Wong v WA Police
[2025] WASC 23
•31 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: WONG -v- WA POLICE [2025] WASC 23
CORAM: HOWARD J
HEARD: 24 OCTOBER 2024
DELIVERED : 31 JANUARY 2025
FILE NO/S: SJA 1103 of 2023
BETWEEN: CHUN HUNG WONG
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA AT GERALDTON
Coram: MAGISTRATE SHACKLETON
File Number : AM 188/2021
Catchwords:
Criminal law - Single judge appeal - Appeal against convictions imposed for offences against s 373 of the Criminal Code 1913 (WA) - Indecent assault - Cross-admissibility of evidence - Propensity evidence - Whether convictions unreasonable or unsupported - Leave to appeal refused - Appeal dismissed
Legislation:
Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr T F Percy KC and Mr P G Giudice |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | George Giudice Law Chambers |
| Respondent | : | Director of Public Prosecutions for Western Australia |
Case(s) referred to in decision(s):
ADL v State of Western Australia [2022] WASCA 12
Coomer v The State of Western Australia [2024] WASCA 133
Crofts v R (1996) 186 CLR 427
Director of Public Prosecutions (DPP) v Roder [2024] HCA 15; (2024) 98 ALJR 644
DPJB v The State of Western Australia [2010] WASCA 12
FGC v State of Western Australia (2008) 183 A Crim R 313; [2008] WASCA 47
Hayman v Cartwright [2018] WASCA 116; (2018) 53 WAR 137
KNL v The State of Western Australia [2023] WASCA 72
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
NTH v The State of Western Australia [2020] WASCA 22
Pell v R [2020] HCA 12; (2020) 268 CLR 123
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25 (2011) 57 MVR 269
Walsh v The State of Western Australia [2024] WASCA 78
Wark v The State of Western Australia [2023] WASCA 66
Webb v Tang [2023] WASCA 119
Zeng v R [2023] WASCA 25
HOWARD J:
The appellant's convictions and sentence
By prosecution notices dated 10 August, 14 September and 23 December 2021, the appellant was charged with 10 counts of unlawful and indecent assault against nine adult complainants. The 10 charges were alleged to have occurred between 1 January 2013 and 19 February 2021 at Geraldton.
Each of the charges was against s 323 of the Criminal Code 1913 (WA).
Section 323 of the Criminal Code reads as follows:
323. Indecent assault
A person who unlawfully and indecently assaults another person is guilty of a crime and liable to imprisonment for 5 years.
Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.
The appellant worked as a massage therapist in Geraldton and ran his own massage therapy business. All the complainants were clients of the appellant.
The appellant pleaded not guilty to each of the ten charges. The appellant was remanded on bail until the conclusion of trial. The trial went across 12 sitting days.
On 14 September 2023, following the conclusion of trial, the learned Magistrate entered judgments of conviction against the accused in relation to the four charges against the complainants: ZC (Charge 1), ET (Charge 2), AW (Charge 3) and CW (Charge 4) (together the convictions).
The appellant was acquitted of the remaining six charges against the complainants KMG (Charge 5), CM (Charges 6 and 7), TM (Charge 8), MA (Charge 9), and JPG (Charge 10).
On 22 December 2023, the learned Magistrate imposed a term of ten months' immediate imprisonment for each Charge 1 and Charge 2 and a term of six months' immediate imprisonment for each Charge 3 and Charge 4.[1] For reasons of totality, the learned Magistrate reduced each of the six month terms to terms of three months. The Magistrate ordered that the terms be served cumulatively, sentencing the appellant to a term of two years and two months' immediate imprisonment with parole eligibility.[2]
[1] ts, Western Australia Police v Wong, Magistrates Court of Western Australia at Joondalup, 22 December 2023, 12.
[2] ts, 22 December 2023, 12 - 13.
On the same day of sentencing, 22 December 2023, the appellant filed:
1.an appeal notice seeking leave to appeal against the four convictions; and
2.an application for bail.
The appellant later filed an amended appeal notice on 28 December 2023 (Appeal Notice).
There is no application for leave to appeal against the sentences imposed.
On 5 January 2024, the appellant was granted bail until the appeal hearing which came before me on 24 October 2024.
Grounds of appeal
The Appeal Notice contained the following 10 grounds of appeal.
CONVICTION
1.The learned Magistrate erred in law by making adverse findings in relation to the Applicant's credit on the basis of the totality of the evidence led at the hearing rather than in relation to the evidence applicable and admissible on the individual counts pertaining to each complainant.
2.The learned Magistrate erred in law by using the evidence of comments in the notes made by the Applicant as generally admissible as tending to prove that the Applicant had a sexual interest in other clients rather than considering whether those comments were relevant and admissible in respect of each individual complainant.
3.The learned Magistrate erred in law by using the evidence of the complainant [MA] (of which charge the Applicant was acquitted) as being supportive or probative of the prosecution case in relation to the other complainants.
4.The learned Magistrate erred in law by using the evidence of the 'perfume' comments made to the complainant [AW] as admissible and probative of the prosecution case in respect of the other complainants.
5.The learned Magistrate erred in law by failing to properly consider or take into account the significance of delay in complaint by the complainant [AW] in accordance with the decision of the High Court in Crofts v R (1996) 186 CLR 427.
6.The learned Magistrate erred in law by finding that the Applicant had committed an indecent assault by performing an unseen and uncommunicated act of masturbation whilst conducting a massage to which the complainant had consented.
7.In the event that any of the errors of law asserted in grounds 1 to 6 are not seen by the Court as not having led to a substantial miscarriage of justice the totality of those errors collectively occasioned a miscarriage of justice.
8.The properly admissible evidence led in respect of those counts on which the Applicant was convicted was insufficient to justify a finding of guilt beyond reasonable doubt, those verdicts being unreasonable and the convictions unsafe.
REFUSAL OF APPLICATION FOR COSTS
9.The Learned Magistrate applied the wrong test in law in refusing the application for costs, the Applicant being a partially successful accused having been acquitted of six charges of indecent dealing (and found guilty of four charges the subject of this appeal) deciding that because the unopposed application to allow cross admissibility of all ten charges by way of conduct evidence was allowed there would have been no extra work involved in defending the six charges for which the applicant was found not guilty.
10.The learned magistrate was wrong in fact in deciding there was no extra work involved in defending the six charges of which the Applicant was acquitted. (original emphasis)
Relevant provisions for this Appeal
The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a)(i) and (b) of the Criminal Appeals Act 2004 (WA).
Section 7(1) provides as follows:
(1) A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
The appellant's convictions are 'decisions' within s 6(c) of the Criminal Appeals Act.
The Magistrate's decision not to award the appellant his costs of the acquittals was a decision within s 6(h) of the Criminal Appeals Act.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each of his appeal grounds.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[3]
[3] Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 (Samuels) [56].
Unless leave is given on at least one ground, the appeal is to be taken to have been dismissed.[4]
[4] Criminal Appeals Act (WA) s 9(3).
The trial
Prior to the commencement of trial, the prosecution brought an application for the cross-admissibility of the evidence of all of the complainants as propensity evidence under s 31A of the Evidence Act (s 31A application).
The matter was called on 7 February 2022 before a Magistrate different from the trial Magistrate for the prosecution's s 31A application (and its application for a number of witnesses' evidence to be given by video‑link).[5]
[5] ts, Western Australia Police v Wong, Magistrates Court of Western Australia at Geraldton, 7 February 2022, 2.
The applications were adjourned to 21 February 2022 and defence counsel indicated they would be in a position, by then, as to whether the s 31A application was opposed.[6]
[6] ts, 7 February 2022, 3.
Witten submissions prepared by the prosecution appear to have been lodged on 7 February 2022.
Relevantly, those submissions stated:
[3] The Prosecution seeks leave to adduce propensity evidence of the Accused's current charges to be heard at one trial with evidence from all charges being heard as propensity evidence for other charges due to the similar nature of the offending.
…
[24]In relation to all charges, the central issue will be the intentional act of the accused.
[25]Additionally, the proposed propensity evidence tends to rebut any claim of the accused actions being an unwilled act due to the repetition and nature of the sexual allegations.
[26]In these circumstances and with the proposed evidence taken at its highest in favour of the Prosecution, the conduct of the accused will have significant probative value in determining that the sexualised touching, masturbating and touch of the victim's arms with the accused penis was deliberate and sexualised.
…
[28]In any event, it is submitted that the prejudicial impact is limited in matters proceeding in the Magistrates Court, where the trier of fact will be a trained judicial officer with the ability to recognise and utilise propensity evidence in a permissible dispassionate and logical manner.
The hearing on 21 February 2022 was conducted by telephone, again by a different Magistrate from the trial Magistrate.
Defence counsel said at that hearing:
… Having - - -
…
- - - considered the application, it's - we're not in a position to oppose to the cross-admissibility so in that respect, no - there's no submissions to be made.[7]
[7] ts, Western Australia Police v Wong, Magistrates Court of Western Australia at Geraldton, 21 February 2022, 3.
The Magistrate then granted the prosecution's application.[8]
[8] ts, 21 February 2022, 5.
The trial commenced on 14 March 2022 before Magistrate Shackleton at Geraldton.
The evidence in the trial will be considered in more detail below.
The prosecution's case broadly was that the appellant was the owner of, and massage therapist at, Brilliant Massage located on Marine Terrace in Geraldton. Each of the complainants, at a certain point in time, was a client of Brilliant Massage and received a massage performed by the appellant.[9] That was not in dispute at trial.[10] In each of the cases, according to the prosecution, the massage given by, or the touching of the complainant by, the appellant was indecent by reason of certain actions performed by him during the massage. [11]
[9] ts, Western Australia Police v Wong, Magistrates Court of Western Australia at Joondalup, 27 July 2023, 1174.
[10] ts, Western Australia Police v Wong, Magistrates Court of Western Australia at Geraldton, 14 March 2022, 23.
[11] ts, 14 March 2022, 17.
After the evidence of the complainants, the trial was adjourned part heard on 18 March 2022, and resumed on 12 September 2022 at Joondalup.
On 12 September 2022, the Magistrate stated:
1.he had been told at the start of the trial that the s 31A application had been granted;[12]
2.he had read the transcript of 21 February 2022;[13] and
3.that defence had not opposed the cross‑admissibility of evidence in response to the prosecution's s 31A application.[14]
[12] ts, Western Australia Police v Wong, Magistrates Court of Western Australia at Geraldton, 12 September 2022, 479.
[13] ts, 12 September 2022, 479.
[14] ts, 12 September 2022, 479.
However, it appeared that, at that time, the Magistrate had not seen the underlying submissions for the prosecution's application. The prosecution told the Magistrate on 12 September 2022:
Our application to lead propensity evidence … for the cross‑admissibility ‑ ‑ ‑
…
- - - of all the evidence. All the complainants in this file to be cross‑admissible against each other, basically, so the evidence of each others as well as their own. That application was brought before the hearing. There was a written submission about - to support our application. That application wasn't opposed by my friends from defence, and it was granted.[15]
[15] ts, 12 September 2022, 481.
From the transcript it appears that counsel then made arrangements to send the prosecution's earlier written submissions to the Magistrate. At that point, each of the complainants had already given evidence.[16]
[16] ts, 12 September 2022, 482 - 483.
On the next day, the prosecution closed its case.[17]
[17] ts, Western Australia Police v Wong, Magistrates Court of Western Australia at Geraldton, 13 September 2022, 584.
The Magistrate returned to the propensity evidence after that closing and said:
… the 31A evidence that was not opposed and therefore granted, as I understand it, there was suggestion in those submissions that it was about uncharged acts, but I think that's gone and so what the prosecution is saying or the work that 31A is intended to do in this case is the evidence of each complainant can be used in terms of, if you like, negating things like unwilled act, accident and so on. That's really the work that 31A is intended to do. Is that right?[18]
[18] ts, 13 September 2022, 584.
