Zhang v Police - [2015] SASC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ZHANG v POLICE
[2015] SASC 121
Judgment of The Honourable Auxiliary Justice Duggan
21 August 2015
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - EVIDENCE OF GOOD CHARACTER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Appeals against conviction and sentence. Appellant convicted of seven counts of indecent assault and sentenced to a term of imprisonment for five months. The circumstances of the offending were that the appellant, whilst working at a massage parlour, inappropriately touched two women on whom he was performing massages on two different days. The women did not know each other and made separate complaints against the appellant to police and to their mothers. The appellant’s conduct in respect of each complaint followed a similar pattern. The appellant was interviewed by police but did not give or call evidence at trial.
Whether the failure to call good character evidence resulted in a material irregularity in the conduct of the trial and a miscarriage of justice. Whether the magistrate erred in his assessment of the evidence concerning the CCTV camera. Whether the magistrate erred in his assessment of the exculpatory statements in the appellant’s police interview. Whether the exercise of the discretion not to suspend the sentence miscarried.
Held (dismissing the appeal against conviction and the appeal against sentence):
1. There is not a significant possibility that the failure to call good character evidence affected the result of the trial.
2. The magistrate did not err when dealing with the evidence concerning the CCTV camera.
3. The magistrate did not err in his assessment of the exculpatory statements in the appellant’s police interview
4. The magistrate referred to all relevant matters when sentencing and did not make any error of principle. The decision not to suspend the sentence was within the proper exercise of the magistrate’s discretion.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
TKWJ v The Queen (2002) 212 CLR 124; Nudd v R (2006) 225 ALR 161; R v Bazan [2010] SASCFC 50; Melbourne v The Queen (1999) 198 CLR 1; Spence v Demasi (1988) 48 SASR 536; Mule v R (2005) 221 ALR 85, considered.

ZHANG v POLICE
[2015] SASC 121
Magistrates Appeal: Criminal
DUGGAN AJ.

The appellant was tried in the Magistrates Court on an Information charging him with seven counts of indecent assault. The first three counts alleged that he indecently assaulted TB on 14 January 2013 and the remaining four counts alleged that he indecently assaulted RP on 15 January 2013. According to the prosecution case, the offences took place at a Chinese massage shop situated in the Westfield Shopping Centre, Marion, where the appellant had been working as a masseur for approximately two weeks prior to the alleged incidents.
The appellant was convicted on all counts and sentenced to an immediate single sentence of imprisonment for five months. He has appealed against conviction and sentence.
The two complainants, who did not know each other, requested a full body massage on the respective occasions on which they went to the premises. Particulars which were supplied with the charges were as follows:
As to [TB]:
Count 1:whilst the victim was lying face down on the table, [the appellant] massaged against her bare skin in between her legs close to the groin area.
Count 2:whilst the victim was lying on her back, [the appellant] massaged the front of her legs, going under her dress against the bare skin to her stomach, moving across her groin area.
Count 3:whilst the victim was lying on her back, [the appellant] put his hand in a cupping motion on her breasts.
As to [RP]:
Count 4:whilst the victim was lying face down on the table, [the appellant] put his hand too close to her bottom and later went over her bottom quite hard.
Count 5:whilst the victim was lying face down on the table [the appellant] ran his hand over her butt (buttocks) quite hard.
Count 6:whilst the victim was lying on her back [the appellant] groped/fondled her breast over her bra.
Count 7:whilst the victim was lying on her back, [the appellant] placed his other hand down on top of her vaginal area, tapping it with some pressure.
The magistrate summarised the evidence of each complainant in his reasons for judgment. The following descriptions are based on those summaries.
The complainant TB
TB said she was at the Marion Shopping Centre on 14 January 2013 and decided to have a massage. She went to the We Massage shop and spoke to the appellant. According to TB, the appellant asked her whether she wanted an oil massage or a muscle massage. She said she wanted the latter. She said that she had previous massages at the shop and a muscle massage had always been administered over her clothes with a cloth placed over the clothes and body.
