and then re-draped her. He described effleurage as flowing
long strokes and petrissage as “kneading”. He also described “myofascial release”. The
respondent was asked how he knew how to conduct a massage of the breasts and said:
I guess that’s more like, it’s like intuitive use of the techniques I have learnt.
Um, yeah, they never told, taught us to treat breasts so I use like a conceptual learning to just apply that knowledge to treat the area, to treat the breast area. Kind of the same way you would treat a scalp I guess.
35. He said he went to her breast area “probably four times”. He described the process of
performing effleurage then petrissage on one side, then the other and then going down
to the ribs and back towards the side of the neck or the shoulders.36. He specifically denied touching her nipples at any point with his fingers or his
hands. He said this was “[b]ecause touching the nipples or that specific areola area is, I believe sexual”. He denied cupping the complainant’s breasts at any
stage “[b]ecause that’s sexual”. He said he had not used myofascial release on the
complainant’s breast tissue.
37. The magistrate then assessed the witnesses. She described the complainant as “a very impressive witness”, answering questions “directly” and being “frank that her
perceptions of the incident relied on what she felt ... and that she could not see
anything”. She said that the complainant “did not appear to be exaggerating any aspect
of her account and was honest about her feelings immediately after the incident and as
to her uncertainty about what, in fact, had happened”. She recorded that the
complainant had maintained a consistent account in her evidence and had “withstood
vigorous cross-examination and was definite that her nipples and areola had been touched and that the massage of her breasts felt purposely sexual and not like the
massage of other parts of the body”.
38. She referred to the evidence of the complainant’s boyfriend whose statement had been
tendered. He gave complaint evidence. The magistrate said that the complaint evidence provided some evidence of the allegations made by the complainant and that his observations of the demeanour of the complainant could be relied upon to support the credibility of the complaint. The magistrate appropriately directed herself that a false statement did not become more reliable because it was repeated on more than one occasion.
39. In relation to the respondent, the magistrate recorded that he “presented very well in
court”, “listened to questions asked and ... attempted to answer all questions”. She did
record that at times he did not directly answer questions and appeared “evasive or obtuse” but the magistrate did not consider this was significant and thought that “it may
be explained by him trying to be as accurate as he could in his explanations or answers”.
However, her Honour identified aspects of the respondent’s evidence that gave her
“concern as to his honesty and reliability”.
40. Firstly, the respondent had described the myofascial release technique and said that
he performed this on her ribs. However, the complainant did not describe any touching
consistent with that type of massage having occurred.41. Secondly, the respondent stated that the reason he massaged her breasts was because she wanted him to do so and had suggested this by exposing part of her breast. He thought that the sheet had moved down and exposed the very top of her nipple on the left side. He thought it must have been deliberate. The complainant had denied any movement of the sheet. The respondent described an incident during his training where a woman had deliberately moved the sheet down to expose her breasts. He found this action quite bizarre and immediately grabbed the sheet and brought it back up to cover
her breasts. The magistrate said that she found the respondent’s account that the complainant’s possible deliberate exposure of her breasts was meant to indicate that
she wanted her breasts massaged was “implausible”. That was because the respondent
“was unable to explain why this incident was different to the previous incident in training
where he had just moved the sheet back to cover the client’s breasts”.
42. Thirdly, the respondent had stated that he asked her the question about massaging her whole chest because he thought that was what she wanted and that it would relax her.
He had said that she had been “twitching” and “moving around a little bit” before the
treatment of her breasts and when her breast was exposed he had thought that maybe
she wanted treatment there and that it would relax her. He said that once “I got her
consent and started she just started to relax”. When giving evidence in court he said that he had asked her if she was okay because she “seemed just like too still”. The
magistrate said “[t]he fact that she became so still so as to alert the [respondent] that
she may be uncomfortable is also inconsistent with what he had said in his taped record of interview; that is, that she had become more relaxed once he started the breast
massage.” The magistrate found it implausible that when the breast massage began
the complainant “would have appeared more relaxed or more sleepy”.
43. Fourthly, the magistrate pointed to the fact that the respondent had no training in breast massage and that this suggested that it was not usual practice of massage therapists.
She found it implausible that in those circumstances, and the respondent’s admitted
awareness that breasts are an intimate or erogenous zone, that he had thought that it was okay to touch her breasts just because he had asked the question about massaging
her “chest”. The magistrate found that the word “chest” would not ordinarily convey the
meaning that the breasts would be touched.
44. Fifthly, she referred to the respondent’s evidence that he did not want to say the word
“breast” because that would make the situation too sexual and possibly trigger “a fight
or flight response”. The magistrate found that this evidence demonstrated his own
awareness that breasts are not part of a massage and are considered sexual parts of the body. The magistrate found it implausible that the respondent would think that the
word “breast” would make the situation sexual, but would then proceed to expose the
complainant’s breasts and touch her breasts.
45. Sixthly, the magistrate referred to the “new consultation form” which drew a distinction
between breasts and chest. She relied on this to conclude that the difference between breast and chest was understood by the massage therapist. She did not accept that the
complainant’s agreement to the touching of her chest included her breasts.
46. The magistrate then turned to consider the respondent’s good character. He had no
offences of similar nature. He had remained employed in the same business for the last two years. He had taken action to ensure that clients of the business understood consent to the touching of specific areas. She gave herself an appropriate direction about the ways in which good character could be used: as going to whether a person of such character would have committed the offence as well as being used to support his credibility. However, in relation to the first way in which character might be used, she pointed out that the respondent had limited experience and had only been employed as a masseur for two to three weeks. Prior to that, while training at the Canberra Institute of Technology, he would have been supervised. The magistrate said
that “the good character evidence does not assist me in considering the likelihood of
him having committed the offence alleged”. So far as the second use of good character
was concerned, she said “everyone is initially a person of good character until they are
not” and did not give much weight to his good character and supporting the proposition
that he was less likely to give a false account when talking to police.
47. Insofar as the respondent relied upon having made admissions against his own
interests when talking to the police, the magistrate said that the fact that he told the truth about his lack of training did not indicate that he must be telling the truth about the particular incident.
48. The magistrate recorded that “after careful consideration of the [respondent’s]
evidence” she rejected the following aspects of his evidence:
(a) that the complainant was fidgety during the first part of the massage; (b) that she moved the sheet deliberately to expose her breasts; (c) that this was done to indicate that she wanted her breasts massaged; (d) that he did not touch her nipples or areolae; (e) that the complainant became more relaxed once he started to massage her breast area; (f) that he asked her whether she was okay; and (g) that he had used myofascial release techniques on her ribs. 49. Having rejected those parts of his evidence, the magistrate considered whether the prosecution had proved the offence beyond reasonable doubt based solely on the
complainant’s account. She referred to the cross-examination of the complainant about
actions that she might have taken such as removing her eye mask, telling the
respondent to stop or pulling up the sheet. She referred to the complainant’s
explanation about why she felt unable to do that and accepted her reasons as “plausible reasons”. She also referred to the statutory direction in s 80C of the Evidence
(Miscellaneous Provisions) Act 1991 (ACT) that a person is not to be regarded as consenting just because they did not say or do anything to indicate that the person was not consenting or that they did not protest or physically resist.