After discussion with the prosecution, the prosecution confirmed that the propensity evidence did go to whether there was a willed act or an accident;[19] and that the appellant had a propensity to obtain sexual gratification from the massages.[20]
[19] ts, 13 September 2022, 584.
[20] ts, 13 September 2022, 585.
Defence confirmed that the use of that propensity evidence in that way was not opposed.[21]
[21] ts, 13 September 2022, 586.
In the context of a no case submission in relation to one of the complainants, JPG (Charge 10), the prosecution said:
… The prosecution will be relying on that propensity reasoning. It's the prosecution case that [the appellant] was obtaining a sexual gratification from these ladies, who were practically naked on the massage table.
It's our case that he was masturbating at least some of the time with some of these complainants, that he was putting his – pressing his penis on them, that he touched them in areas where he didn't need to touch them, that he touched them in areas where he didn't need to touch them, and it was sexually motivated. To rely on that propensity of reasoning that that's the reason – that's what he was doing with these women…[22]
[22] ts, 13 September 2022, 588 - 589.
The trial was further adjourned part heard on 15 September 2022 and recommenced at Joondalup on 24 July 2023.
The trial concluded on 27 July 2023.
The appellant was assisted by a Cantonese interpreter throughout the trial.
The appellant gave evidence at the trial[23] and called two character witnesses to establish his previous good character.
[23] ts, 13 September 2022, 591.
The appellant accepted that at all relevant times he was the owner of, and massage therapist at, Brilliant Massage located on Marine Terrace in Geraldton.
He did not dispute that each complainant was, at a certain point in time, a client at Brilliant Massage, and that he had provided a massage to each of them.
The Magistrate's reasons
Before turning to the Appeal Grounds, it is useful to consider the Magistrate's reasons.
After some self-directions which are not challenged in this Appeal, the Magistrate (correctly) directed himself that if the appellant was guilty or not guilty of one count that did not mean the verdicts on the other counts would necessarily be the same.[24]
[24] ts, Western Australia Police v Wong, Magistrates Court of Western Australia at Joondalup, 14 September 2023, 1318.
The Magistrate then turned to the propensity evidence and directed himself as follows:
1.propensity evidence is a form of circumstantial evidence;
2.the fact that a person has a proven propensity or tendency to behave in a particular way does not in itself establish that on another occasion they have done the act alleged which constitute the charged offence;
3.however, the existence of such a propensity may make it more likely that he did so; and
4.propensity evidence added to other circumstantial evidence may assist in determining whether the charge has been proved beyond a reasonable doubt.[25]
[25] ts, 14 September 2023, 1318.
The Magistrate then said the first matter to consider was whether the evidence established the existence of a propensity, and that required a consideration of what the evidence said to be relevant to propensity actually proved.[26]
[26] ts, 14 September 2023, 1318.
The Magistrate then identified that the prosecution sought the cross‑admissibility of each of the complainants' evidence in order to demonstrate that the alleged acts were intentional and sexualised in nature, and also to rebut any claim that the alleged acts were unwilled, accidental or for a legitimate purpose.[27]
[27] ts, 14 September 2023, 1318 - 1319.
The Magistrate said that for evidence of one offence to be used as propensity evidence on another offence it would be necessary for the evidence on the first offence to establish that the appellant was the perpetrator of that offence. Although I do not understand that now represents the law,[28] the Magistrate (more favourably towards the appellant) stated:
… before the evidence on one offence can be considered as propensity evidence in respect of another offence, I would have to be satisfied that the [appellant] committed the first offence beyond a reasonable doubt.[29]
[28] see, for example, the observations of the Court of Appeal in Walsh v The State of Western Australia [2024] WASCA 78 [115] (Mazza, Hall, Vandongen JJA), following Director of Public Prosecutions (DPP) v Roder [2024] HCA 15; (2024) 98 ALJR 644 (Roder).
[29] ts, 14 September 2023, 1319.
The Magistrate then directed himself that even if the propensity evidence was relevant and probative, it could not alone prove the guilt of the appellant, and that while such evidence may assist, there must be other evidence to show that the appellant committed the acts alleged.[30]
[30] ts, 14 September 2023, 1319.
The Magistrate then said: 'Before giving more detailed reasons, I would like to make some general observations about this case as I see it'.[31]
[31] ts, 14 September 2023, 1324.
Those general observations included matters such as the nature of a massage, and other evidence as to what might be said to be standard or good massage technique or conduct.
The Magistrate then directed himself as to the delay in the making some of the complaints.[32] I deal with these particular directions and reasoning more fully in the consideration of the Appeal Grounds below.
[32] ts, 14 September 2023, 1329.
The Magistrate directed himself to assess the accused's evidence as he would assess the evidence of any other witness, and then gave himself a Liberato direction which is not challenged.[33]
[33] ts, 14 September 2023, 1331.
The direction in the first part of the paragraph immediately above is to be understood with his Honour's later self‑direction to the effect that it was not an all or nothing thing as to whether or not to accept the evidence of any witness and it was possible for a witness to be credible or reliable in some respects but not others.[34]
[34] ts, 14 September 2023, 1323.
The Magistrate then reviewed the appellant's evidence fully.[35]
[35] ts, 14 September 2023, 1331 and following.
I have summarised the appellant's evidence below in Ground 8. Here, I summarise the Magistrate's reasons as they touched on the appellant's evidence.
The Magistrate self‑directed as to the difficulties which may present for his (the Magistrate's) assessment of the appellant's evidence because he had, from time to time, given evidence with the assistance of an interpreter[36] and warned himself as to the difficulties in making any demeanour assessments.[37]
[36] ts, 14 September 2023, 1332.
[37] ts, 14 September 2023, 1332 - 1333.
The Magistrate then dealt with two character witnesses called by the appellant.[38]
[38] ts, 14 September 2023, 1333.
The Magistrate directed himself that the good character evidence was relevant in two ways, namely:
1.to whether or not the appellant would commit the offences, with the good character evidence showing it was less likely he would commit such an offence; and
2.to his credibility, that is showing he was a person whose evidence can be accepted.[39]
[39] ts, 14 September 2023, 1333.
The Magistrate summarised the appellant's learning as to, and training for, remedial massage.[40]
[40] ts, 14 September 2023, 1334.
As part of reviewing his training, the Magistrate dealt with the two training institutes that the appellant had attended.[41]
[41] ts, 14 September 2023, 1334.
The Magistrate reviewed the appellant's evidence of moving to Geraldton and his purchase of Brilliant Massage.[42]
[42] ts, 14 September 2023, 1334. At the time of purchase, the business was named 'Ben's Massage': ts, 15 September 2022, 598.
The Magistrate reviewed the appellant's evidence as to the layout of the premises from which his massage business was conducted as well as his general evidence as to what the appellant wore to work and the massage tables he used.[43]
[43] ts, 14 September 2023, 1335, 1337.
The Magistrate reviewed the evidence that the appellant gave generally as to his interactions with clients and how massages would be conducted, including his practices as to using towels and lowering clients' underwear.[44]
[44] ts, 14 September 2023, 1335 - 1336.
The Magistrate reviewed the appellant's evidence about pregnancy massages in general.[45]
[45] ts, 14 September 2023, 1336.
The Magistrate reviewed the appellant's general evidence as to his breathing and sweating during the performance of a massage[46] and the oils et cetera that he used.[47]
[46] ts, 14 September 2023, 1336.
[47] ts, 14 September 2023, 1336 - 1337.
In the course of that review, the Magistrate recorded that the appellant:
1.accepted he might have said things about clients having good skin;[48]
2.agreed that very rarely he would comment on the perfume that a client wore because he suffers from an allergy and he wanted to find out, because it would cause his nose to run from time to time, so he would say, 'You have a good smell' or that their perfume smelt nice;[49] and
3.denied masturbating, touching his penis, rubbing his penis on a client or ejaculating during a massage.[50]
[48] ts, 14 September 2023, 1337, 1339.
[49] ts, 14 September 2023, 1337.
[50] ts, 14 September 2023, 1337.
The Magistrate recorded the appellant's evidence that all massages were remedial, not sexual, and that the appellant denied any sexual connotation and denied ever getting an erection during a massage.[51]
[51] ts, 14 September 2023, 1337.
The above is not intended to be a full recitation of the Magistrate's review of the appellant's evidence.
The Magistrate then said that there were aspects of the appellant's evidence that caused him concern.[52]
[52] ts, 14 September 2023, 1338.
The Magistrate said, and I have set this passage out in full:
[The appellant's] evidence was that he had no interest in the bodies of his clients and that he took no notice. What I mean by that is that there was no attraction, there was no sexual interest. His evidence was that at all times, he acted in the capacity of a professional therapist. However, he accepted that he would make what he described as small talk with some clients, asking whether they worked out and so on. He also accepted that he may say that they had good skin.
He did not deny that he told one of the complainants that she had very soft skin. Further, the notes that he made that were put to him in cross‑examination, he accepted, included notes such as and I quote, 'Big bum.' One of the notes he made ended with the words, and I quote:
Very fit muscle lady. Hot.
The word 'hot' was in capitals. When cross-examined about that, he said that it meant hot muscle. In my view, the kind of talk that he made and those notes do not accord at all, in my view, with a professional therapist who has been trained about the specific need for professional behaviour and etiquette when dealing with clients. The small talk and notes cannot be explained by ignorance, cultural differences or language barriers.
The only inference that can be drawn is that the [appellant] had a more than professional interest in at least some of his clients. I reject his evidence that the 'hot' note related to a hot muscle. In my view, the only inference that can be drawn from that note is that he thought she was attractive or, in the colloquial, hot. I also reject the accused's evidence with respect to small talk in relation to the perfume smelling nice.
His evidence, that he said that they smelt nice because he was allergic to perfume or perfumes and wanted to find out why is, in my view, absurd given the words that he used. If the purpose was to discover or find out what perfume or perfumes or ingredients he was allergic to, why not make a conversation about his allergy or which perfume it was? Or importantly, the ingredients of their perfume.
Keeping in mind he had studied at Evolve and that the only finding in my view is that he at least knew that there was a need for a professional approach. Saying, 'You smell nice' in relation to perfume is a very odd thing without an explanation. On his evidence, the desire to discover the problem that he said he had went no further than to say that the client smells nice. I do not accept and I reject his evidence in that regard.[53]
[53] ts, 14 September 2023, 1339 - 1340.
The Magistrate then dealt with what he said was the 'most inexplicable and concerning aspect of his evidence' which was the appellant's evidence about the technique he used when getting a client to roll over.[54]
[54] ts, 14 September 2023, 1340.
After reciting that evidence, the Magistrate said:
His demonstration, in my view, looked more like someone peering over a fence than someone trying to block their vision. His decision to position the towel below his nose, in my view, can only be explained by a desire to see the client's breasts. There is no possible other innocent explanation for it, in my view. I reject the [appellant's] evidence that he did what he did to obscure his vision. The only reasonable inference is that he did what he did so that he got a chance to see their breasts, and, therefore, I find that he had a sexual interest at least in those clients.
However, even if I'm wrong about that aspect being capable of leading to the inescapable inference in and of itself, the combined weight of that aspect of his evidence as well as the other aspects of his evidence that I've spoken about, leads me to the inescapable finding that he had a sexual interest in at least some of his clients. On that basis, I reject the [appellant's] evidence that he was working as a professional massage therapist and he did not have a sexual interest in any of his clients.
As I said, the only inference that I can draw on the evidence is that he did have a sexual interest at least in some of his clients. Because of the finding that I have made, I reject the [appellant's] evidence other than where I say that I have not or where I have already said that I have not rejected it. Having rejected the [appellant's] evidence, it does not follow automatically that I convict him of the offence as charged. I simply put his evidence to one side.[55]
[55] ts, 14 September 2023, 1341 - 1342.
As I read the last sentence of the quotation in the paragraph immediately above, the Magistrate was using a shorthand to indicate that he was then turning to decide whether any of the Charges were proved based on evidence which he did accept (which is the trite application of the Liberato direction). It is also apparent that part of the evidence the Magistrate accepted from the appellant led him to the finding that the appellant had a sexual interest in at least some of his clients.