TB said it was a hot day and she was wearing a maxi dress down to her ankles. She was wearing a brassiere and underpants under her dress. She said the appellant directed her to lie face down on the massage table. He then placed a cloth over her back and used his forearms to massage her back and neck. He then started to massage her buttocks and legs. At first this took place over the cloth, but then the cloth was pushed aside and he massaged her body directly under her dress and on her skin. She said she felt extremely uncomfortable about this but did not react.
According to the witness, her dress “rose up” to her knees and the appellant massaged along her legs to the point where he was massaging very close to her groin and inner thighs. This was on her skin and went on for five to ten minutes which caused her to feel scared and confused.
The appellant then asked her to turn over onto her back and he placed a cloth over her eyes. He then commenced massaging the front of her legs and inner thighs extending very close to her vagina. This was on her bare skin with her dress pushed up and without any cloth covering her.
The witness said that, after massaging her legs and stomach, the appellant said “Chest?” to which she responded “Yes”. She said she assumed the appellant meant her chest above her breasts. She said that she then felt the appellant’s hand on her breasts over her dress and she was “groped in a sexual way”. She demonstrated with her fingers forming a cup and then closing and opening her fingers. The massage was to both breasts. TB said the appellant told her she was beautiful and asked how old she was. She said she was 27. The appellant asked her if she was married and she replied “No”. She said by then she was scared and crying.
After the massage the appellant and TB walked to the counter and she paid for the massage. As soon as she left she telephoned her mother and told her the man had “grabbed her boobs”. She then went home and told her partner what had happened. She told him the massage was inappropriate and the man had touched her breasts. She also said that the man had gone rather close to her “knicker line”.
The magistrate summarised parts of the cross-examination of the witness. She denied that after the massage she said “It was good”. When asked why she assented to being massaged on the chest after she had been massaged on her upper thigh and groin, she said she did not in her wildest thoughts imagine that by “chest” the appellant meant her breasts. She said she made no adverse judgment about the appellant until he lifted her dress and began to massage under it. She agreed that she had not complained about him massaging her groin, either when she was on her front or on her back, and she did not complain about her breasts being rubbed. She agreed she did not complain while she was in the shop. She denied that there was any language difficulty when conversing with the appellant.
TB’s mother was called to give evidence. She said her daughter rang her on the day of the incident in a distressed condition. Her daughter told her that she had just been having a massage and the man had asked her whether she would like her chest done. She agreed but said she did not know what that meant and that the man then started to touch her breasts. She asked her mother whether that was right or normal. According to TB’s mother her daughter said that the man had asked how old she was and told her that she was very pretty. He had asked her whether she was married.
The complainant RP
RP said in evidence that on 15 January 2013 she went to the Marion Shopping Centre at approximately 5:35pm. As she was walking back to her car after finishing her shopping she decided to have a neck massage at the massage shop. She had visited the premises for a massage on previous occasions. When she entered the shop she decided to have a neck and back massage.
The witness was wearing a summer dress which came down just below her knees, a brassiere and underpants. The appellant stepped forward to perform the massage. RP lay on her front as directed and, at her request, a pillow was placed under her stomach. A cloth was placed over her, which reached from her neck to the ankles.
She said the appellant massaged her neck for approximately 10 minutes and then began massaging her “all over the place”. She said she felt her dress being pulled up above her buttocks and that this occurred on two occasions. When it occurred she felt her buttocks being massaged quite hard and on occasion she exclaimed “Oi” and pulled her dress down. She said that on each occasion she “gave him the benefit of the doubt”.
After a time, the appellant told RP that his boss had gone home and he would give her a special massage. She agreed to lie on her back and a cloth was put over her front from her chest down to her feet. The appellant then started massaging close to her chest and shoulders and told her to close her eyes. The appellant then told her that she was beautiful and had beautiful black skin. He asked her if she was married and how many children she had.