50. The magistrate said that she found the complainant to be an honest and reliable witness and accepted her evidence. She was satisfied beyond reasonable doubt of following:
(a) the respondent touched the complainant’s breasts in a sexual manner; (b) that the touching was deliberate and not just in passing in massaging other areas of her body; (c) that the respondent touched her nipples and areolae with his hands; (d) that he removed the sheet to her stomach and then pushed it further down to her hips as he was moving his hands down to that area; and (e) that he left her breasts exposed for this part of the massage. 51. As to consent, the magistrate referred to the evidence of the complainant that she never gave consent for this type of touching and the evidence of the respondent that his question seeking permission was only for the outside areas and in between the breasts.
The magistrate said that “having rejected that this was the action performed, the
question cannot be seen as seeking consent for the type of touching that occurred.”
52. In relation to recklessness, the magistrate referred to the lack of training that the respondent had in this area and his own admission that touching the nipples and areolae and cupping the breasts would be considered sexual. The magistrate was satisfied that the defendant knew or was at least reckless that the complainant had not consented to this type of touching. She therefore found each element proved beyond reasonable doubt and the respondent guilty of the offence.
53. Two points should be noted about the reasoning of the magistrate. First, it was
based upon a finding beyond reasonable doubt that the act in question involved
the touching of the complainant’s nipples and areolae. Second, that conclusion
was reached after a detailed examination of the evidence given by the complainant and the respondent and careful consideration of the credibility and reliability of their evidence. Detailed reasons based upon particular aspects of the evidence were given by the magistrate for rejecting the evidence given by the respondent on the critical issues and for accepting the evidence of the complainant. Those conclusions were clearly influenced by the impressions of the witnesses when giving oral evidence before the magistrate.
| 25․ | The passages that have been emphasised in the summary of the reasons in the court |
| below are to highlight that the basis for the finding of guilt related to the touching of the | |
| complainant’s nipples and areolae and the sexualised touching (cupping) of the | |
| complainant’s breasts. | |
| 26․ | The above summary also records the directions that were made by the magistrate and |
| no complaint is made about those on appeal. |
Ground 1 – was the verdict unreasonable or unsupportable on the evidence?
| 27․ | The applicable principles are those set out by McCallum CJ (with whom Collier J agreed) |
| in Garay v The Queen (No 3) [2023] ACTCA 2 (Garay) at [12]-[15] relevantly as follows | |
| (emphasis added): |
12. The approach to be taken to a ground that a verdict is unreasonable, or cannot be
supported, having regard to the evidence is well settled. As submitted by the appellant, the law remains as stated by the High Court in M v The Queen [1994] HCA 63; 181 CLR 487 at 493 [7] (Mason CJ, Deane, Dawson and Toohey JJ). The question the
appellate court must ask itself (in an appeal after a trial by jury) is “whether it thinks
that upon the whole of the evidence it was open to the jury to be satisfied beyond
reasonable doubt that the accused was guilty”.
13. In Filippou [v The Queen [2015] HCA 29; 256 CLR 47], an appeal from New South Wales, the High Court held that the approach is the same after a trial by judge alone:
at [11]–[12] (French CJ, Bell, Keane and Nettle JJ); [81]-[82] (Gageler J). That
conclusion was based on the language of the relevant New South Wales provision, s 133(1) of the Criminal Procedure Act 1986 (NSW), particularly the fact that the section
equates a judge’s finding of guilt with the verdict of a jury “for all purposes”. As already
noted, s 68C(1) of the Supreme Court Act is in substantially the same terms. It may accordingly be taken that the test in M applies equally to a finding of guilt by a judge in the Australian Capital Territory.
14. The question for the appellate court is one of fact. It is not to be confused with the question of law whether, taken at its highest, the evidence can support the
verdict. As explained in M, it is a question of fact “which the court must decide by making its own independent assessment of the evidence”: at 492 [6]. In Libke v The
Queen [2007] HCA 30; 230 CLR 559 at [113], the question was framed as being
whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, “which
is to say whether the jury must, as distinct from might, have entertained a doubt
about the appellant’s guilt.” (Emphasis in original.) However, the High Court has since
clarified that the question so framed is not to be understood to qualify the enduring
principles stated in M: see Pell v The Queen [2020] HCA 12; 268 CLR 123 at [43]–
[45]; Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [13]. To say that a jury
“must have had a doubt” is another way of saying that it was “not reasonably
open” to the jury to be satisfied beyond reasonable doubt of the commission of
the offence: Pell at [45].
15. Finally, it is well settled that, in determining that question, account must be taken of the advantage which a jury has in seeing and hearing the evidence: M at 494 [8]. In Filippou, the High Court treated that principle as being of equal application in an appeal from a finding of guilt by a judge: at [12] (French CJ, Bell, Keane and Nettle JJ); [83] (Gageler J). Despite this well-established principle, appellate courts are repeatedly invited to place more faith in their own logic and intellect than to give effect to the
acknowledged advantage of being immersed in the atmosphere of the trial. …
| 28․ | The above extract also referred to Libke v The Queen [2007] HCA 30; 230 CLR 559 at |
| [113]. There, Hayne J (Gleeson CJ and Heydon J agreeing) stated that it is not sufficient | |
| to show that there was material which might have been taken by the jury to be sufficient | |
| to preclude satisfaction of guilt to the requisite standard (beyond reasonable doubt). The | |
| same point was made in Warne v The King [2023] ACTCA 1; 374 FLR 311, where, having | |
| similarly referred to the test as articulated in M v The Queen (1994) 181 CLR 487 (M v | |
| The Queen), the Court stated (relevantly) at [29]-[30]: |
29. …the role of the Court in dealing with this ground of appeal is not limited to
considering whether there was evidence capable of satisfying a jury of the
appellant’s guilt. The Court must conduct its own independent review of the
evidence and consider whether it entertains a reasonable doubt as to his guilt. However, the Court will not act on its own view that there exists reasonable doubt if its disagreement with the jury can be explained by the jury having had the advantage of seeing and hearing the witnesses during the trial.