The Magistrate then turned to the prosecution case.
His Honour dealt with the Charges in order. As will be seen, it has been necessary for me, under Appeal Ground 8, to review and make my own assessment of the evidence. The following is not intended to be a full summary of the evidence given by the particular complainant. Rather, the present summary is intended to indicate the use (or non-use) made of any propensity or tendency evidence in the convictions.
As to Charge 1 (ZC), the Magistrate found the charge proven beyond a reasonable doubt and he does not appear to have taken any propensity evidence into account in reaching that finding. Nor did the Magistrate take into account any other complainant's evidence in reasoning to guilt on Charge 1.
The Magistrate found that ZC was a careful and credible witness[56] who was not argumentative, nor prone to exaggeration and who gave her evidence as honestly as she could.[57]
[56] ts, 14 September 2023, 1346.
[57] ts, 14 September 2023, 1346.
The Magistrate found:
1.the appellant told ZC that she had very soft, smooth skin during the early part of the massage;[58]
2.that the substance (semen) was located on an area of the valance where the appellant had been standing when she heard the sounds she believed were the appellant masturbating,[59]
3.the appellant was masturbating while he massaged ZC;[60]
4.the appellant continued to massage ZC in the way she said ‑ i.e. one‑handed;[61]
5.that the substance ZC saw and smelt on the valance after the massage was semen;[62]
6.ZC did not consent to being massaged in that way, so it was done without her consent and it was indecent;[63] and
7.the charge with respect to ZC was proven beyond a reasonable doubt.[64]
[58] ts, 14 September 2023, 1348.
[59] ts, 14 September 2023, 1348 - 1349.
[60] ts, 14 September 2023, 1348 - 1349.
[61] ts, 14 September 2023, 1349.
[62] ts, 14 September 2023, 1348.
[63] ts, 14 September 2023, 1349.
[64] ts, 14 September 2023, 1349.
In relation to Charge 2 (ET), the Magistrate reviewed the complainant's evidence and stated that he was satisfied:
1.beyond a reasonable doubt that the appellant massaged so close to ET's vagina as to be indecent;[65]
2.the appellant intended that and it was not an accident and it was a willed act;[66] and
[65] ts, 14 September 2023, 1354.
[66] ts, 14 September 2023, 1354.
the appellant knew that ET had not consented to that.[67]
[67] ts, 14 September 2023, 1354.
The Magistrate accepted ET's evidence generally which proved the Charge including as to the change in the appellant's massaging of her and as to the appellant's breathing changing and as to the sound she described and demonstrated in court.[68] On the basis of those findings, as well as the findings that he had made in relation to the appellant's sexual interest in some of his clients, the only inference which he held was available, and which he drew, was that the appellant was masturbating while his hand was limply or slowly massaging her.[69]
[68] ts, 14 September 2023, 1354.
[69] ts, 14 September 2023, 1354 - 1355.
That is, the Magistrate found Charge 2 proven in respect of the massage being so close to ET's vagina and that the appellant was masturbating while massaging ET.
Having found Charge 2 proven beyond a reasonable doubt the Magistrate then said:
… In my view, the findings I have made in relation to [ZC] and [ET] proves that the [appellant] had a tendency to massage, at least those people, for his sexual gratification. And it therefore makes it more likely that he would commit other offences of this kind.[70]
[70] ts, 14 September 2023, 1355.
The Magistrate then considered Charge 3 and the evidence of AW. The Magistrate found that the appellant told AW that he liked the way she smelt.[71] The Magistrate then said:
… Given that I've rejected his evidence about why that was and the other findings that I've made, I find that, in all the circumstances, it was not small talk.
It was an inappropriate conversation. That, in my view, is the only inference available on all of the evidence. …[72]
[71] ts, 14 September 2023, 1356.
[72] ts, 14 September 2023, 1356.
The Magistrate then accepted the complainant's evidence about:
1.feeling something touching her arm;
2.it became firm and erect;
3.it was rubbed up against her bicep and arm as the appellant moved around the table;
4.the touching continued when the appellant changed sides; and
5.the level of the appellant's penis would be in line with her arm.[73]
[73] ts, 14 September 2023, 1356.
The Magistrate then said:
Based upon those findings, as well as the findings that I've made in relation to his sexual attraction, at least to some of his clients, as well as the findings that I've made in relation to [ZC] and [ET], the only inference I can draw is that it was the [appellant's] penis touching her arm…[74]
[74] ts, 14 September 2023, 1356.
After referring to other evidence and his findings, the Magistrate stated:
…I'm satisfied that it was intentional because of the other findings that I've made against the [appellant]. On that basis, I am satisfied it wasn't an accident, it was not – or was unwilled.[75]
[75] ts, 14 September 2023, 1357.
The Magistrate then considered Charge 4 (CW). Again, the Magistrate reviewed the complainant's evidence and found her to be an honest and truthful witness.[76]
[76] ts, 14 September 2023, 1361.
The Magistrate had a reasonable doubt that the appellant was masturbating (while massaging CW) because:
1.the complainant did not tell the person to whom she first complained that she thought the appellant had been masturbating and did not initially tell the police that;[77]
2.she made the direct allegation of masturbation immediately after speaking to ET and at that stage had also seen the Facebook posts;[78]
3.he could not reject the reasonable possibility as to her belief of what occurred having been influenced by those things;[79] and
4.as CW conceded, the appellant might have been massaging with one hand on top of the other.[80]
[77] ts, 14 September 2023, 1361.
[78] ts, 14 September 2023, 1363.
[79] ts, 14 September 2023, 1363.
[80] ts, 14 September 2023, 1362.
However, the Magistrate found that the appellant intended to touch CW's anus on three occasions and that she had not consented to the appellant placing his hands or hand between her buttocks and touching her anus, nor did she consent to being massaged so close to her vagina that the appellant grazed it.[81]
[81] ts, 14 September 2023, 1363.
As to the finding that the appellant intended to touch CW's anus, the Magistrate made the finding because:
1.in order for the appellant's hand to reach her anus it had to enter between the buttocks to get there;
2.the appellant's hand touched her anus on three occasions; and
3.the appellant was straddling her at the time.[82]
[82] ts, 14 September 2023, 1363.
The Magistrate found that the appellant had got on top of CW and massaged her in the way alleged to simulate a sexual position and to get sexual gratification. He was satisfied that the touching, being the touching of her anus, was not an accident and was a willed act.[83]
[83] ts, 14 September 2023, 1363.
On that basis, he found Charge 4 proven beyond a reasonable doubt.
The Magistrate was not, however, satisfied that the appellant was on top of CW when his hand grazed her vagina and so was not satisfied that it was intended or was a willed act and so did not enter a conviction based on that allegation.[84]
[84] ts, 14 September 2023, 1363.
The Magistrate made no reference to any propensity evidence, or evidence or any findings from any other complainant in dealing with Charge 4. And he did not use any finding of any sexual interest on the part of the appellant in some of his clients.
Consideration of the appeal grounds
Appeal Ground 1
The central point of this Ground appears from the appellant's submissions:
It is submitted that if (at a multiple complainant trial) a Magistrate seeks to make an adverse finding against an accused person it needs to be made specifically and separately in respect of each of the complainant under consideration. A finding as to generalised sexual interest in 'some' of his clients was an insufficient and incorrect basis to reject his evidence generally across the board. [85] (citation omitted)
[85] Appellant's submissions dated 7 February 2024 (Appellant's submissions) [22].
Although it is not entirely clear, the balance of the appellant's submissions may also be raising the question of the cross‑admissibility of some of the evidence.
In the appeal, counsel for the appellant submitted that the Magistrate's finding that the appellant had a sexual interest in at least some of his clients was not specific enough in relation to any one count to make it propensity evidence and that by making the overarching finding in relation to his credibility while all the charges were live was an error of law.[86]
[86] ts, Wong v WA Police, Supreme Court of Western Australia, 24 October 2024, 32, 36.
It was submitted that the issues in respect of which the Magistrate found against the appellant were not germane to every complaint in front of him, were not overarchingly cross-admissible, and needed to be compartmentalised in any analysis of them.[87]
[87] ts, 24 October 2024, 38, 39.
It was further submitted that the evidence was not capable of being categorised as propensity evidence because it lacked a clearly defined peculiarity and the requisite probative value in the absence of any evidence that he would be likely to, or have the tendency to, act on it.[88]
[88] ts, 24 October 2024 34 - 35, 40.
Dealing firstly with the central part of this Ground, it appears from the outset to mischaracterise the Magistrate's findings as to the appellant's credibility. The Magistrate did not reason to guilt on any of the convictions by making an 'adverse finding' against the appellant's credibility. Rather, as will be seen, the Magistrate did not accept, generally speaking, the appellant's evidence and consistently with his (correct) Liberato direction put that (rejected) evidence to one side.
Further, the Magistrate's findings must be put, immediately, into the context that the appellant's evidence was that he had not had any sexual interest in any of his clients, and rather had acted at all times with all clients in a professional and sexually disinterested way.
As noted above, the Magistrate correctly self-directed that he could accept all, some or none of any witness' (including the appellant's) evidence.
Here, by reference, in summary of:
1.the things that the appellant accepted he said to some of his clients;
2.the explanations which the appellant had given as to making comments about how some of the clients smelt;
3.notes which the appellant accepted he had made; and
4.the appellant's evidence as to how he positioned the towel during massages;
the Magistrate said that he rejected the appellant's evidence except where he expressly accepted it or where he expressly said he had not rejected the evidence.[89]
[89] ts, 14 September 2023, 1342.
In my view, the Magistrate properly directed himself as to the approach to take as to the appellant's evidence. That is, he could accept all, some or none of it.
Further, the Magistrate was able to, properly directed, not accept any of the appellant's evidence and, if he reached that conclusion then, correctly, he was to set aside all of the appellant's evidence he rejected as per the Liberato direction which he correctly gave to himself.
I do not consider that the Magistrate, as a matter of law, was obliged to consider the appellant's evidence separately and independently in respect of each charge as appears to be suggested by the appellant in his submissions.
In my view, the central part of this Ground, as identified above, suggests that a formalism was required and for the Magistrate to state in respect of each and every charge that he did not accept the appellant's evidence. No authority was cited which supports that proposition.
Further, in my view, it is within the contemplation or scope of a Liberato direction that the trier of fact may make an assessment that none of an accused's evidence be accepted and all of it is to be put to one side. It seems to me that as long as the trier of fact is directed (as was the case here) that the assessment of a witness's evidence (including the accused's) is not necessarily an all or nothing proposition then it is open to the trier of fact to reach the conclusion that they do not accept any of the accused's evidence. Such a conclusion would, necessarily, go across all of the charges where there are multiple counts and, in my judgement, does not disclose any error of law.
It is unclear whether the appellant in this Ground is complaining that the Magistrate somehow as a matter of law rejected his evidence on the basis of some propensity evidence or the evidence of the complainants. If that complaint is made, then, in my judgement, it could not be sustained. That is because, as I read the Magistrate's reasons, the rejection of appellant's evidence was reached after the Magistrate had considered the appellant's evidence in its totality. That is, it does not appear that the Magistrate reasoned from the complainants' evidence to conclude that the appellant's evidence should not be accepted.
As I noted above, there also appears to be some proposition put by the submissions under this Ground that the Magistrate erred in how he approached the propensity evidence in respect of the convictions.[90] Such submissions do not sit comfortably under this Ground as drafted.
[90] Appellant's submissions [28].
It is not entirely clear what the submission is, but it appears a complaint is made that:
1.whilst there may have been some evidence that indicated he had a sexual interest in some clients;
2.there needed to be a finding that he additionally was prepared to act on that interest.[91]
[91] Appellant's submissions [28].