According to the witness, the appellant began massaging closer to her breasts and then put his right hand on her right breast for a couple of seconds, moved his hand a little and, at the same time, put his hand over her vaginal area, patting it once and saying “Can I play with you here?”. The witness said “No you cannot” and started to get up. He asked whether she was shy and she replied that she did not want what he was doing to her. She said she gathered her things, paid $30 and went to her car. She said she was distressed and when she got home she rang her mother and told her that something had happened during a massage at Marion. She said she told her mother that the appellant had “grabbed her boob” and “touched her fanny” while asking if he could play with her.
RP’s mother gave evidence that her daughter telephoned her at about 6:30pm. She said her daughter told her she had been to the Marion Shopping Centre and had a massage. She told her mother that the man giving her the massage told her his boss had gone and, during the massage, he patted her near her vagina.
Police Interview
The appellant was interviewed by police on 16 January 2013. He agreed he massaged TB. He denied lifting her dress up above her knees and massaging her bare legs. He said the police could check the CCTV. He denied asking her if she wanted a chest massage. He denied touching TB on her breasts over her clothing. He denied telling her that she was beautiful and asking her age. He also denied asking if she was married. He said she was very happy when she left and she had asked for his name.
The appellant was asked about the massage of RP. He said his boss had told him just to massage her back. He said she stated that her shoulder was aching and she also asked him to massage her leg. He denied touching her on the breasts after she had turned over on to her back. He also denied massaging her buttocks and pulling her dress up while she was lying on her stomach. He said that the police could check the CCTV. He said his boss told him that if the customer complained, the CCTV was running 24 hours. The appellant denied that RP’s dress came up quite high on her buttocks and said she had a towel over her while she was on her stomach and back. He denied saying that he would give her a special massage.
The appellant denied asking RP if she was married. He said she asked him how long he had been in Australia and he told her he had one daughter. He asked how many children she had. She said she had three. He denied telling her she was beautiful. He also denied moving his hands over one of her breasts. He denied putting his hand on top of her vaginal area and tapping it. He did not ask her if he could touch her there. He denied touching her anywhere near her genital area. He said he did not ask her if she was shy. He said sometimes while massaging he might touch the breasts accidentally but did not do it on purpose.
The appellant did not give evidence at the trial.
The magistrate found the charges proved beyond reasonable doubt. He found the evidence of the complainants to be truthful and reliable and he rejected the denials made by the appellant to the police.
Grounds of appeal against conviction
Ground 1
The first ground of appeal asserts that no evidence of the appellant’s good character was adduced during the trial and that this omission resulted in a material irregularity in the conduct of the trial and a miscarriage of justice.
An affidavit sworn by counsel at the trial was tendered on the hearing of the appeal. The relevant paragraphs of the affidavit are as follows:
4.I did not call evidence on character as part of the Applicant’s case.
5.I did not discuss with the defendant his right to call character evidence.
6.I did not believe that it would assist his case as the Applicant had decided not to give sworn evidence. I did not specifically turn my mind to the issue whether such evidence would support the Applicant’s general credibility or the assertions made by him in his record of interview.
In TKWJ v The Queen,[1] it was argued that the appellant’s convictions on charges of sexual offences resulted from a miscarriage of justice and that the trial was unfair. It was claimed that the appellant had been unfairly denied the benefit of his good character by reason of the fact that evidence of such character had not been called at the trial. The High Court held that counsel’s decision not to call character evidence was a tactical decision which did not make the trial unfair.
[1] (2002) 212 CLR 124.
In his judgment, McHugh J discussed the circumstances in which the conduct of counsel can result in a miscarriage of justice. His Honour said:[2]
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, “whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue”. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel’s conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, “it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence”. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel’s conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice. In R v Birks the New South Wales Court of Criminal Appeal held that counsel’s conduct constituted “flagrant incompetence” and had brought about a miscarriage of justice. His conduct included failing to cross-examine the complainant on a material matter in accordance with his instructions and failing to take steps to minimise the damage flowing from that failure. As a result, the Crown cross-examined the accused to suggest that his evidence was inconsistent with his instructions to his counsel.