30. To put the point another way, success for the appellant on this ground involves a subjective event (the Court has a reasonable doubt) from which a normative proposition (the jury should have had the same doubt) must be established (cf R v Bragias [2016] NSWCCA 219, [5], [8] (McCallum J)). Proceeding from one to the other, in the light of M, involves excluding the advantage enjoyed by the jury as an explanation for it not having had the doubt entertained by the Court. That will usually be achieved if (as it was
put in M) the evidence as it appears from the record “contains discrepancies,
displays inadequacies, is tainted or otherwise lacks probative force”.
| 29․ | The words emphasised in [30] of the extract above are a reference to the following |
| passage from M v The Queen at 495 (emphasis added, citations omitted): |
… In most cases a doubt experienced by an appellate court will be a doubt which a jury
ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the
evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act
and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to
be satisfied beyond reasonable doubt that the accused was guilty. …
| 30․ | As can be seen from the extracts set out above, the Court considers whether on its own |
| independent assessment, on the whole of the evidence, it was open to the magistrate to | |
| be satisfied of the appellant’s guilt beyond reasonable doubt. In that assessment, it is | |
| not enough for the Court to point to the evidence that was capable of satisfying a jury of | |
| the appellant’s guilt beyond reasonable doubt. As stated in Dansie v The Queen [2022] | |
| HCA 25; 274 CLR 651 at [37] (and cited by Mossop J in McFarlane at [61]), an | |
| independent review of the evidence requires more than mere satisfaction as to the | |
| existence of a pathway to proof of guilt beyond reasonable doubt. Equally though, it is | |
| not enough to point to evidence that might have been sufficient to preclude a finding of | |
| guilt beyond reasonable doubt. | |
| 31․ | As to the latter, it is helpful to keep in mind what was said in Lee v R [2023] NSWCCA |
| 203 (Lee) at [28] (per Kirk JA, Button and Lonergan JJ agreeing) relevantly (emphasis | |
| added): |
… A great many cases – especially those involving sexual assault – depend upon the jury’s
evaluation of the evidence of one person in light of the evidence of another or others. That
a complainant’s evidence is contradicted by apparently plausible evidence of a
defendant does not mean the defendant is entitled to be acquitted on appeal. Nor does
the fact that a complainant’s evidence was uncorroborated mean that the jury must
have entertained a reasonable doubt: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [53]. Witnesses for either side may forget, exaggerate, reconstruct and/or lie. Determining where the truth lies when faced with competing testimony is a commonplace
feature of criminal trials. The jury is “the body entrusted with the primary responsibility of
determining guilt or innocence”: M at 493. The appeal court must apply the principles
summarised above.
| 32․ | Further, in the circumstances here, the fact-finder was a magistrate and not a jury and |
| this has significance. In Garay, McCallum CJ stated at [27] (emphasis added): |
The point is that care must be taken in applying principles concerning the approach taken in an appeal from the verdict of a jury to an appeal from a finding of guilt by a judge. As
established by the decision of the High Court in Filippou, the question for each kind of ground
of appeal is the same, whether the appeal follows a trial by judge or by jury. However, in an
appeal following a trial by judge alone, to the extent that a ground of appeal is capable
of being informed by the judge’s reasons, the approach might be different. A helpful
analysis of the ways in which a different approach might be taken according to the issues
raised on appeal is provided in the separate judgment of Gageler J in Filippou at [83] where
his Honour acknowledged that a court of appeal might, in a proper case, adopt
unchallenged intermediate findings of fact of the trial judge, without need for independent assessment, whereas in other cases the court will have to undertake a
full independent assessment of the evidence without regard to the trial judge’s
reasons.
Cases turning on the credit of the complainant
| 33․ | It is also important to keep in mind, when undertaking an independent review of the |
| evidence, that this was a case where the primary evidence relied upon was the direct | |
| evidence of the act of indecency coming from the complainant as to what occurred. That | |
| is, the complainant gave direct evidence of what she said, heard, felt and otherwise | |
| experienced during the massage. In those circumstances, the question of her credit was | |
| critical. To use the language of McCallum CJ in Garay at [41] in making the point that a | |
| case involving direct evidence of what occurred was not a circumstantial case, the | |
| appellant’s guilt was “proved, or not, according to the judge’s assessment of the evidence | |
| of the complainant.” |
The evidence before the magistrate
| 34․ | The case here turned on the factual dispute between the complainant and the appellant |
| as to the conduct itself. | |
| 35․ | Establishment of the other elements beyond reasonable doubt flowed from that finding: |
(a) The appellant accepted that touching the complainant’s nipples, areolae and cupping her breasts was sexual conduct (that is, the conduct constituted an
indecent act).
(b) The appellant’s evidence was that he did not seek the complainant’s consent for such conduct. He sought permission to massage the chest area, which in
his mind included the outer breast area and in between the breasts. The
complainant also said that she did not give consent for the specific conduct
complained of (being the touching of the nipples, areolae and cupping of her
breasts). Accordingly, if it was established that the conduct referred to occurred,
the evidence was clear beyond doubt that there was no consent for it.
(c) As to the appellant’s state of mind, when the appellant asked permission to touch the complainant’s chest, his state of mind was that he was seeking
confirmation that the complainant wanted him to massage the breast tissue, not
that he was seeking the complainant’s permission to touch her in the manner
giving rise to the complaint (being the sexualised touching of the breasts),
including her nipples and areolae. Putting the above together, if it was found
proven beyond reasonable doubt that the appellant did touch the complainant’s
areolae and nipples, then the appellant knew that he had not asked for
permission. Although the appellant’s submissions on appeal endeavoured to
put recklessness in issue notwithstanding the magistrate’s findings as to the
conduct (discussed below), on the appellant’s own evidence as to his state of
mind, it was similarly not a matter about which there was any reasonable doubt.
| 36․ | Accordingly, the focus of this ground is on whether it was open to the magistrate to find |
| beyond reasonable doubt that the conduct occurred in the manner alleged by the | |
| complainant. In that regard, the credit of the complainant was a critical component of | |
| the magistrate’s findings in determining the contested issue of whether the appellant | |
| deliberately touched the complainant’s nipples and the areolae. | |
| 37․ | This is what the complainant said in her evidence-in-chief interview with police (emphasis |
| added): |
…so my breasts were uncovered and he was gradually, sort of massaging the area around
by breasts and between my breasts. But then that ended up becoming – he just ended up
sort of really fondling my breasts in what I perceived to be quite a sexual manner. He
– he was cupping my breasts and moving them around and feeling them and definitely
at the point where he was, he had his hands on my nipples or the area with the nipples,
so I felt quite uncomfortable. He moved his hands away from the area and sort of went back to my shoulders and neck, but the sheet stayed at my belly button the whole time. He
didn’t cover me back up so I felt quite exposed, and then he would sort of move back from
my shoulders, back to my breasts and did that I think one more time and he also began going from my breasts down to my stomach and then down to my hips which then pushed the sheet down to my hips.
| 38․ | In the court below, this is what the complainant said: |
… he was holding, holding my breasts and yes, just, yes, it felt like fondling and sort of
moving them, like sort of groping, yes, and definitely more of a, what I felt was more of a
sexual way than any kind of muscular massage.
| 39․ | She was asked which part of the appellant’s hands was used to touch her breasts and |
| she answered: |
I couldn’t see but it felt like the whole hand. You know, it felt like his whole hand. He was
just cupping and feeling my entire breasts including the nipple.
| 40․ | The complainant’s evidence expressly dealt with whether the touching was deliberate. |
| She said as follows: |
… The emphasis, I would say, was on my breasts but he would move from my breasts to my
stomach, to my hips and back. It didn’t, it didn’t feel like a flow.