Having regard to the Magistrate's reasons in respect of the four convictions, this complaint can only be advanced in respect of the convictions for Charge 2 (ET) and Charge 3 (AW) because the Magistrate did not use any propensity evidence or evidence from another complainant in finding Charges 1 (ZC) and 4 (CW) proved beyond a reasonable doubt.
The Magistrate, in my view, correctly directed himself as to the way in which he could use the propensity or tendency evidence, as identified in paragraph [49] above.[92]
[92] ts, 14 September 2023, 1318.
While it may be accepted that the Magistrate did not expressly separate out the sexual interest in some clients from the appellant's propensity to act on that interest, in my judgement, the directions that the Magistrate gave himself make it plain that he was not considering the sexual interest that the appellant had without taking into account his tendency to act on it. So much is plain, in my view, from the following self‑direction:
The fact that a person has a proven propensity or tendency to behave in a particular way does not in itself establish that on another occasion they have done the act alleged to constitute the charged offence. However, the existence of such a propensity may make it more likely that he did so. When this evidence is added to other circumstantial evidence it may assist in determining whether the charge has been proved beyond a reasonable doubt. That is, it is evidence that may be capable of adding weight to the prosecution case.
The first matter to consider in respect of this kind of evidence is whether the evidence establishes the existence of a propensity on the part of the [appellant]. This requires a consideration of what it is that the evidence said to be relevant to propensity actually proves. In this case, the propensity evidence referred to in the prosecution's submissions is the cross‑admissibility of each of the complainants' evidence in order to demonstrate that the alleged acts were intentional, sexualised in nature, and also to rebut any claim that the alleged acts were unwilled, accidental or for a legitimate purpose.[93]
[93] ts, 14 September 2023, 1318 - 1319.
When those self-directions are borne in mind while considering the way the Magistrate dealt with Charges 2 and 3 from a propensity point of view, in my view it is plain that the Magistrate did make a finding that the appellant was prepared to act, or had acted, on his sexual interest. I do not detect any error if, notwithstanding, the way this Ground is framed these submissions are put under the Ground.
Appeal Ground 2
The appellant asserts by Ground 2 that the notes made in respect of non-complainant clients were used by the Magistrate as tending to prove that he had a sexual interest in other clients apart from each individual complainant. He submitted that the notes were not admissible per se either as to the appellant's credit or otherwise and, in using them to make adverse findings about the appellant, the Magistrate erred in law.[94]
[94] Appellant's submissions [36].
Further, it was submitted that the prosecution was required to lead the notes as part of the prosecution case and the suggestion that the evidence was admissible as rebuttal evidence to the appellant's contention that he had no sexual interest in clients did not absolve the prosecution from that requirement.[95]
[95] Appellant's submissions [33] - [34].
The appellant contended that use of the notes generally in support of the prosecution's case relating to all the complainants was an error.[96]
[96] Appellant's submissions [37].
Notwithstanding those written submissions, on hearing the appeal, counsel for the appellant submitted that the Magistrate may have used the notes as part of his fact-finding process to reinforce his view that the appellant was interested sexually in his clients and, by inference, was prepared to act on that interest.[97]
[97] ts, 24 October 2024, 43.
It was submitted that the revisiting of the findings in relation to the notes after having given himself a Liberato direction, suggested that the Magistrate relied on the notes beyond the question of credibility and thus the notes were never expunged from the consideration of the case as a whole.[98]
[98] ts, 24 October 2024, 46.
In his submissions, the respondent Director says that there was no error of law, or miscarriage of justice arising out of the use of the notes as alleged by the respondent for three reasons.
First, the Magistrate properly used the notes only to make findings about the appellant's credibility, despite his earlier ruling that they were admissible for the purposes of rebuttal.[99]
[99] Respondent's submissions dated 17 May 2024 (Respondent's submissions) [9].
Secondly, the appellant was mounting an entirely different case on appeal than was mounted at trial. As adduced into evidence by the defence, the notes did not attract the principles about when the prosecution may split its case or otherwise call evidence in rebuttal.[100]
[100] Respondent's submissions [11].
Finally, even if the notes were not admissible in relation to the appellant's credibility, the cross-examination of the appellant about the notes occurred, with respect to credit, with defence counsel's consent and the failure of counsel to object to it was for a rational forensic reason.[101]
[101] Respondent's submissions [14].
At the hearing before me, counsel for the respondent contended that the Magistrate did not use the notes as propensity evidence in any way but rather only went to credit and in rebuttal.[102]
[102] ts, 24 October 2024, 84.
At most, in my assessment, the Magistrate used the finding made as to the appellant's sexual interest in clients to reason to guilt on the convictions for Charges 2 (ET) and 3 (AW) only.
The Magistrate had used the notes, with other matters set out above, to make that finding. (From that finding, as noted, the Magistrate gave himself a Liberato direction about which no complaint is made).
In relation to the finding of sexual attraction to at least some of his clients, in this respect I consider that the Magistrate was using the propensity or tendency evidence in a permissible way in line with the High Court's decision in DPP vRoder.[103] That is, the Magistrate was entitled to have regard to all of the evidence to consider whether it proved the tendency, and having been so satisfied of the tendency alleged, the Magistrate could use that as part of the (circumstantial) evidence in relation to any particular Charge.[104]
[103] DPP v Roder [2024] HCA 15; (2024) 98 ALJR 644 (Roder).
[104] Roder [26], [27].
In my view, that was what, permissibly, the Magistrate did in relation to Charges 2 (ET) and 3 (AW).
Further, in my view, the premise of this Ground is wrong and the relevance of the notes to the finding of sexual interest did not have to be made specifically in relation to ET and AW.
I do not detect any error in this respect as contended for by this Ground.
Appeal Ground 3
The appellant's submissions for this Ground state:
40. Having acquitted the Appellant of [Charge 9 (MA)], it was impermissible for the learned Magistrate to have used the evidence of the alleged offending in respect of any other count. Specifically, it was not admissible as propensity or tendency evidence.
41. Without a specific disavowal of having used this evidence in relation to any other charge, the reasons give the impression that it may have been so used.
42. To the extent that the learned Magistrate relied (for example at [ts, 14 September 2023, 1343] in relation to smelling semen) on the evidence led in support of this charge, in support of any other charge, his Honour was in error.[105]
[105] Appellant's submissions [40] - [42].
In his submissions on appeal, the appellant asserted that the Magistrate used the evidence of MA in support of each of the Charges for which the appellant was convicted and, in particular, in relation to the Charge 1 (ZC) and Charge 2 (ET).[106]
[106] Appellant's submissions [46] - [47].
I think there are the following fundamental misconceptions in the appellant's submissions:
1.it does not appear that the Magistrate used MA's evidence in reasoning to any of the convictions; and
2.the Magistrate did not use MA's evidence as part of his reasoning to reject the evidence of the appellant.
I do not consider that there is anything in the Magistrate's reasons which 'give the impression' that the Magistrate used MA's evidence in the way contended for by the appellant.
The appellant's submissions, also, submit that the Magistrate had impermissibly used the evidence of MA as to her smelling semen to support the conviction in relation to ZC (Charge 1).[107]
[107] see Appellant's submissions [42].
The Magistrate, in his reasons, did refer to both MA and ZC as having given evidence that they smelt semen.[108]
[108] ts, 14 September 2023, 1343. Although not shown as such in the transcript by a new paragraph, it is plain that this represented a new topic which was distinct from that of 'distress' which the Magistrate had previously been discussing.
According to the appellant, by making a prefatory statement about it prior to his analysis of the facts concerning ZC's complaint, it can be inferred that he used it to accept the evidence of ZC. [109]
[109] ts, 24 October 2024, 49 - 52.
However, in my judgement, the Magistrate's reasoning from when he first introduced MA and ZC's evidence of smelling semen to his conclusion that it would be 'dangerous' to accept the evidence of the smell of semen without very closely scrutinising the evidence[110] was a perfectly permissible direction to himself. I do not think that passage can be read in a way which would support this Ground.
[110] ts, 14 September 2023, 1343 - 1344.
Contrary to the submission of the appellant, at that point the Magistrate was not assessing whether or not to accept MA's evidence as to smelling semen and, further, was not considering whether to accept ZC's evidence. Simply, there, he was not considering the evidence of MA or ZC, nor whether the respective charges that their evidence went to were proved.
Further, when one looks at the reasoning process the Magistrate employed in relation to Charge 1 (ZC) it is clear, in my judgement, that the Magistrate did not use MA's evidence of smelling semen (or her evidence in any other respect) as part of his reasoning to guilt in relation to Charge 1.
I do not detect any error of the sort contended for by this Ground.
Appeal Ground 4
The complainant, AW, mentioned in this Ground gave evidence going to Charge 3.
As noted, the Magistrate did not consider or use any other complainant's evidence in reasoning to the convictions on Charge 1 (ZC) and on Charge 4 (CW) (including not using the evidence of AW).
The Ground as drafted does not attack the conviction in Charge 3 in respect of AW - rather, as framed, it is the 'use' of AW's evidence in respect of the other complainants and other Charges.
When one considers the Magistrate's reasoning in relation to Charges 1 and 4, as noted above, then properly understood the Ground as framed can only be a complaint in relation to Charge 2 (ET). The appellant's submissions[111] however focused on the conviction on Charge 3 (AW). The Ground and the submissions are, consequently, directed at different targets and it is difficult to know what to do with them.
[111] Appellant's submissions [43] and following.
On appeal, the appellant's submissions as to this Ground seemed to be based on an assertion that the Magistrate's finding that the comment was in itself indicative of a sexual interest in AW was not open on the evidence.[112]
[112] ts, 24 October 2024, 53 - 54.
Doing the best I can, it appears that the Ground and its submissions are complaining about the Magistrate's use of AW's evidence that the appellant had told her he liked the way she smelt.
In respect of Charge 3, the Magistrate accepted AW's evidence that the appellant told her he liked the way she smelt.[113]
[113] ts, 14 September 2023, 1356.
Only after making that finding without the 'aid' of any other complainant's evidence or any propensity or tendency evidence, the Magistrate found that was not 'small talk' but was an 'inappropriate conversation) [of a sexual nature]'.[114] The latter finding (of it not being small talk but being an inappropriate conversation) was reached on the basis of the Magistrate's rejection of the appellant's explanation of why he asked some clients about their perfume or smell and 'other findings that I've made'.[115]
[114] ts, 14 September 2023, 1356.
[115] ts, 14 September 2023, 1356.
There, 'other findings' appears to be a reference to the finding made that the appellant had a sexual interest in at least some of his clients.
These, to my reading, represent intermediate fact findings which were then used by the Magistrate to consider whether there was an accidental or unwilled act on the part of the appellant.
I do not detect any error in that reasoning.
The Magistrate then moved to consider AW's evidence as to what she felt touching her arm.[116]
[116] ts, 14 September 2023, 1356.
The Magistrate accepted AW's evidence as to what she felt including that 'it became firm and erect'.[117]
[117] ts, 14 September 2023, 1356.
Having accepted her evidence as to what she felt, the Magistrate stated:
Based upon those findings, as well as the findings that I've made in relation to his sexual attraction, at least to some of his clients, as well as the findings that I've made in relation to [Charge 1 (ZC)] and [Charge 2 (ET)], the only inference I can draw is that it was the [appellant's] penis touching her arm. I reject what it is that the [appellant] said about that in relation to the muscle on his leg…[118]
[118] ts, 14 September 2023, 1356.
The appellant submits that, in this regard, the Magistrate was 'backtracking' on his Liberato self-direction and that, absent the circumstantial evidence that he had purportedly eschewed, that finding was not open.[119]
[119] ts, 24 October 2024, 56 - 57.
As set out above, the Magistrate had, favourably towards the appellant, directed himself that he could only take into account in Charge 3 the evidence in relation to Charge 1 (ZC) and Charge 2 (ET) if he had already found them proved beyond a reasonable doubt.[120]
[120] see paragraph [52] above; ts, 14 September 2023, 1319.