But as R v Ignjatic shows, an accused will find it difficult to establish a miscarriage of justice when the alleged errors of counsel concerned forensic choices upon which competent counsel could have differing views as to their suitability. In Ignjatic, the accused alleged that counsel appearing for him at trial was incompetent in five respects. They were: failing to have him psychiatrically examined before the trial, failing to seek an order for separate trials, failing to object to the admission of his record of interview, calling him to give sworn evidence and failing to call his wife as a witness. Hunt CJ at CL, giving the leading judgment of the Court of Criminal Appeal of New South Wales, said that appellate intervention for the errors of counsel is not restricted to cases of “flagrant incompetence”. The Court will intervene whenever any error by counsel has led to a miscarriage of justice. His Honour held, however, that neither individually nor in combination had the alleged errors given rise to a miscarriage of justice. In Ignjatic, the appellant's case was not made easier by reason of the defence having been conducted on the advice of senior counsel, experienced in the criminal law, after a “substantial” conference and on instructions from the accused.
It will be even harder for the appellant to succeed where counsel has made the choice because of a perceived “forensic advantage”. In R v Harvey and R v Purton, the appeals failed because counsel had decided not to adduce character evidence because of the possibility that it might lead to the introduction of evidence of the accused’s “bad character”. In Purton, the Court of Criminal Appeal of New South Wales thought that this could be inferred because trial counsel knew that a school friend of the complainant had stated that the accused had also interfered with her.
In England, the Court of Appeal has sometimes sought to prescribe particular tests for the competence of counsel. Those tests have included “flagrant incompetence”, “Wednesbury reasonableness”, and whether the advice given was “within the acceptable exercise of counsel's judgment”. However, ordinarily the Court of Appeal applies the principle that, where counsel’s conduct is called into question, the Court must focus on the impact of the faulty conduct, whatever its label. Accordingly, in England the fact that counsel’s conduct cannot be described as incompetent does not mean that the appellant must fail.
Sometimes the error of counsel may have so plainly affected the result of the trial that a miscarriage of justice will have occurred even though the error involved a forensic choice or judgment and did not constitute “flagrant incompetence”. In Re Knowles, the Full Court of the Supreme Court of Victoria ordered a new trial where counsel failed to call two witnesses because he believed that their evidence was neither relevant nor admissible. On a charge of murdering his de facto wife, the accused claimed that he had accidentally stabbed her when he attempted to take a knife from her after she had become belligerent and abusive while intoxicated. The two witnesses, who had been in relationships with the deceased at earlier times, would have testified that she became aggressive after drinking. I would have thought that counsel's view as to admissibility was arguably right. But the Full Court held that the evidence was admissible and that counsel’s error was a “fundamental error” which had resulted in a miscarriage of justice. Re Knowles must be regarded as authority for the proposition that a miscarriage of justice may occur when counsel makes a legal error as to a fundamental point even if counsel’s view is arguably correct.
Furthermore, where the alleged error of counsel does not concern a forensic choice, the appellant will usually be in a better position to prove that a miscarriage of justice has occurred than in cases of forensic choice. If counsel omits to call a material witness because of a memory lapse or a breakdown in communication and there is a significant possibility that the omission affected the outcome, the appellant will usually establish that a miscarriage of justice has occurred. In R v Scott, the Court of Criminal Appeal of South Australia held that the failure to call two witnesses because of a misunderstanding between counsel and the accused had led to a miscarriage of justice. Doyle CJ said that he “might not have reached this conclusion if this point stood alone”, but the “treatment in the summing up of [another witness’] evidence was all the more damaging because there was no answer to her evidence”.
(Footnotes omitted)
[2] (2002) 212 CLR 124 at [79].

In Nudd v R,[3] Gleeson CJ pointed out that the issue as to whether there has been a miscarriage of justice in a case involving counsel’s conduct will usually be judged according to an objective standard. In the same case Gummow and Hayne JJ said:[4]
As four members of this court explained in TKWJ v R, describing trial counsel’s conduct of a trial as “incompetent” (with or without some emphatic term like “flagrantly”) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Code. “Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.