…
… the points at which he was touching my breasts were very distinct and he was definitely
lingering in the area. It was – I would definitely say that time was dedicated to the area. It
wasn’t touched in passing.
| 41․ | Under cross-examination, the complainant was asked to clarify what she meant by the |
| appellant cupping her breasts: |
… just so we can be clear what you mean by “cup”, you mean, don’t you, his hands
underneath your breasts with the thumbs pointing inwards like so? Can you see my hands
or not? --- Yes, I can see your hands. Again, I can’t be precisely certain of the positioning of
his hands but to me it was the feeling of someone holding my breasts and cupping my breasts
in the sense of putting his hands around my breasts.
| 42․ | It was put to her that she was not precisely sure what the position of the appellant’s |
| hands was on her breasts when she said the appellant was cupping them. She | |
| answered: |
In a sense I couldn’t see, but I definitely felt them in the sense I knew that his hands were
on my breasts.
…
…The thing that stuck in my memory was that he was holding and groping my breasts, not
just putting his hands underneath them.
Okay. So, again, it’s clear, I suggest, that your memory of that is not 100 per cent clear. Do
you accept that? ---I suppose not 100 per cent but probably 80 or 90.
| 43․ | The complainant telephoned her boyfriend immediately after the massage. This is the |
| relevant part of his evidence: |
… I received a phone call from my girlfriend… who had just come out of having [the
massage]…
I immediately noticed that [the complainant] appeared upset and not herself however was reluctant to tell me what had happened initially. Eventually [she] told me that she had just had a massage and the male masseuse after having massaged her shoulders and top part of her pecs asked if [she] wanted her chest done. [She] agreed with the understanding that the offer meant a deeper massage of the pectoral muscle. She then told me that the masseuse moved the sheet down exposing her breasts and then proceeded to massage her breasts intensely and repeatedly.
| 44․ | This is what the appellant said in the witness box in an exchange with his counsel: |
… Now, moving on to the next stage of the massage. Why did you massage [the
complainant’s] breasts? ---Because I thought she wanted me to.
All right. Why did you think that? --- Because she exposed part of her breast to me.
All right. Now, in your interview you said that that’s what you thought at the time but then
looking back you thought it was possible that it was an accident. Do you still accept that
today? ---Yes, it is possible it was an accident.
All right. Now, at the point that the sheet had been partially lowered to expose part of one of
[the complainant’s] breasts were you sure, at that point, that she wanted you to [massage]
her breasts? --- No, I wasn’t sure.
All right. So what, if anything, did you do at that point? --- So then I asked like, ‘Do you want me to massage your whole chest?’
All right. Now, in terms of those words do you say to her Honour that they are the exact words that you said or just words to that effect? ---The exact words.
All right, and did she reply to that? ---She said, ‘Yes, that would be good.’
All right. Thank you. Now, could you explain in some detail the next part of the massage,
specifically how you massaged [the complainant’s] breasts? --- So I draped down to about
her bellybutton or waist level and then I used effleurage. I can explain the techniques again if you would like, but I used effleurage to first spread oil around the outsides and the inside, also reaching to her rib and sort of where the sheet is laid, so just towards the bellybutton area. Then I did effleurage more directly and I guess purposely around the outsides of the tissue and then more towards the inside of the tissue and then the other side, so swapping from one side to the other. Then I did petrissage or the kneading movement on one breast tissue, like one side, and then moving across and then to the other side, trying to keep a flow. Then using a slightly longer stroke of effleurage, I then start[ed] including other parts of the body at the same time, so going down to the rib and back up towards the side of the neck or shoulders and then repeating that through the centre and through the other side.
…
And did you touch her nipples at any point with your fingers? --- No.
Or at any point place your hands on her nipples? --- No.
Why not? ---Because touching the nipples or that specific areola area is, I believe, sexual.
Thank you. Did you cup [the complainant’s] breasts at any stage during the massage? ---
No.
Again, why not? --- Because that’s sexual.
| 45․ | Previously in an interview with police, the appellant had said: |
… Then the sheet moved down and it was exposing the very top of her nipple on her left
side, just the left side. And then I asked her – from her body language, from what she was doing, I said “Do you want me to massage your whole chest?” And she said, “Oh, yeah that
would be good.” And so I undraped her, exposing her breasts, um, and then proceeded to
massage. Yep, it was purely for relaxation. I have no, like, sexual interest in doing that, it
wasn’t for any sort of erotic feeling. And it was just standard relax techniques, effleurage,
petrissage. I wasn’t doing any sort of nipple things or anything like that. …
46․ The appellant was asked the question whether he noticed the complainant was
uncomfortable or anything, in terms of her body language. The appellant answered:
She actually seemed more relaxed ‘cause like I said beforehand, she was like moving her
hand around. Her left hand kept moving around and maybe she was scratching, I don’t know. And then yeah, once I – so once we sort of moved on and even, like, after re-draping and going more in to her, she was like falling asleep. That’s what it seemed like.
| 47․ | In the witness box, under cross-examination, the appellant said that in a massage |
| context, when he spoke of “the whole chest”: |
---The whole chest, in this instance, due to her exposure, includes breast tissue.
| 48․ | The reference to “exposure” was a reference to the sheet moving down to expose part |
| of the left breast. | |
| 49․ | The appellant was also asked in the witness box whether he said anything to the |
| complainant while he was massaging her breasts. This is what he said: |
---Yes. Like halfway or so through that particular part I said, ‘Are you okay?’
All right, and why did you ask her that?---She seemed just a bit like too still. After being fidgety she was like almost too still.
| 50․ | Under cross-examination it was put to the appellant that he relied on the question about |
| doing the “whole chest” as an opportunity to touch the complainant’s breasts. The | |
| appellant answered: |
---I do remember asking specifically ‘whole chest’ because I didn’t want it to seem sexual to her. I didn’t want her to make – I didn’t want to make her feel I was coming across as sexual
because I wasn’t, so I used ‘whole chest’ considering I had already treated her chest
previously. There was no, there was no other meaning to ‘whole chest’ that I could think of
in that instance.
| 51․ | The prosecutor then explored that explanation, with the following exchange occurring: |
And you have just said that you didn’t want to use the word ‘breasts’ because you didn’t want
her to feel like you were being sexual?---That’s right.
So you were concerned about whether or not she would think it was sexual?---Yes, you could say that.