In relation to the finding of sexual attraction to some at least of his clients, in this respect I consider that the Magistrate was using the propensity or tendency evidence in a permissible way in line with the High Court's decision in Roder. That is, the Magistrate was entitled to have regard to all of the evidence to consider whether it proved the interest and the tendency to act on it, and having been so satisfied, he could use that as part of the (circumstantial) evidence in relation to any particular Charge.[121]
[121] Roder [26], [27].
Thus, in my judgement, the Magistrate did not commit an error as asserted in Ground 4's submissions in respect of the conviction on Charge 3 (AW).
So, if this Ground is directed (notwithstanding its drafting) to the Magistrate's use of AW's evidence that the appellant had told her he liked the way she smelt in reasoning to guilt on Charge 3, then I do not detect any error.
That leaves the alternative that, notwithstanding the written submissions, Ground 4 as framed was really directed at attacking the conviction in Charge 2 (ET): that is, because the Magistrate did not use any propensity evidence or evidence from another complainant in finding Charges 1 and 4 proved beyond a reasonable doubt.
I have set out above the Magistrate's reasoning to his finding that the appellant had a sexual attraction at least to some of his clients.
That reasoning and finding relied, only in part, on the evidence of the appellant commenting on or asking questions about how some clients smelt.
When one looks at the full reasoning of the Magistrate as to the findings he made in relation to Charge 2[122] it is apparent that the Magistrate had accepted ET's evidence before referring to other 'findings' as to the appellant's sexual interest in some of his clients.[123]
[122] ts, 14 September 2023, 1349 - 1354.
[123] ts, 14 September 2023, 1354.
However, taking the Appeal Ground at its most favourable to the appellant, in my view, the Magistrate used the propensity or tendency, again, in a way permitted by Roder. I do not repeat here, my reasoning in paragraphs [133] above. But if, at the highest for the appellant, Charge 2 (ET) was not found by the Magistrate to be proved without the propensity or tendency, then I still do not detect an error.
Appeal Ground 5
This Ground only goes to the conviction in relation to Charge 3 (AW).[124]
[124] Appellant's submissions [50].
The appellant submitted:
52. The learned Magistrate correctly set out [ts, 14 September 2023, 1343] and considered the matters required of him by s 36BD of the Evidence Act [1906] (WA). More specifically that there may be good reasons why a delay in complaint might occur and that it were not to be taken as indicating that the complaint is false.
53. It is, however, settled law that in any case of a delayed complaint of sexual assault the Court is entitled to consider whether or not the fact of the delay does in the circumstances of the case cast some doubt on the veracity of the complaint: see Crofts v R (1996) 186 CLR 427.
54. Whilst in any given case a tribunal of fact is entitled to come to the conclusion that the delay has no adverse bearing on the veracity of the complaint, the delay itself is always capable of being relevant. Given that the [complaint] by AW involved a significant delay, it is submitted that the learned Magistrate ought to have at least turned his mind to the question of delay and how it may have impacted on the credibility of the complainant: see generally ADL v The State of Western Australia [2022] WASCA 12. Not to do so, it is submitted, was an error.
55. Whilst it may be arguable that no adverse finding was warranted in respect of delay, it was still a matter that needed to be considered: see FCG v State of Western Australia [2008] WASCA 47 at [87] and [94].
56. This Ground does not allege any complaint in relation to the issues arising from the forensic disability (or 'Longman' issues) occasioned as a result of the delay in complaint, which was adequately dealt with by the learned Magistrate [ts, 14 September 2023,1329 – 1330].[125]
[125] Appellant's submissions [52] - [56].
Before dealing with any of the Charges in particular, (including the case in relation to AW) the Magistrate, accurately noted, of the prosecution case:
1.that no complaints were made for some time in relation to some allegations;[126] and
2.allegations were not made known to the accused until he was charged in August of 2021.[127]
[126] ts, 14 September 2023, 1329.
[127] ts, 14 September 2023, 1329.
His Honour directed himself that he needed to consider the evidence of the witnesses in particular, and that sometimes an entirely honest witness could get something wrong because they had a defective memory or simply due to a lapse of time.[128] The Magistrate directed himself that because of the time that had elapsed the impact of that delay on a witness's recollection must also be a relevant consideration.[129] The Magistrate directed himself that the longer the delay in complaint or proper investigation the more opportunity there was for witness error as human memory was fallible and an honest witness could be wrong in their recollections.[130]
[128] ts, 14 September 2023, 1322.
[129] ts, 14 September 2023, 1323.
[130] ts, 14 September 2023, 1329.
The Magistrate then directed himself that:
1.the appellant had been forensically disadvantaged in the conduct of his defence because of the passage of time;[131]
2.had the appellant been made aware earlier he might have been able to recall precisely what he was doing on a particular day and could have explored other details such as where other patients, employees and so on were at the alleged times;[132]
3.the appellant had been unable to investigate whether any of the complainants' evidence was contradicted by or inconsistent with surrounding circumstances;[133]
4.the appellant had lost the opportunity to bring forward matters of defence, for example potential witnesses being people who were attending the business either as employees or clients at a similar or the precise same time and could have followed up Facebook chats et cetera;[134] and
5.the appellant had been forensically disadvantaged because he only remembered one of the complainants and had he been told earlier he may have remembered more.[135]
[131] ts, 14 September 2023, 1329.
[132] ts, 14 September 2023, 1330.
[133] ts, 14 September 2023, 1330.
[134] ts, 14 September 2023, 1330.
[135] ts, 14 September 2023, 1330.
Because the appellant's ability to test the complainants' evidence and marshal his defence had been negatively affected, the Magistrate directed himself that it was particularly important that he scrutinise the complainants' evidence with special care.[136]
[136] ts, 14 September 2023, 1330.
While the appellant does not contend there is any error in relation to these Magistrate's self-directions as to forensic disadvantages or Longman issues[137] they are, in my view, relevant to the complaint made in Ground 5.
[137] Appellant's submissions [56].
The Magistrate considered s 36BD of the Evidence Act when considering, in a general way, complaints that had been made by some of the complainants.[138] That reference to s 36BD of the Evidence Act was made generally rather than specifically directed to Charge 3 (AW).
[138] ts, 14 September 2023, 1342 - 1343.
Relevantly to this Ground, the Magistrate found that the massage which led to Charge 3 was in 2016.[139]
[139] ts, 14 September 2023, 1355.
Returning to the appellant's submissions quoted at paragraph [172] above, the appellant relied upon Crofts v R (1996) 186 CLR 427; FGC v State of Western Australia (2008) 183 A Crim R 313; [2008] WASCA 47; and ADL v State of Western Australia [2022] WASCA 12 to support the submission that the Magistrate erred in law by not turning his mind to the question of delay and how it may have impacted on the credibility of AW.
Each of Crofts, FGC and ADLconcern directions given to juries as to the impact of delay on the assessment of the evidence of the complainant. They are therefore, necessarily, not particularly apposite to this Appeal Ground which asserts not a mis(self-)direction on the part of the Magistrate, but rather a failure on the part of the Magistrate to turn his mind to the issue.
The Ground, substantively, is premised on an assertion that the Magistrate did not turn his mind to whether the question of delay may have impacted on AW's credibility.
I consider that the appellant cannot make out that premise and so the Ground must fail.
To my reading, the Magistrate was well aware, and took into account, that for some of the Charges there was a considerable delay between the events in question, the making of the complaint and the laying of charges.
Further, to my reading, the Magistrate was cognisant that such delays may impact on the credibility or reliability of a complainant's evidence.
While it may be accepted that the Magistrate did not specifically return to those matters in relation to AW when considering that specific complaint, I do not think that establishes that the Magistrate did not turn his mind to her reliability or credibility and the impact that delay may have had on them. I do not consider that premise can be made out when the Magistrate's reasons as a whole are considered.
Nothing, in the cases the appellant referred to, points to any other error made by the Magistrate, and none is otherwise asserted by the appellant.
In my view, the Ground must fail.
Appeal Ground 6
This Ground concerns the convictions on Charge 1 (ZC) and Charge 2 (ET).
A full recitation of the facts in relation to each charge or its circumstances is unnecessary.
It is sufficient for present proposes that the indecent assault was found by the Magistrate relevantly to be the touching of the particular complainant by the appellant's hand, while masturbating with his other hand.
Both charges involved allegations, found to be proven by the Magistrate, that after commencing a two‑handed massage of the particular complainant, at some point the appellant took one hand off the complainant and began to masturbate, while continuing the contact, with his other hand.
The Magistrate found neither complainant consented to being massaged in that way.[140]
[140] ts, 14 September 2023, 1349 for Charge 1 (ZC); 1355 for Charge 2 (ET).
The appellant contended that:
59. It is submitted that on a proper overview of each of these concepts and having regard generally to the observations of the Court of Appeal in Hayman v Cartwright (2018) 53 WAR 137, a masseur performing an act of masturbation at the same time as he or she was performing a massage (which had commenced entirely consensually) could not be said to have committed an indecent assault at law.
…
61.The learned Magistrate [ts, 14 September 2023, 1349] found that by masturbating with one hand and massaging the complainant with another, the act constituted an indecent assault. It was not contended by the defence at the hearing that the complainant should be taken to have agreed or consented to such a procedure.
62. It is submitted that however abhorrent or morally reprehensible such an act might have been, it did not constitute an indecent assault.
…
66. In the present case, the Appellant's one hand which was massaging the complainant was doing so from the outset with her consent and could not constitute an assault. The act prima facie of indecency which later came to be performed by the other hand was unconnected to the touching and the nexus required to constitute an indecent assault, it is submitted, was not established.
67. An indecent assault for the purposes of section 323 must be both unlawful and indecent. The touching being committed by the massaging hand was not unlawful because it was consented to. That consent was never withdrawn. That aspect of the Appellant's behaviour to which there was no consent was not, on the facts, capable of constituting an assault. The Appellant should have been acquitted on both these [Charge 1 (ZC) and Charge 2 (ET)].[141] (original emphasis)
[141] Appellant's submissions [59], [61] - [62], [66] - [67].
The central point of this submission, as I understand it, is that the touching of the complainant with one hand was consented to (presumably, because touching with two hands was consented to) and that consent was never withdrawn. The act of indecency came later (i.e. the masturbation) and was 'unconnected to the touching' and so the 'nexus' required for an indecent assault could not be established.
Many adjectives might be used to describe this submission.
On both Charges, the indecent act, as found by the Magistrate, was the appellant touching the complainant with one hand while masturbating with his other hand.
The appellant did not contend at trial, nor in this Court, that either complainant consented to this occurring. Whatever consent the complainants gave to the massage, did not extend to, or came to an end at, the appellant beginning to masturbate.
The continued touching by the appellant of the particular complainant cannot, as a matter of law, be divorced from the circumstance that the appellant has begun to masturbate at the same time. The Magistrate found that the combination of those things constituted the indecent assault and, in my view, it was well open to the Magistrate to make that finding. I discern no error in the Magistrate doing so.
As seen above, the appellant placed reliance on the Court of Appeal decision in Hayman v Cartwright.[142] It is unclear from the appellant's written submissions what the relevance was of the Court of Appeal's decision in Hayman v Cartwright to the particular issue agitated in this Ground. It was not elucidated at the hearing.
[142] Hayman v Cartwright [2018] WASCA 116; (2018) 53 WAR 137.
I do not understand the appellant to contend that the Magistrate misdirected himself as to 'indecency' within the meaning of an indecent act in contravention of s 323 of the Code. And, in any event, to my reading, (although not argued) such a challenge would face significant difficulties as the Magistrate appears, to my reading, to have adopted an orthodox approach to the definition of 'indecent'.
Appeal Ground 7
As I have not found any error as asserted in Appeal Grounds 1 - 6, I do not consider I need to consider this Ground further.
Appeal Ground 8
There are two principal elements, as I understand it, to this Ground.
The first, in respect of the four convictions, is that:
There was, for the reasons set out in Grounds 1, 2, 3 and 4, no properly admissible propensity or tendency evidence which supported [Charges 1 ‑ 4].[143]
[143] Appellant's submissions: [70] for Charge 1 (ZC); [81] for Charge 2 (ET); [89] for Charge 3 (AW); and [99] for Charge 4 (CW).