(Footnotes omitted, emphasis added)
[3] (2006) 225 ALR 161 at [9].
[4] (2006) 225 ALR 161 at [24]; see also R v Bazan [2010] SASCFC 50.
The failure to call character evidence in the present case could not be classified as a fundamental error of the type referred to in the authorities which, without more, results in a miscarriage of justice. On the other hand, although it resulted from a forensic choice by counsel, it appears that there may have been a misunderstanding of the law on the part of counsel as to the use which might be made of such evidence in relation to self-serving statements in a record of interview together with a failure to consider possible relevance to credibility. To this extent the circumstances gave rise to an irregularity and consideration must be given to whether there is a significant possibility that the omission affected the outcome of the trial thus resulting in a miscarriage of justice.
Before addressing that question, it is appropriate to say something about the relevance of evidence of good character in a criminal case.
In Melbourne v The Queen,[5] Kirby J reviewed the development of the law relating to jury directions on the relevance of good character and provided the following summary:
1. In all cases in which there is evidence as to the accused’s good character, a direction must be given by the judge as to the use to which that evidence may be put by the jury. Unless in the particular circumstances of the case doing so is unnecessary, or would be unwarranted for reasons which the judge gives, the directions on good character must relate both to (a) the way in which that evidence may be considered by the jury to make it less likely that the accused committed the offence charged (propensity) and (b) the reliance which the jury may place upon any evidence which the accused may have given in the trial and any other statements made by the accused out of court whether to police or others which come to the attention of the jury during the trial (credibility).
2. No particular form of words is necessary. However, the directions should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt or a conclusion that the accused’s evidence or relevant out-of-court statements are false. The jury are entitled to conclude that a person of established good character may be less likely to commit the crime charged or to make false statements relevant to guilt of that crime.
3. Because of the variety of the circumstances in which the need will arise, the directions must be tailored to meet the particular circumstances of the case. In an appropriate case, the judge will be at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character is not a defence in itself and cannot prevail against evidence of guilt which, notwithstanding the accused’s previous good character, the jury find to be proved. The judge may comment on the good character evidence and any rebutting evidence, in a fair and balanced way, including in relation to its significance or lack of significance in the circumstances of the particular case. Generally, however, such directions and comments should be brief because it can safely be left to the jury to apply their common sense to such matters.
[5] (1999) 198 CLR 1 at [120].
As this is a case in which the appellant did not give evidence but made self-serving statements in a record of interview tendered by the prosecution, it is also appropriate to consider the proper approach to a consideration of such statements. The following comments by Cox J in Spence v Demasi provide helpful guidance:[6]
... The position in the criminal court, 1 think, is clear. It is common for the Crown to tender a record of the accused’s interrogation by the police, and often this will contain a mixture of admissions and self·serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict. They may give different weight to different parts: see R v Higgins (1829) 3 C & P 603; 172 ER 565. The failure of the accused to give evidence may well influence their attitude to the self-serving answers. A modern statement of the practice is found in the judgment of the English Court of Appeal in R v Duncan (1981) 73 Cr App. R 359 at 365:
“It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.”
The Full Court of this State declared the law to substantially the same effect in R v Karpany [1937] SASR 377. It followed precedents extending back to R v Jones (1827) 2 C & P 629; 172 ER 285. Similar decisions in other States, with respect to the criminal jurisdiction, are Sharp v Hotel International Ltd [1969] VR 103 at 109-110; R v Williamson [1972] 2 NSWLR 281, 295; and R v Cox [1986] 2 Qd R 55: see also Jack v Smail (1905) 2 CLR 684 at 695, 707-708. In England the rule, as enunciated in Duncan, wavered, perhaps, in R v Kurshid [1984] Crim L R 288 but was affirmed in R v Hamand (1985) 82 Cr App R 65.
[6] (1988) 48 SASR 536 at 540.