Because you were concerned that touching her breast tissue or talking, even talking about her breast tissue might be construed as sexual?---Because it was a relaxation massage. I really just wanted her to continue to relax or relax beyond where she was without twitching
and so if I used the term ‘breasts’ immediately I feel like that would either (1) arouse her, and
because of the exposure I couldn’t tell, or (2) it would trigger some kind if fight/flight situation
and then she wouldn’t relax, whether she had consented or not.
| 52․ | The prosecutor then put to the appellant that he used the word ‘chest’ when he was |
| seeking permission to massage the complainant’s breast tissue in order to give a ‘cover | |
| of legitimacy’ to what followed. |
I’m asking you specifically about the breasts and you have given evidence that you didn’t
want to use the word ‘breasts’ because it might arouse her or trigger a fight or flight response;
yes?---Yes.
So instead you just touched the breasts?---Yes.
Okay. It’s the case that you used the term ‘chest’ to be deliberately opaque?---I used the
term ‘whole chest’ after already treating the main parts of her chest.
And the question gave you cover?---I wouldn’t call it ‘cover’. It just keeps the situation calm.
So that you don’t arouse her if you use the word ‘breasts’?---Well, I don’t want to arouse a
patient or a client.
It gave you a cover of legitimacy?---I just said it wasn’t a cover.
The appellant’s submissions
| 53․ | The appellant submitted (in summary): |
(a) It was not open to the magistrate to be satisfied beyond reasonable doubt that he touched the complainant’s nipples or areola, or otherwise touched her in an
unequivocally sexual way.
(b) It was not open to the magistrate to find that the appellant’s conduct was indecent.
(c) The magistrate erred in rejecting the reasonable possibility that the appellant was giving truthful evidence when he testified that he believed the alleged
victim’s answer to his question indicated she consented to him touching her in
the manner he admitted he did (that is, he touched part of her breasts while
massaging the areas immediately above, below and adjacent to her breast
area).
(d) The Court would have significant doubts about the reliability of key parts of the complainant’s memory and evidence, leading to a reasonable doubt as to
precisely what conduct the appellant engaged in and his state of mind at that
time. This includes the complainant being unsure about what happened during
the massage and that her memory was only “80 or 90” percent accurate at the
time of hearing, and that she was not even “100%” sure if the appellant’s hands
had touched her nipples or not, as she could not see his hands during the massage due to the fact that she was wearing a face mask. However, she did
say she was sure it felt like he was touching her nipples.
(e) There were factual disputes over the following:
(i) Whether the sheet used to drape over the complainant during the massage was deliberately lowered by either the appellant or the
complainant, so as to expose one of her breasts, or whether it
accidentally slid down whilst the complainant was moving about.
(ii) Whether it was impossible for the appellant to have placed his hands
underneath the complainant’s breasts in a cupping motion, pushing them
up, while he was standing at the head of the massage table. The
complainant conceded that such had not occurred but that was not what
she had meant by the use of the term “cupped”.
(iii) The complainant’s evidence in the police interview was that the
appellant had touched “my nipples or the area with the nipples”
(emphasis added). Under cross-examination, the complainant had
stated that her use of the word “or” had been unintentional.
(f) It was not open to the magistrate to be satisfied beyond reasonable doubt that the appellant was reckless as to whether the complainant had misinterpreted
his question as to whether she gave permission to massage her whole chest,
and whether she only consented to a massage of the part of her chest
surrounding her breasts.
(g) The reasonable possibility that the appellant was being truthful in his evidence could not be excluded for seven reasons:
(i) The appellant’s evidence was consistent in the police interview and in the witness box.
(ii) The appellant was not evasive.
(iii) The appellant made some admissions against interest. The two
suggested were that the appellant accepted the complainant was an
attractive woman and accepted that he might become sexually aroused
while massaging a female client (although he adamantly denied that
occurred in the present case).
(iv) The appellant revised a client consultation form after the incident to
reduce the risk of any misunderstandings in future as to the parts of the
body that the client was consenting to being massaged.
(v) The appellant gave an interview to police, which many accused people
do not do without the benefit of legal advice.
(vi) The appellant’s prior good character made it more likely that he was
telling the truth. The good character evidence, when combined with the
other matters raised, meant that it was not open to reject the appellant’s
evidence on the issue of recklessness.
(vii) The appellant’s demeanour was consistent with him telling the truth.
The respondent’s submissions
| 54․ | The respondent submitted that the complainant’s evidence was cogent, certain, and |
| consistent. The respondent further pointed to the evidence of immediate complaint to | |
| her boyfriend, and his evidence that the appellant had massaged the complainant’s | |
| breasts “intensely and repeatedly”. It was submitted that the complainant’s evidence | |
| provided a sound basis for the magistrate to find the appellant’s guilt beyond reasonable | |
| doubt. | |
| 55․ | The respondent dealt with each of the appellant’s submissions about specific aspects of |
| the evidence, submitting that none of them, whether viewed individually or cumulatively, | |
| would generate any doubt whatsoever as to the veracity and reliability of the | |
| complainant’s account. | |
| 56․ | On the question of the conduct itself, the respondent submitted (in summary): |
(a) Any uncertainty expressed by the complainant relating to the conduct during her evidence related to her being unsure about the appropriateness and normality
of her breasts being touched during the massage, not about whether the
appellant placed his hand on her breasts and how he touched her breasts;
(b) The reliability about key parts of the complainant’s evidence was not affected by a concession in the witness box about her memory not being 100%, noting
that the hearing occurred more than two years after the incident. The
complainant maintained her recollection on the key question of what had
occurred on the day of the incident, which was consistent with her evidence
given to police the day after the incident occurred;
(c) With regard to the specific issues of whether the appellant cupped the complainant’s breasts and touched her nipples:
(i) The “cupping” descriptor was understood in different ways by the complainant and the appellant’s legal representative. The complainant
was clear as to what she meant, that it meant the appellant placed his
hands around her breasts; and
(ii) Similarly, the complainant’s use of the word nipples or area with the
nipples was not the complainant being unsure as to whether the
appellant touched her nipples, but rather the complainant, “trying to
indicate that his hands had been on that area and it’s fairly hard to
distinguish between nipple and areola in that if you’re touching one
you’re most likely touching the other”.
| 57․ | The respondent submitted that the magistrate held reservations about the appellant’s |
| honesty and reliability based on five key aspects of his evidence, as outlined in her | |
| reasons for judgment. These provided ample scope for the magistrate to reject the | |
| evidence of the appellant where it was uncorroborated by, and inconsistent with, the | |
| evidence of the complainant. These were: |
(a) The magistrate found the appellant’s evidence that the complainant had exposed her breast and that the appellant took this as meaning that the
complainant wanted her breasts massaged implausible.