As seen, I would not uphold any of Appeal Grounds 1 - 4.
The second is that the four convictions were unreasonable or unsafe as the evidence could not support them.
The principles applicable to such a ground are well established.
The principles were settled by the High Court in M v The Queen.[144] They apply equally where the trier of fact is a judge alone: Dansie v The Queen[145]; KNL v The State of Western Australia;[146] or to a Magistrate: The State of Western Australia v Olive;[147] Webb v Tang.[148]
[144] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.
[145] [2022] HCA 25, (2022) 274 CLR 651 [8], [15].
[146] KNL v The State of Western Australia [2023] WASCA 72.
[147] The State of Western Australia v Olive [2011] WASCA 25 (2011) 57 MVR 269 [44] (Buss JA for the Court).
[148] Webb v Tang [2023] WASCA 119 [129] (Buss P & Vaughan JA); [313] (Mazza JA).
The principles stated in M v The Queen have been repeated in the Court of Appeal on many occasions.
Mitchell and Vaughan JJA summarised the principles in Zeng v The King[149] as follows:
1.The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
3.That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
4.In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
5.A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
6.If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court 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 appellate court must set aside the verdict.
7.The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.
[149] Zeng v R [2023] WASCA 25 [119] (Mitchell & Vaughan JJA; Quinlan CJ agreeing).
The task for the appellate Court is to consider the whole of the evidence for itself and determine whether, on an assessment of the totality of the evidence, the Court is left with a reasonable doubt as to guilt.[150]
[150] Zeng v R [120] (Mitchell & Vaughan JJA; Quinlan CJ agreeing).
In Pell v The Queen,[151] the High Court said that the function of the appellate court on such a ground was to proceed upon the assumption that the evidence of the complainant/s was assessed by the jury to be credible and reliable. The court examines the evidence to determine if notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the trier of fact ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[152]
[151] Pell v R [2020] HCA 12; (2020) 268 CLR 123.
[152] Pell v R [ [37] - [39] (the Court).
Further in Dansie, the High Court stated:
Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.[153]
[153] [2022] HCA 25, (2022) 274 CLR 651 [16] (the Court).
The Court of Appeal has said repeatedly, for example in Coomer v The State of Western Australia,[154] that:
[154] Coomer v The State of Western Australia [2024] WASCA 133.
Further, the nature and extent of the court's task when determining whether a verdict of guilty is unreasonable or cannot be supported will be informed by:
(a)the elements of the offence;
(b)the accused's defence;
(c)the issues in contest at the trial;
(d)the manner in which the trial was conducted;
(e)the way in which the case was ultimately left to the tribunal of fact;
(f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
(g)the particulars of the ground of appeal.[155] (citations omitted)
[155] [2024] WASCA 133 [303]; see also Wark v The State of Western Australia [2023] WASCA 66 [342] (the Court).
As I understand it, the references by the Court of Appeal to the task on appeal being informed by whether the tribunal of fact was a judge or a magistrate (see (f) as quoted immediately above) speaks to, at least, the matters stated by the High Court in Dansie[156] as set out in paragraph [213] above.
[156] Dansie [2022] HCA 25 [16].
The last matter that seems to me relevant at this point is to note that, leaving aside the propensity or tendency evidence, the prosecution case at trial was not circumstantial. Consequently, the below observations made by the High Court in Dansie are of less immediate application. There, the High Court stated:
… In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.[157]
[157] Dansie [17] (the Court).
Although, as I noted, I would not uphold any of Appeal Grounds 1 ‑ 4, I have approached this Ground by excluding from my consideration any of the propensity or tendency evidence to the degree that any of it was relied upon by the Magistrate in relation to the convictions. That is the approach most favourable to the appellant.
In considering the evidence for each Charge, I have considered the evidence given by the appellant. I have set out a summary of the appellant's evidence at the end of the discussion on Charge 4 (CW). I have only referred to the appellant's evidence in my consideration of the particular conviction below if it had a particular relevance to that Charge.
Also, it is significant to note that the appellant's evidence was that he only recalled the massage he performed on ET, which was the subject of Charge 2. Therefore, the appellant's evidence in relation to Charges 1, 3 and 4 was necessarily general as well as containing specific denials that he did any of the acts relevant to those Charges.
Charge 1 (ZC)
ZC was the complainant in respect of Charge 1.
The prosecution case was that, while performing a massage on ZC, the appellant began to massage her using only one hand, and that the one‑handed massage was accompanied by masturbation, which was indecent.[158]
[158] ts, 27 July 2023, 1175.
ZC gave evidence that, in or around July 2016, she booked in and attended for a remedial massage at Brilliant Massage.[159]
[159] ts, Western Australia Police v Wong, Magistrates Court of Western Australia at Geraldton, 18 March 2022, 205 - 206.
She believed that she had not attended Brilliant Massage before that date but conceded that it was possible that she had been on a previous occasion.[160]
[160] ts, 18 March 2022, 217, 218.
She recalled the massage room having a door rather than a curtain separating it from the rest of the clinic and that noises and smells travelled through the clinic.[161]
[161] ts, 18 March 2022, 219 - 220.
She says that, within five minutes of that massage commencing, the appellant made a comment to her to the effect 'you have very soft, smooth skin'.[162] ZC was partially undressed at the time, lying face down on the massage table.[163] ZC gave evidence that she thought it was strange for a massage therapist to make a personal comment on someone's physical appearance and such comment was unusual as compared to her previous experience as a client to a massage therapist.[164]
[162] ts, 18 March 2022, 206 - 207.
[163] ts, 18 March 2022, 206 - 207.
[164] ts, 18 March 2022, 207 - 208.
In response to CW's evidence that she could no longer hear his feet, he said that he usually massaged bare foot and that the flooring at Brilliant Massage was carpet.[407]
[407] ts, 15 September 2022, 891 - 892.
The appellant gave evidence from his client database about CW's massage on 19 December 2019.[408] The notes included: 'Panty low down to do lower glute, as the spot is from gemellus'.[409]
[408] ts, 15 September 2022, 885 and following: These notes became Exhibit 22: ts, 15 September 2022, 887.
[409] ts, 15 September 2022, 886.
The appellant gave evidence as to how he would have conducted the massage from those notes and from having the complainant's evidence put to him.[410]
The appellant's submissions
[410] ts, 15 September 2022, 887 and following.
The appellant submits that the finding in relation to CW was unsafe or unreasonable for the following reasons.
The appellant's submissions principally were to the effect that CW's evidence could only have resulted in a finding that was marginally open on the evidence[411] (whatever that means), and that such finding was not reasonably open when put with the things that 'bedevil' the analysis of the Charge.
[411] ts, 24 October 2024, 77 - 78.
Firstly, it is submitted that the 'allegation' that the appellant's right hand massaged very close to her vagina was a late entry being that it was not part of her evidence until the supplementary statement appeared a week before she testified in court.[412]
[412] Appellant's submissions [101].
Secondly, the appellant submitted that CW's evidence that the appellant had climbed onto the massage table and straddled her could not have been accepted in circumstances where she conceded that she did not hear or see him climb on to the table.[413]
[413] Appellant's submissions [102].
Thirdly, that CW's evidence that she could feel the skin of the appellant's penis should have caused concern given she said she could not say whether his penis was exposed.[414]
[414] Appellant's submissions [103].
Fourthly, it was submitted that CW possibly was motivated to complain by speaking to members of the Facebook group and the complainant ET, with whom she had become friends.[415]
[415] Appellant's submissions [104].
Fifthly, it was submitted that CW's initial complaint to the police did not say she believed the appellant had been masturbating[416] and, further, the evidence that her buttocks had been 'clapping' was something she had not previously asserted.[417]
[416] Appellant's submissions [105], [106].
[417] Appellant's submissions [106].
Sixthly, the appellant concluded the written submissions with the following:
Whilst it is accepted that it was open to the learned Magistrate as the tribunal of fact to accept or reject such of the evidence of the complainant as he saw fit, it is submitted that there was no reasonable basis for him to have done so in relation to the two separate allegations; namely the touching on the anus and the touching on the vagina.[418]
[418] Appellant's submissions [107].
Seventhly, the appellant submits that the acquittal made in relation to Charge 5 (KMG) was appropriate and the only way that Charge 4 (CW) could have realistically been dealt with.
Disposition re Charge 4
Considering the evidence given by CW, I do not have any reasonable doubt as to the appellant's guilt including after having regard to the matters identified by the appellant in his submissions.
That is also after having regard to the appellant's specific evidence as to pregnancy massages and the notes of the massage with CW and the appellant's more general evidence which I have set out below.
The acceptance of all of the appellant's evidence, especially his denials that the events took place, would have led to the possibility of there being a doubt. However, in my view, that possibility is assuaged by the considerable (and not to be underestimated) advantage that the Magistrate had here in seeing the witnesses.
I now turn to the specific matters put in the appellant's submissions.
The first matters complained of in the submissions go to the differences between statements the complainant made previously and her evidence in court. That also arises in the fifth and sixth set of matters put in the appellant's submissions.
Differences in accounts over time may well give rise to a doubt and may lead to the rejection of evidence given at trial.
However, any doubt they may have had raised is, in my judgement, here assuaged by the very considerable advantage by which the Magistrate had in seeing the witnesses.
The second submission put, is with respect, facile. CW gave evidence about feeling the appellant climb on to the table and straddle and sit on her. That evidence is capable of being accepted without there being a doubt because (when face down) she could not have seen the appellant climb on to the table and did not separately 'hear' him do so.
The third matter raised - the evidence CW gave about feeling the appellant's penis on her back - may have given rise to a doubt on the basis that she could not say whether his penis was inside or outside of his thin pants. Any doubt however, that may have given rise to is, in my judgement, assuaged by the advantage the Magistrate had in seeing the witness and assessing that evidence in the context of all of the other evidence given by CW.
The fourth matter raised ignores that the complainant went to police on the day of the massage; and made telephone contact with the police soon after; and had two officers attend at her house more than a year before CW knew about the Facebook posts, or met ET.
That is, the fourth submission could only be put by deliberately ignoring the chronology of the complainant's evidence.
The seventh matter is returned to under the following heading.
Inconsistent verdicts
In his submissions going to Ground 8 as identified above, the appellant asserted that the Magistrate made certain inconsistent findings in relation to the convictions for each of the four Charges involving the complainants ZC, ET, AW, and CW.
It was not clear from the submissions made as to whether in all cases the appellant was seeking to advance an argument that inconsistent verdicts had resulted.
In approaching these arguments, I have adopted the well‑established principles which have been set out in a number of cases.
For example, in NTH v The State of Western Australia [2020] WASCA 22 [60], the Court of Appeal stated:
An appellant alleging factual inconsistency faces a high hurdle. Such an appellant must satisfy the court that, as an exercise of fact-finding, in logic and reasonableness, the verdicts cannot stand together, meaning that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at conclusion. If there is a proper way by which the appellate court may reconcile the verdicts, allowing the court to conclude that the jury perform their functions as required, the verdicts will not be inconsistent in the relevant sense. (citations omitted)
In NTH, the Court further approved of the principles and observations identified by Owen JA in DPJB v The State of Western Australia [2010] WASCA 12 [81]. I have not set them out here.
Inconsistency between the findings in ZC and CW and KMG. In relation to CW, the Magistrate (while recording a conviction on other facts), did not find that the 'one-handed' massage meant that the appellant was masturbating. The Magistrate (in relation to this aspect of CW's evidence) made the following finding:[419]
I cannot find beyond a reasonable doubt that [the appellant] [massaged CW's buttocks] with one hand because the force she said was used could be either one hand on top of the other, or possibly one-handed. So there is another – a reasonable inference open. He could have been massaging her either way.
[419] ts, 14 September 2023, 1362.