In the joint judgment of the High Court in Mule v R, their Honours said:[7]
It was not a derogation from the appellant’s right to silence for the trial judge to point out that the statements made in the course of the interview were not on oath. The expression “right to silence” is used to refer to a number of distinct legal rules. It is a useful shorthand expression but it is a general description which does not always provide a safe basis for reasoning to a conclusion. In the present case what is important is that the appellant did not give evidence at his trial. In the days when, in most Australian jurisdictions, accused persons were entitled to make unsworn statements in court, it was not regarded as a derogation from their rights for judges to direct juries that what an accused said in these circumstances was to be regarded as “a possible version of the facts” and that jurors should “consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence”. Nor was it regarded as such a derogation for a judge to comment that a statement was not on oath, and was not tested in cross-examination, and might not be considered as weighty as the evidence of witnesses under oath. The trial judge had already, uncontroversially, referred to the fact that the appellant had elected not to give evidence in court. It is difficult to explain the right to silence without drawing attention to the silence. Furthermore, as the judge pointed out, the appellant’s silence was not complete. Having referred to the fact that the appellant did not testify on oath in court, having explained that it was his right to remain silent in court, and having warned the jury against inappropriate reasoning, the judge, when he came to deal with the out of court statements made by or on behalf of the appellant, could well have thought it proper to tell the jurors that it was open to them to evaluate those statements in that light. They could also evaluate those statements in the light of the fact that they were self-serving. As a matter of law, it was correct to tell the members of the jury that they were not obliged to attach the same weight to all the statements made in the interview, and that it was for them to decide the weight to be given to particular statements. As an observation on the facts, in the circumstances of this case, it was not inappropriate to point out that, while the admissions of possession were accepted by both sides at the trial to be true, the assertions about purpose were in dispute, that they were not supported by any sworn testimony and that they were self-serving. It would also not have been inappropriate to point out that the jury might think them to be of less weight than the admissions.
(Footnotes omitted)
[7] (2005) 221 ALR 85 at [22].
In my view, if evidence of good character had been given in the present case it would have been appropriate for the magistrate to consider it in relation to the issues of propensity and credibility in the manner referred to in Melbourne. I return then to the test identified in TKWJ, namely, whether it has been established that there is a significant possibility that the omission to call the evidence affected the outcome of the trial. In doing so it is necessary to consider the character evidence which might have been called in the context of the evidence as a whole.
The appellant was 43 years of age at the time of the alleged offences. He migrated to Australia approximately six and a half years ago and had been employed at the massage shop for two weeks. He has no previous convictions.
Statements from three witnesses were tendered on appeal on the basis that they represented character evidence which could have been called at the trial.
Mrs Molly Kemp stated that she was a neighbour of the appellant and his wife and daughter from 2007 until 2011 when she moved into a retirement village. She said the appellant and his wife brought gifts of food when they came to visit her and she became friends with them. They also provided food for two large functions organized by Mrs Kemp’s daughter. Mrs Kemp said in her statement that the appellant had been involved in voluntary community work and that the alleged offence seems to be out of character.
Ms Tianran Liu stated that the appellant and his family joined the church which she attended. She said the appellant is a very quiet person with good manners. He assisted in serving meals and cleaning up at the church. She said in her view the appellant is unlikely to be involved in this sort of offending.
Mr Shunqiang Xu is also a member of the church attended by Ms Liu. He said that the appellant has reduced the time he spends at the church since becoming busy at work. He said the appellant assists with catering work at the church. He said the appellant is a quiet person with good manners who was always kind to people. He is also of the view that it is unlikely the appellant would be involved in offending of this nature.
It must be acknowledged that this was a strong prosecution case. Two young women who did not know each other complained on successive days that the appellant had acted in an indecent manner towards them while they were being massaged. The similarities in the two cases include allegations of comments by the appellant that the complainant was beautiful and, according to the evidence, each was asked if she was married. The circumstances of the alleged incidents followed a broadly similar pattern. The magistrate formed the firm view that each complainant was truthful and reliable.
The potential character witnesses had known the appellant for only a short period of time. The social occasions on which they met him were limited and unlikely from their nature to have thrown any light on the likelihood or otherwise of the appellant engaging in sexual conduct of the type with which he was charged.