(b) The magistrate also found it implausible that, in the context of his training and his awareness of the sexual nature of breasts, the appellant would consider it
permissible to touch the complainant’s breasts just because he had asked her
whether she wanted him to massage her whole chest;
(c) There were two further discrepancies in the appellant’s evidence:
(i) Why he asked the complainant whether she was “okay” during the massage; and
(ii) The complainant’s reaction to the breast massage;
(d) The appellant’s evidence about applying a particular technique to the complainant’s ribs (myofascial release or MFR) was also found to be
unsatisfactory (either not credible or not reliable), as the complainant had not
described any touching which was consistent with this type of touching; and
(e) The magistrate found the appellant’s explanation for his reluctance to use the word “breasts” during the massage was implausible.
| 58․ | As to discounting the appellant’s good character, the respondent submitted: |
(a) Such evidence may be relevant for two purposes: in affecting the likelihood of the appellant having committed the charged offence and in assessing the credibility of any evidence given by the appellant (relying on Rawsthorne v
Wilson [2018] ACTSC 342 at [58] and the cases there-cited);
(b) While good character evidence may be used by a fact-finder, there is no obligation to do so (relying on Melbourne v The Queen [1999] HCA 32; 198 CLR
1, and Simic v The Queen (1980) 144 CLR 319 at 333-334).
(c) The magistrate considered the probative value of the good character evidence and appropriately justified why it lacked probative value in the particular
circumstances of this case. Importantly, the appellant had only been employed
as a masseur for less than a month. Evidence about the lack of sexual offending
in such a role could have no influence in circumstances where the appellant’s
professional work experience was so limited. It was otherwise open for the
magistrate to place no weight on the appellant’s good character in terms of
credibility.
| 59․ | With regard to the element of recklessness, the respondent submitted: |
(a) Recklessness must be viewed through the prism of the conduct which was found to have been committed by the appellant against the complainant.
(b) Provided that the Court on appeal is satisfied that it was open to the magistrate to find that the conduct engaged in by the appellant towards the complainant
involved the touching of the complainant’s breasts (including the nipples and/or
areola area) in a sexualised manner, the findings as to the conduct being
indecent and that the appellant was reckless as to the complainant’s consent
were inevitable.
(c) The appellant’s own evidence including his statements that:
(i) Touching the nipples and areola and cupping the complainant’s breasts were sexual conduct.
(ii) He did not want to come across as sexual.
(iii) He understood that sexual touching was not performed as part of a
professional massage.
(iv) The appellant’s professional training did not include massaging female
breasts, other than briefly in the context of cancer or operation-related
massages.
(d) Taking the appellant’s evidence as a whole, it was indisputable that the appellant was fully aware that sexualised touching of the female breasts did not
fall within the scope of a professional massage.
(e) The overwhelming inference is that the appellant would have known and appreciated that any consent given in the context of a professional massage to
the touching of the complainant’s chest was for therapeutic purposes only and
did not extend to the sexualised touching of the complainant’s breasts.
| 60․ | The respondent concluded the submission on recklessness as follows: |
… In the absence of the appellant [a]sking for consent to touch the complainant’s breasts in
a sexual manner, the appellant knew or was reckless at the very least that the complainant did not consent to the touching of her breasts in a sexualised manner. Any suggestion to
the contrary – that the appellant did not even realise the possibility that the sexualised
fondling of the complainant had not been consented to in the context of a professional
massage – is simply “at odds with the practical experience of life”.
Consideration
| 61․ | In McFarlane, Mossop J (with whom Kennett J agreed on this point at [93] and [103]) |
| said this at [73] (emphasis added): |
73. Having regard to the different evidence given by the complainant and the respondent on this issue and the way in which that was addressed by the magistrate, any independent review of the evidence would need to address the evidence considered by the magistrate and was an area where the magistrate was likely to have a very significant advantage over the appeal judge. Having regard to the nature of the
complainant’s evidence, which was of deliberate touching of the nipples and the
cupping of the breasts on multiple occasions, a conclusion that any touching of nipples was not deliberate must have involved rejection of the credibility or reliability of the evidence of the complainant. The express findings of the magistrate concerning the credibility and reliability of the complainant indicated that this was a case in which the advantage of the magistrate from having
presided at the trial was significant. The magistrate said:
The complainant was a very impressive witness. She answered each question directly and was frank about her perceptions of the incident relied on what she
felt rather than – and that she could not see anything. She did not appear to be
exaggerating any aspect of her account and was honest about her feelings immediately after the incident and as to her uncertainty about what, in fact, had happened.
The complainant maintained a consistent account in her evidence in court to that given in her evidence-in-chief interview. She withstood vigorous cross- examination and was definite that her nipples and areola had been touched and that the massage of her breasts felt purposely sexual and not like the massage of other parts of her body.
| 62․ | I respectfully adopt what was there set out as to the importance of the trial judge’s |
| advantage with respect to credit here. | |
| 63․ | Having read the transcripts, and as can be seen from the extracts of the complainant’s |
| evidence above, the description of her evidence as being cogent, certain and consistent | |
| is accepted. | |
| 64․ | The complainant was not unsure whether the appellant touched her nipples and areolae. |
| What she was uncertain about was which part of the appellant’s hand did the touching. | |
| The relevant part of the evidence was: |
You have talked about him touching your breasts. Can you say which part of his hands he
was touching them with; the palms, the fingers, the whole hand?---I couldn’t see but it felt
like the whole hand. You know, it felt like his whole hand. He was just cupping and feeling
my entire breasts including the nipple.
When you say ‘including the nipple,’ do you know what part of his hand was touching your
nipple?---I don’t really remember. I would assume sort of like palm but I don’t remember
exactly.