Further in his reasons, the Magistrate went on to say about CW's evidence:[420]
Given their respective positions with him on top of her, and the possibility that he may have been massaging her with one hand, or that it might have been one hand on top of the other, or a finger of his hand that she felt, I have a reasonable doubt that the accused was masturbating because he might have been massaging with one hand on top of the other and therefore could not have been masturbating if that was the case. I also come to that doubt because she did not tell Ms Munro that she thought the accused had been masturbating. She did not tell the police initially that she believed that he had been masturbating. While I accept it's possible that she thought that by saying that the accused was massaging her one-handed was the same as telling them that she believed he was masturbating, in the end it is not the same. She made the direct allegation that the accused had masturbated immediately after speaking to [ET]. She had at that stage also seen the Facebook posts, and I cannot reject the reasonable possibility as to her belief of what occurred had been influenced by those things.
[420] ts, 14 September 2023, 1362 - 1363.
Relevantly, it may be noted that by way of comparison, CW's evidence was that she made an early complaint to SM as to the appellant touching her anus and massaging really close to her vagina, and that evidence appears to have been accepted by the Magistrate.[421]
[421] ts, 14 September 2023, 1358 - 1359.
The finding that the appellant touched CW's anus can be reconciled with the findings concerning KMG given that CW made this complaint to SM prior to being exposed to possible influence from Facebook posts or her conversation with ET.
The appellant submits that given ZC's 'acceptance' that it was possible that the one-handed massage could possibly have been one hand on top of the other, the Magistrate should have made the same finding in relation to ZC as was relevantly made in relation to CW.[422]
[422] Appellant's submissions [74].
I have set out above both ZC's evidence and the Magistrate's reasoning; which I do not repeat here.
While the evidence that ZC and CW gave about a 'one-handed' massage was superficially similar in that respect, there were significant differences in the totality of the evidence which they gave. For example, CW gave no evidence about there being semen at the scene following the massage. The Magistrate's acceptance that what ZC saw and smelled on the valance was semen and that it was located on an area of the valance where the appellant was standing when she heard the sounds that she believed was the appellant masturbating[423] is most significant. It provides, of itself, a ready basis on which the two findings might be reconciled in accordance with the authorities.
[423] ts, 14 September 2023, 1348.
I have set out in paragraph [93] above, the Magistrate's reasoning that led to his having a reasonable doubt about the masturbation aspect of Charge 4 (CW). It is plain that, leaving aside ZC's evidence about the semen post-massage, the other elements which appear in the Magistrate's reasoning (as to the evidence of CW) are not present in relation to ZC and provide further bases to reconcile the different verdicts.
By comparison, CW's evidence that the appellant was masturbating hinged on her evidence about his body movements, his breathing, the fact that his body weight was more backwards than forwards with very light one-handed pressure, and hearing him masturbating. Further, CW first spoke of the appellant's breathing being a reason why he was masturbating when she provided her first statement to police. Her evidence was that she didn't add that level of detail before because she was not asked specifically when she thought the accused was masturbating.
In my view, the findings, once all of the evidence is considered, are reconcilable.
Inconsistency between the findings on KMG and ET, AW and CW
In relation to Charge 5 (KMG), the Magistrate could not exclude the possibility that she was influenced and mistaken as to what occurred by her interactions with other people including by Facebook prior to making her police statement.[424]
[424] ts, 14 September 2023, 1366
He went on to enter a judgment of acquittal with respect to that Charge on the basis that:[425]
Because of those things, I cannot not exclude the reasonable possibility that, having been exposed to the Facebook reply, more so that she had heard stories on the news and about other women, that she was not possibly influenced and mistaken about what she says occurred.
[425] ts, 14 September 2023, 1366
According to the appellant, a finding of that type was appropriate in respect of the complainants ET[426], AW[427] and CW;[428] rather than convictions. It is unclear whether the appellant was submitting that the convictions were inconsistent verdicts with the acquittal on Charge 5. The submissions did not reach that level of clarity.
[426] Appellant's submissions [85].
[427] Appellant's submissions [94].
[428] Appellant's submissions [104].
As I understand what is sought to be submitted, it is that the Magistrate ought to have found in relation to each of the convictions in relation to ET, AW and CW that there was a doubt because there had been some interaction between them and other women. And, that the doubt found in relation to the complainant KMG should also have been found in relation to the three identified convictions. These submissions also sought to include, by way of support, differences in statements made to the police and the evidence subsequently given in court by the three complainants (where convictions were recorded).
Much of this territory has been covered in relation to the specific Charges above. The appellant does not, in these submissions, grapple with the differences in timing of complaints made to the police prior to the interactions to which he refers. Rather, as I understand it, there is a superficial similarity relied on in that the three complainants (where convictions were recorded) had interactions with other women, as did the complainant KMG.
For example, ET's evidence that the appellant was masturbating was consistent with the complaint she made immediately after the massage to DD, which was borne out by his evidence. ET complained about the massage to DD before any of the discussions she had with TM, CW and MA had occurred.
And, also, the appellant's submissions do not deal with the whole of the particular complainant's evidence. The Magistrate in each case considered the differences, if any, between the statements made to the police and evidence given in court. These were matters fully taken into account by the Magistrate and which, on my findings above, do not render the convictions unsafe or unsupported. I do not think that the linking of the differences to the interactions with other women advances the appellant's submissions.
The differences or discrepancies in the statement KMG gave to police and her evidence in Court were identified by the Magistrate to be substantial and numerous as compared to those discrepancies in relation to ET, AW and CW.[429]
[429] ts, 14 September 2023, 1366.
The Magistrate also reviewed the evidence given about what was said in the interactions between the particular complainant and the other women. It is plain that these all factored into his assessment of the credibility and reliability of the particular complainant's evidence.
When the whole of the particular complainant's evidence; the chronology of complaints; statements to the police; and the interactions with other women are taken into account, each of the convictions is readily reconcilable with the Magistrate's reasoning in relation to Charge 5 and the acquittal on that Charge.
I have already dealt above with the differences or discrepancies the appellant drew attention to between the account of ET and DD. I do not repeat that discussion here.
Return to the massage clinic
In relation to AW returning to Brilliant Massage following the occurrence of the incident the subject of the allegation, the appellant submitted that a finding of the kind made in respect of the complainant CM was appropriate.[430]
[430] Appellant's submissions [96].
The complainant CM (Charges 6 and 7) attended Brilliant Massage, and received a massage from the appellant, on an occasion subsequent to the occasion of the alleged incident. In acquitting the appellant of those Charges, the Magistrate reasoned as follows:[431]
However, I have a real doubt that [CM] would return to Brilliant Massage at all, if she believed he accused had done the things she alleged in the first massage. In particular, I do not accept that, having returned, she would accept another massage from him if she believed that he had done the things to her. I take the view she would not have gone anywhere near Brilliant Massage if she believed he had done the things on the first occasion. I have a real doubt and I do not accept that if she had believed the accused had done the things she said occurred in either massage, that she would return to Brilliant Massage even again, notwithstanding that she said it was with another therapist without, in my view, making sure – at least making an inquiry about the possibility of the accused being there when she returned.
[431] ts, 14 September 2023, 1370
According to the appellant, the Magistrate should have made a finding to that effect in relation to AW, given AW's evidence that she may have attended Brilliant Massage about a year later.[432]
[432] ts, 14 September 2023, 1356
Again, however, the differences in the evidence given provide a ready reconciliation for the different outcomes. AW's evidence was that she had returned but had been massaged by a female masseuse and not the appellant on that subsequent occasion.[433] Further, AW's evidence was that she had not had a massage since with a male masseuse.[434] Even if that difference, by itself, could have given rise to an inconsistent verdict (and I would not accept that is so) there is, in the evidence, a significant enough difference to provide a straight-forward reconciliation of the different outcomes.
The appellant's evidence
[433] ts, 15 March 2022, 171.
[434] ts, 15 March 2022, 157.
The appellant accepted that:
1.at all relevant times he was the owner of, and massage therapist at, Brilliant Massage located on Marine Terrace in Geraldton; and
2.each complainant was, at a certain point in time, a client at Brilliant Massage, and that he provided a massage to each of them.[435]
Learning and training
[435] ts, 14 March 2022, 23.
The appellant gave evidence that he first learned about remedial massage in Hong Kong after suffering an injury to himself.[436]
[436] ts, 13 September 2022, 594.
He was shown massage techniques by his treating physiotherapist and a Chinese massage therapist, focusing mainly on the hamstring, calf and ankle of the body.[437]
[437] ts, 13 September 2022, 593.
After moving to Australia in 2012,[438] he began working as a massage therapist at Body Haven in Airlie Beach some time in August or September of 2013.[439]
[438] ts, 13 September 2022, 592.
[439] ts, 13 September 2022, 596 - 597.
Prior to performing massages on clients, the appellant undertook training for a duration of eight weeks.[440] He was taught to massage the full body with the exception of 'private sensitive parts' such as the genital area and breasts.[441] That training was informal, provided by staff of Body Haven, and did not result in the appellant receiving any qualification such as a certificate or diploma.[442]
[440] ts, 13 September 2022, 596; ts, 24 July 2023, 927 - 928.
[441] ts, 13 September 2022, 596.
[442] ts, 13 September 2022, 597; ts, 24 July 2023, 928.
Upon completion of the training, the appellant worked as a massage therapist at Body Haven on a fulltime basis for a period of ten months before moving to Geraldton in 2014.[443]
[443] ts, 13 September 2022, 596.
In Geraldton, the appellant purchased a massage clinic called Ben's Massage located at 87 Marine Terrace, Geraldton.[444]
[444] ts, 13 September 2022, 598 - 599.
He renamed the business Brilliant Massage approximately two weeks later and commenced operating on 26 August 2014.[445]
[445] ts, 13 September 2022, 598.
In October of 2018, the business moved to 98A Marine Terrace, Geraldton where it continued operating until 2021.[446]
[446] ts, 13 September 2022, 599.
The appellant commenced formal training at Evolve College in March 2016.[447]
[447] ts, 13 September 2022, 600.
He said that he did so to enable his clients to claim rebates from private health providers which required him to be accredited.[448]
[448] ts, 13 September 2022, 600.
The appellant graduated with a diploma of remedial massage near the end of 2018 following completion of the training at Evolve which ran for a duration of about two and a half, or possibly three years.[449]
[449] ts, 24 July 2023, 928, 956.
After obtaining his qualification, the appellant applied to become a member of the Australian Institute of Massage Therapy (AMT) and remained a member until Brilliant Massage ceased operation in 2021.[450]
[450] ts, 13 September 2022, 601, 602.
In addition, the appellant said that he continued to develop his knowledge by reading books on anatomy and trigger points and completed online courses.[451]
[451] ts, 13 September 2022, 628.
He said that he also attended a 'wet lab' course on the nervous system and massage at UWA on three to four occasions between 2018 and 2020.[452]
[452] ts, 13 September 2022, 629.
The appellant gave substantial evidence about the comparisons between the informal training he received at Body Haven and the formal training he completed at Evolve College.
In particular, he gave evidence of the differences in the duration of the actual performance of the massage, the focus on communication between massage therapist and client, the draping techniques used to cover clients, and the massage techniques utilised and areas massaged on.
He said that he adopted a variation of approaches learnt at each depending on the needs of the client.[453]
[453] ts, 13 September 2022, 606.
The appellant's evidence was that English was his third language and that, although he began learning to speak it in school, his English was 'pretty bad' when he arrived in Australia.[454]
[454] ts, 14 September 2022, 706.
He said that his English has improved between 2014 and 2021 and described it as fair at the time of trial.[455]
Duration
[455] ts, 14 September 2022, 707.
The appellant's evidence was that at Body Haven he was taught that the performance of the actual massage should last the duration of the booking, while at Evolve the duration of the booking was also inclusive of a pre and post assessment. He said that he adopted the approach he learnt at Body Haven with all clients regardless of gender. He said he did so out of fairness to his clients.[456]
Consent and communication
[456] ts, 13 September 2022, 620.