| 65․ | To the extent that reliance was placed on the complainant being “unsure” what happened |
| during the massage, as submitted by the respondent, any doubt the complainant had | |
| following the massage was not about whether the conduct complained of had occurred. | |
| Rather, it was about whether what had occurred was appropriate in a massage context | |
| – that is, whether touching her breasts at all, and more specifically for this appeal, her | |
| nipples, areola and cupping her breasts, was properly part of the standard professional | |
| massage treatment. The appellant’s own evidence was that such conduct was not part | |
| of the training and that was not part of the treatment he gave, because it would be sexual. | |
| 66․ | The asserted discrepancy in relation to the ‘cupping’ of the complainant’s breasts and |
| the apparent impossibility of the action was a discrepancy invented by the legal | |
| representative for the appellant, through mistaking what the complainant meant by the | |
| term used. Cupping is not a term of art and as the respondent submitted, nothing turned | |
| on the word itself; it was the substance of the conduct that was in question. | |
| 67․ | Likewise, the seizing upon the statement that the complainant indicated she was touched |
| on “the nipples or the area with the nipples” as indicating any uncertainty as to where the | |
| complainant was touched may be firmly rejected as overly semantic and again, a | |
| distinction without a difference to the substance of the evidence given by the | |
| complainant. What the complainant was clearly saying in her response was that the | |
| appellant touched her, not just on the nipples, but on the areola as well. Only in lawyer- | |
| world would a clarification in an answer from ‘nipples’ to ‘the nipple area’, give rise to a | |
| submission that there was uncertainty or unreliability about what part of the | |
| complainant’s body the appellant had his hands on. Acknowledging that there are | |
| undoubtedly occasions where the very particular detail of touching body parts is critical | |
| to whether an offence was committed and in what way, here the appellant accepted that both the nipples and the areola were sexual body parts. He asserted that he did not | |
| deliberately touch either of those body parts as he believed that to be “sexual” conduct. | |
| 68․ | As the magistrate found, there was direct evidence about the sexualised conduct from a |
| witness (the complainant), who was credible and reliable, through her definite answers, | |
| her consistent accounts, her responses in cross-examination, and the corroborative | |
| support provided by the complaint evidence, which was contemporaneous with the | |
| incident. | |
| 69․ | Accordingly, contrary to the appellant’s submissions, there is no reasonable doubt about |
| the reliability of the complainant’s evidence on the key questions of what parts of her | |
| body were touched, how they were touched, and whether she consented to those parts | |
| being touched. | |
| 70․ | Further, there is nothing in the appellant’s evidence that would cause any doubt about |
| the fact-finder’s acceptance of what occurred. That the appellant gave a statement to | |
| police and his demeanour (including a lack of evasiveness) appeared truthful in making | |
| the statement and that this was consistent with his evidence given in court, are merely a | |
| guise for submitting that the appellant denied the complainant’s evidence and his denial | |
| with an honest demeanour should have given rise to a reasonable doubt about the | |
| conduct. As Kirk JA made clear in Lee at [29] and [33], that is an insufficient basis on | |
| which an appeal court would entertain a doubt about the complainant’s account which | |
| was accepted by the fact-finder. |
71․ What such a submission ignores is the problems the magistrate found with the
appellant’s evidence, even if that evidence was given in a direct way with an apparently
honest demeanour.
| 72․ | Among these, the appellant’s explanation as to why he asked permission to massage |
| the complainant’s “whole chest” to avoid saying the word “breasts” was, as the | |
| magistrate found, implausible. Neither of the two reasons given above – that the | |
| mentioning of the word “breast” might arouse the client, and that it might trigger a fight | |
| or flight response – were logically consistent, either with each other or in terms of | |
| according with ordinary common sense and human experience. |
73․ The explanation that the appellant thought the complainant wanted her breasts
massaged because a drape of a sheet exposed part of one of her breasts is similarly
implausible. Indeed, it is difficult to accept that thought process (if that is what the
appellant thought) as anything other than opportunism, particularly when he did not ask
her any question about her breasts directly, but instead referred to her “whole chest”
even though he knew what he really meant was breasts. But in any event, the whole debate over whether the sheet was deliberately revealed by the complainant to expose
part of her breast or whether this was accidental was ultimately a red herring, or a
distraction from the real issue. It might have taken on significance if the case was only
about confusion as to whether consent had been given to massage breast tissue at all.
But whatever led to the appellant asking, “do you want me to massage the rest of your
chest”, on no view of the evidence did the appellant understand an affirmative answer to
that question to be permission to sexually touch the complainant’s breasts, including her
nipples and areolae.
74․ Further, unlike the complainant’s evidence, there were discrepancies and
inconsistencies that the magistrate found troubling (as discussed in the summary of the
magistrate’s reasons at [24] above) and they concerned the conduct in question. The
appellant did not grapple with any of the difficulties with the evidence he gave at all.
| 75․ | Otherwise, the concessions that the complainant was attractive and that he touched the |
| complainant’s breasts do not take the challenge on appeal further. Neither of those | |
| matters were in dispute. It was the sexualised touching of the complainant’s breasts that | |
| gave rise to the complaint. | |
| 76․ | The good character evidence was a discretionary matter properly understood by the |
| magistrate to be relevant both to the appellant’s credibility and to whether the appellant | |
| committed the act with which he was charged. The magistrate carefully explained how | |
| she had treated the evidence of good character and the reasons given for discounting it | |
| were open to her. | |
| 77․ | The final issue relevant to this ground is the magistrate’s finding on the element of |
| recklessness, which the appellant says was not open to the magistrate. | |
| 78․ | What was required was proof beyond reasonable doubt of the appellant’s conscious |
| awareness of the risk that the complainant was not consenting to the conduct: see Hann | |
| & Commonwealth of Australia [2004] SASC 86; 88 SASR 99 at [26] cited in R v Roux | |
| [2015] ACTSC 307 at [131]. | |
| 79․ | The argument on appeal was that there was a reasonable doubt about whether the |
| complainant had misinterpreted the appellant’s question. The confusion asserted was | |
| what the complainant was consenting to when she gave permission to massage “her | |
| whole chest”. | |
| 80․ | That argument ignores what the magistrate actually found, which was that the appellant |
| had engaged in the deliberate touching of the nipples, the areola and the cupping of the | |
| breasts on multiple occasions. That was the conduct which founded the path to the | |
| magistrate’s guilty verdict. In oral submissions, counsel for the appellant accepted that | |
| if the conduct as found stood on appeal, then the submissions about recklessness | |
| effectively fell away. | |
| 81․ | That concession was properly made. The specific finding as to the deliberate conduct |
| so described did not turn on whether the appellant had accidentally touched the | |
| complainant’s breast tissue, or whether the complainant and the appellant were at cross- | |
| purposes in what massaging her “whole chest” meant. In order to succeed on proving | |
| that the magistrate should have entertained a reasonable doubt about recklessness, the | |
| appellant had to engage with the actual path to the verdict that was taken, and | |
| demonstrate that a reasonable doubt on the evidence ought to have been entertained | |
| with regard to the findings that were actually made in respect of each element, not in | |
| relation to the alternative case relating to the breast area and in between the breasts, | |
| which was not necessary to address. | |
| 82․ | On that scenario, there was no issue about misinterpreting of the question, because the |
| question did not include seeking permission to touch the complainant’s nipples and | |
| areolae and the cupping of the breasts. Once that conduct was accepted beyond | |
| reasonable doubt, then it inexorably followed that the appellant knew that he had not | |
| sought permission for touching of that nature. As the respondent submitted, a finding of | |
| recklessness was inevitable (see also McFarlane at [6] per McCallum CJ). |
83․ For the above reasons, on an independent review of the evidence, none of the
arguments raised by the appellant cause any doubt about the guilt of the accused. For
completeness, even if the case was not pitched as high as the ground of appeal pleaded,
and the Court was not considering whether the verdict was open but instead rehearing
the matter in order to consider whether there was material factual, legal or discretionary
error, I would have reached the same conclusion, whether giving due deference to the
advantages of the trial judge in seeing the witnesses on the question of credit, or solely
based on the review of the material before the Court on appeal. Accordingly, Ground 1
is not substantiated.