The appellant's evidence was that the communication taught at Evolve College was more professional. He detailed the ten‑minute pre‑assessment as being a consult between the client and massage therapist which involved a discussion about any injuries and an explanation of the treatment approach and said that consent would be sought from them as to how the massage was to be performed.[457]
[457] ts, 13 September 2022, 610; ts, 15 September 2022, 910, 929.
He said that after studying at Evolve he would conduct more of a pre‑assessment than he had done previously but did not adopt the full pre‑assessment.[458]
[458] ts, 24 July 2023, 931.
He said that Evolve taught him to obtain and provide written and informed consent but said that he did not employ the obtaining of written consent at Brilliant Massage to avoid administrative work for the therapists.[459]
[459] ts, 13 September 2022, 624.
He said that he did seek informed consent from his clients and would ask them for permission by saying things such as 'Do you want to do the bum today', 'Can you move your underpants', and 'Can I move your underpants'.[460]
[460] ts, 13 September 2022, 612 - 613, 625.
Additionally, his evidence was that Evolve taught him that any break in contact during the performance of a massage needs to be communicated to the client.[461] He said that he would tell the client if he was leaving the room or getting massage oil but only if his hands were going to be completely off the client's body.[462]
[461] ts, 13 September 2022, 625.
[462] ts, 13 September 2022, 626.
He denied learning that both of the therapist's hands should be massaging the client at all times and if a hand was removed it needed to be communicated to the client.[463]He said that he would not do that as he thought it to be too disruptive for the client.[464]
Draping
[463] ts, 13 September 2022, 626.
[464] ts, 13 September 2022, 626 - 627.
The appellant in his evidence described the draping techniques taught at Body Haven and Evolve as being the same;[465] however, denied in cross‑examination that they taught the same draping technique which went from the hip diagonally down to the knee.[466]
[465] ts, 13 September 2022, 607.
[466] ts, 24 July 2023, 941 - 943.
His evidence was that the draping technique taught at Body Haven provided less coverage of the client as compared to that taught at Evolve College. He said that his approach was more akin to that of Body Haven because it gave him better ability to work on what the client needs.[467]
[467] ts, 13 September 2022, 609.
He agreed that he was taught to use two towels in draping at Evolve but said that he did not follow that teaching because, in his view, a single towel was large enough to adequately cover the client's body and he wanted to avoid laundry.[468]
Lowering of underwear
[468] ts, 13 September 2022, 621; ts, 24 July 2023, 959.
The appellant denied there being a change in who was to lower the client's underwear while he was at Evolve in 2016 and said that he was taught that the therapist is to lower the client's underwear, to allow the therapist more control.[469]
[469] ts, 13 September 2022, 627.
At Evolve, his evidence was that there was a clear guideline as to where the client's underwear could be lowered, being the greater trochanter line, existed.[470] He said that Body Haven did not specify a level and there he was taught to lower underwear to the area needed to perform the massage or where the client has indicated that they would allow their underwear to be lowered to.[471]
[470] ts, 13 September 2022, 612.
[471] ts, 13 September 2022, 612.
Despite the difference in teachings, his evidence was that the practice is 'pretty much the same' and even without the guideline taught at Evolve he would usually lower underwear to the greater trochanter line.[472] However, the level would sometimes vary depending on the client's condition and their anatomy where he may need to lower their underwear to about one inch below the greater trochanter line.[473] He said that this meant that some clients might have greater exposure of the buttocks.[474]
Technique
[472] ts, 13 September 2022, 612.
[473] ts, 13 September 2022, 612 - 613.
[474] ts, 13 September 2022, 614.
The appellant said that he would sometimes perform dry massages to allow him to apply a deeper pressure but agreed that Evolve taught him to perform only oil massages.[475]
[475] ts, 13 September 2022, 620, 623.
He also said that he would use his elbow and forearm in performing a massage as he was taught at Body Haven but agreed that he was taught not to do so at Evolve.[476]
[476] ts, 13 September 2022, 635.
He agreed that he was taught not to massage a client's groin, inner thigh or middle or lower glute at Evolve.[477]
[477] ts, 13 September 2022, 630 - 633.
He said that he has massaged the inner thigh of clients if they complained of pain in that area but would obtain 'extra consent, extra permission'.[478]
[478] ts, 13 September 2022, 632.
He was taught to do so, he said, at Body Haven and through online course videos.[479]
[479] ts, 13 September 2022, 632.
Similarly, he said that he has massaged the middle and lower glutes on clients experiencing pain in the hamstring, glutes and lower back. Again, he said he was taught to do so at Body Haven and through online class videos.[480]
Layout of premises
[480] ts, 13 September 2022, 634.
The appellant described the premises at Brilliant Massage at its location in 2018. He said the premises:
1.included a kitchen area and what he described as a staff area at the rear, which was separated from the clinic by door;[481]
2.were somewhat open plan;[482] and
3.included a reception area to the front of the premises with a corridor leading to four separate treatment rooms.[483]
[481] ts, 14 September 2022, 698.
[482] ts, 14 September 2022, 700.
[483] ts, 14 September 2022, 700.
With respect to the treatment rooms, he said:
1.three of those rooms contained a massage bed and the fourth contained two chairs which he said were for massages focusing on reflexology of the feet;[484]
2.each of the massage tables were portable and adjustable in height, set up on the third slot from the top because of his height and to allow him to comfortably apply pressure while performing a massage.[485] One was brought into court and used for demonstration purposes at the trial;[486]
3.the rooms shared partial walls that did not reach the ceiling and were each closed off by a curtain;[487]
4.the gap above the walls separating the rooms of the clinic allowed noises such as music, other conversations and the sound of undressing to travel through the entirety of the clinic;[488] and
5.smells such as those from the preparation of food and the application of essential oils or Tiger Balm travelled through the clinic and could be smelt in the other rooms.[489]
[484] ts, 14 September 2022, 698, 702
[485] ts, 14 September 2022, 691 - 692.
[486] ts, 14 September 2022, 691.
[487] ts, 14 September 2022, 704.
[488] ts, 14 September 2022, 704 - 706.
[489] ts, 14 September 2022, 706.
The appellant said that there were always multiple therapists working at one time and that there would be between two and four other people working with him at any given time.[490]
What the appellant wore
[490] ts, 14 September 2022, 706.
The appellant said that he would usually wear a black t‑shirt and long black pants while working and performing massages at Brilliant Massage.[491]
[491] ts, 14 September 2022, 683.
His evidence was that it was most common for him to wear long black 'sports' pants that were elasticated and had a drawstring at the waist but that were otherwise tight. He said that the pants were thin and may create sound through the movement of his body.[492]
[492] ts, 14 September 2022, 684 - 688.
His evidence was that on some occasions he wore jeans which had stretch in the inner thigh but tight around the waist and were fastened by a belt and zip.[493] However, he never wore shorts.[494]
[493] ts, 14 September 2022, 684 - 688.
[494] ts, 14 September 2022, 687.
He said that he would always wear underwear that he described as a 'speedo type' underneath his pants.[495]
[495] ts, 14 September 2022, 688.
He said that he had always worn the same sort of t‑shirt, noting that a green logo was added to it on the left-hand side of the chest area in 2015 or 2016.[496]
Appeal Grounds 9 & 10
[496] ts, 14 September 2022, 683 - 684.
As framed, I understand that:
1.Appeal Ground 9 asserts an error of law, being the wrong test was adopted by the Magistrate in approaching the appellant's application for costs following his acquittal of six charges; and
2.Appeal Ground 10 asserts an error of fact in the Magistrate deciding there was not extra-legal work (and presumably, costs) in the appellant defending the six charges in respect of which he was acquitted.[497]
[497] Appellant's submissions [109] - [115].
As I understand it, these two Grounds are put independently. That is, they are put on the basis that the appellant is otherwise unsuccessful in his Grounds 1 - 8.
As the distinction between the two Grounds was not so clear in the appellant's oral argument, it is convenient to consider the two together.
Following the appellant's conviction, the question of costs was argued at the same time as the sentencing hearing.
The appellant's counsel (who did not appear in this Court):
1.noted that she had sent through to the Magistrates Court her schedule of costs which was done on a total basis (not simply in respect of the six acquittals);[498]
2.submitted that she was not sure how to break the costs down as there was a degree of overlap in the preparation of the matter;[499] and
3.submitted that while each complainant was separate there were some witnesses who addressed matters in general.[500]
[498] ts, 22 December 2023, 2.
[499] ts, 22 December 2023, 2.
[500] ts, 22 December 2023, 2.
The Magistrate after referring to s 7(1) of the Official Prosecutions (Accused's Costs) Act 1973 (WA) said:
Given that 31A was accepted by the defence as - that each, if you like, complainants' evidence was cross-admissible as against the other, and I found that, how would I be satisfied that the accused incurred additional costs? I mean, put simply, if the prosecution had charged Mr Wong with the four that he was convicted of but called those other witnesses for uncharged 31A evidence, it would have been the same trial at the same length, the same evidence and the same cross-examination.[501]
[501] ts, 22 December 2023, 2 - 3.
In response, the appellant's counsel:
1.said she did not think she could address the Magistrate further on that;[502]
2.said that she 'appreciated' the point she took the Magistrate to be making about there not being additional costs because it would have been the same trial in the circumstances the Magistrate put;[503] and
3.agreed that the defence would have had to have addressed all of the evidence led pursuant to s 31A of the Evidence Act.[504]
[502] ts, 22 December 2023, 3.
[503] ts, 22 December 2023, 3.
[504] ts, 22 December 2023, 4.
The Magistrate then dismissed the application for costs by the appellant.[505]
[505] ts, 22 December 2023, 4.
All that I would draw from that exchange below on the questions of costs, is that the approach taken by the Magistrate was not challenged, and indeed appears to have been accepted, by the appellant's then counsel.
The significance of that is that it did not appear to trial counsel for the appellant that his Honour was making any error in the view that he took as to how the trial had unfolded by reason of the evidence led pursuant to s 31A of the Evidence Act.
Indeed, it may be observed that the appellant's trial counsel had herself had difficulty in knowing how to break down the costs because of the overlap in the preparation of the matter.
The appellant in this Court does not complain that the Magistrate wrongly, as a matter of law, admitted the s 31A evidence at the trial. Rather, the complaint (in other Grounds) is as to the use which the appellant says the Magistrate made of that evidence.
With respect, I have been unable to understand what is the error of law the appellant asserts to support Ground 9.
With respect, the Magistrate appears to have addressed the matters required to be addressed by s 7(1) of the Official Prosecutions (Accused's Costs) Act, both in the exchange with counsel and in his reasons.
I now turn to Ground 10.
Contrary to the contentions made by the appellant on appeal,[506] I consider it was open (factually) for the Magistrate to reach the conclusion that he did as to there being no additional work required by the appellant at trial.
[506] Appellant's submissions [113].
The appellant's submissions in this Court, rather breezily, asserted that:
…
There were additional issues and submissions which needed to be properly addressed and tested by counsel for the appellant in respect of each complainant, compared to what the situation might have been had they merely been witnesses as to tendency or propensity. [507]
[507] Appellant's submissions [113].
No substance was put either in writing or orally to support that proposition. I do not find it to be made out.
In the result, I can discern no error in the way that the Magistrate approached the question of costs. The Magistrate defined the relevant statutory provision and considered whether any additional costs had been incurred. It appears that the appellant's counsel at trial was unable to identify any; as was the appellant's counsel in the appeal.
Nor, apart from the assertion in Appeal Ground 10 that the Magistrate was wrong, was any matter pointed to by the appellant to make good that proposition.
Both Appeal Grounds 9 and 10 appear to me to be without substance and in the absence of an appealable error being identified by the appellant in these grounds, they must fail.
Disposition of the Appeal
For the above reasons, I would not grant leave to appeal on any of the Appeal Grounds. Consequently, I dismiss the appeal.
I will hear the parties, as needs be, on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Justice Howard
31 JANUARY 2025
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