Ground 2 – was there a failure to give adequate reasons?
| 84․ | The appellant’s complaint is about the reasons concerning whether the appellant was |
| reckless as to consent. | |
| 85․ | The appellant submitted that before a finding about recklessness as to consent could be |
| made, it was necessary for the magistrate to make an antecedent finding. The magistrate | |
| was required to consider whether the appellant was reckless about whether the | |
| complainant had misinterpreted his question, in that when he referred to massaging the | |
| complainant’s chest, he was reckless as to whether the complainant saying yes meant | |
| that she only consented to having the part of her chest surrounding her breasts | |
| massaged, but not her breasts. | |
| 86․ | The appellant argued that this was not only a failure on a critical issue but, assuming the |
| magistrate must have formed such a conclusion, there was a failure to give reasons for | |
| that finding. |
Applicable principles
| 87․ | Section 68C of the Supreme Court Act 1933 (ACT) deals with the requirements of a |
| judge to give reasons for a verdict in criminal proceedings. There is no equivalent | |
| statutory obligation in the MC Act. Accordingly, I have addressed the position at common | |
| law, but noting the nature of the jurisdiction, being the Magistrates Court. | |
| 88․ | In AK v State of Western Australia [2008] HCA 8; 232 CLR 438, Heydon J stated at [85] |
| (references omitted): |
Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.
| 89․ | The above passage was cited with approval in DL v The Queen [2018] HCA 26; 266 CLR |
| 1 (DL) at [33]. The Court had (at [32]) stated that what constitutes ‘adequate’ reasons is | |
| informed by the nature of the jurisdiction which the court is exercising and the particular | |
| matter that is the subject of the decision. | |
| 90․ | The adequacy of reasons is not to be judged against a standard of perfection, but the |
| question is whether they “attained the minimum acceptable standard”: Alexandria | |
| Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165; (Alexandria Landfill) at [316] | |
| reported in 103 NSWLR 479, although the pinpoint paragraph does not appear in the | |
| published judgment. An application for special leave to appeal that decision was refused: | |
| see [2020] HCASL 271. | |
| 91․ | The relative test of ‘adequacy’ depends on the nature of the issues in the case: DL at |
| [33]. Consideration was given to the minimum standard for “adequate” reasons in the | |
| Magistrates Court by Refshauge J in O’Connell v McMennemin [2014] ACTSC 112 | |
| (O’Connell) at [70]-[80]. His Honour found there is an obligation on a magistrate, as | |
| part of the exercise of her judicial office, to adequately state the findings of fact and | |
| reasons for decision, for the purpose of enabling a proper understanding of the basis | |
| upon which the findings of guilt were reached: O’Connell at [73], citing Pettit v Dunkley | |
| [1971] 1 NSWLR 376 at 382. In a summary jurisdiction, the reasons must articulate the | |
| essential ground or grounds on which the decision rests, although a detailed explanation | |
| is not required: O’Connell at [77]. |
The magistrate’s reasons
| 92․ | The magistrate’s reasons that are the subject of complaint were as follows (emphasis |
| added): |
The defendant submitted that the fact that the defendant asked the question about massaging her chest and that the complainant said yes means that I would not be able to find that there was no consent to the touching. That question must be for me whether the complainant consented to the defendant touching her in the manner that I have now found he did.
The complainant says that she never gave consent to this type of touching. The defendant
says that his question seeking permission was only for the outside areas and in between the breasts. Having rejected that this was the action performed, the question cannot be seen as seeking consent for the type of touching that occurred.
In considering whether the defendant was reckless as to whether the complainant was consenting to this type of touching, regard is had to the lack of training in the area and his
own admission that touching the nipples and areola and cupping the breasts would be considered sexual. Having accepted that that is, in fact, the action that did occur, I am satisfied that the defendant knew, or at least was reckless, that the complainant had not consented to this type of touching.
| 93․ | The appellant argued that the magistrate made no express finding as to what the |
| complainant’s affirmative answer meant for the appellant’s state of mind when he | |
| subsequently touched her breasts. | |
| 94․ | The appellant argued that before a finding that he was reckless as to consent could |
| properly be made, it was logically necessary for the magistrate to make an antecedent | |
| finding that he was reckless as to whether the complainant had misinterpreted his | |
| question regarding her chest. | |
| 95․ | What the magistrate was required to do was give reasons that met a minimum standard |
| to enable a proper understanding of the basis upon which the finding of guilt was | |
| reached. | |
| 96․ | The magistrate’s reasons on the element of recklessness disclose: |
(a) The appellant’s conduct is to be evaluated in the context that touching any part of a client’s breasts is not part of the defendant’s usual massage routine.
(b) The appellant’s subjective state of mind was that he asked permission only to touch the outside areas and in between the breasts.
(c) The appellant did not ask for permission to touch the complainant’s nipples and areolae or to cup the breasts.
(d) The appellant admitted that such conduct would be considered sexual. (e) The magistrate found that is what occurred. (f) That finding led to the conclusion that the appellant was at least reckless that the complainant had not consented.
| 97․ | From those reasons, the basis of the finding of guilt is readily understood. The essential |
| ground on which the decision rested was that the magistrate rejected what the appellant | |
| said he did by way of “treating” the complainant’s chest area, and instead, positively | |
| found beyond reasonable doubt that the appellant touched the complainant in a sexual | |
| manner – that is, he touched the complainant’s nipples and areolae and cupped her | |
| breasts. | |
| 98․ | The magistrate then referred to the complainant’s evidence that she did not consent to |
| that type of touching. The magistrate relied on the appellant’s own evidence that he | |
| knew that he had not asked permission to touch the complainant in a sexual manner as | |
| establishing the element of recklessness. | |
| 99․ | They were the critical factual issues. A finding was made about each and the basis of |
| each finding was simply explained. The reasons thus surpass the minimum standard | |
| required. The argument that an antecedent finding about whether the appellant was | |
| mistaken in misinterpreting his question regarding her chest was required as part of any | |
| logical chain of reasoning was misconceived for the same reason as that discussed in | |
| relation to Ground 1. It overlooks the appellant’s own evidence on that point, not that he | |
| was mistaken or confused in what he thought the complainant was consenting to, but | |
| that he knew he was not asking to touch the complainant’s nipples, areolae and to cup | |
| her breasts. | |
| 100․ | The magistrate was not required to give reasons for any antecedent finding on whether |
| the appellant was reckless about the possibility the complainant had misinterpreted his | |
| question because that matter was not relevant to the factual findings her Honour had | |
| made. The magistrate was only obliged to give reasons for the findings that she made, | |
| not to fully canvass alternative pathways she did not take. | |
| 101․ | Accordingly, Ground 2 is not made out. |
Orders
102․ For the above reasons, neither of the appellant’s complaints have been established on
appeal. The order is as follows:
(1) The appeal is dismissed. I certify that the preceding one-hundred and two [102] numbered paragraphs are a true copy of the Judgment of her Honour Justice McWilliam
Associate:
Date:
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