As for the potential effect of the evidence in relation to the answers given to the police, it was open to the magistrate to take into account the fact that these statements were not made on oath and so not tested by cross-examination. He was entitled to conclude that the version provided to the police by the appellant was not as weighty as the evidence given on oath by the complainants. In his reasons for decision, he correctly summarised the law on the approach to such statements. In my view the additional knowledge that the appellant had no previous convictions and had created a favourable impression on the potential character witnesses in the manner and circumstances described in their statements would not have affected the outcome of the trial.
After considering the possible effect of the potential character evidence in relation to both credibility and propensity, I am not satisfied that there is a significant possibility that the failure to call the evidence affected the result of the trial.
Grounds 2 and 3
The second and third grounds of appeal relate to the appellant’s references in the course of the police interview to a CCTV system which had been installed at the massage shop and the magistrate’s assessment of that evidence. The defence sought to make use of this evidence at the trial by arguing that the appellant would not have engaged in any sexual conduct if he was aware that it might be captured on CCTV. The appellant referred to the CCTV on several occasions during the interview. He told the police that he was advised by his boss that the CCTV was running 24 hours in the event that a customer complained or that someone stole money. He said his boss told him about the CCTV and said “don’t make trouble for money and also don’t make trouble for our customers”. On other occasions during the interview the appellant, when he denied allegations put to him, added that the police could check the CCTV.
When asked by the police about the incident involving RP, the appellant said that his boss left at about 5:58pm after asking him to do the massage. According to the appellant, he asked his boss what he should do if the customer made a complaint. He said the boss replied that there was CCTV.
Mr Wang, the owner of the massage shop, gave evidence. He said he was the owner of seven similar shops in Adelaide. He has been operating them since December 2005. According to his evidence, he installed a CCTV system in the Marion shop about two years after setting up the business. He said it could be used to watch the counter in the shop. The system was installed because of the larceny of some money from one of the other shops. He said the camera did not cover any of the massage tables.
In further evidence, Mr Wang said that he did not know whether the camera was actually working in the Marion shop. He said that it was more to have a camera on the wall so that “my staff will behave a bit”. He said he did not brief any of the staff about the camera which was installed.
Towards the conclusion of his cross-examination the witness gave the following evidence:
QAs far as you knew the camera was working and was recording.
AYes.
QAnd it wasn’t until after the police took some material from it that you discovered that it wasn’t working.
ASo far I don’t even know if it’s working or not at that time.
QBut up until the police took it you thought it was working.
AYeah.
Mr Yu, the appellant’s immediate supervisor, was called by the prosecution. He said he had worked as a supervisor at the Marion shop for six months prior to the alleged offences. He interviewed the appellant for a position at the shop. He said he gave the appellant advice about protecting himself when giving a massage and he referred to the parts of the body which were to be avoided during the procedure.
Mr Yu said that he did not know whether the CCTV was working around this time. He said that if the curtain was drawn around the cubicle which contains the table on which RP was massaged the camera would not film the table, but that if the curtain was not drawn the table would be caught by the camera. He said the curtain was open when the appellant commenced massaging RP.
The witness was further cross-examined about the CCTV:
Q… At any stage did [the appellant] say to you, any stage during employment, if a customer makes a complaint or something, what shall I do.
ANo.
QDid you say to him ‘Don’t worry, there’s CCTV’.
ANo.
It was an agreed fact that police had access to the hard drive of the CCTV but, upon examination, there were no video files on it.
The magistrate dealt with the evidence relating to the CCTV in the following passage in his judgment:
The defendant repeated on a number of occasions his desire for police to check the CCTV. I accept the evidence of Mr Yu when he denied that the defendant asked what he could do if a customer complained and that he told Mr Zhang not to worry because there was CCTV. This contradicts a statement made by the defendant that, when Mr Yu left him alone in the shop to finish massaging [RP], he asked Mr Yu what he should do if the customer complained and Mr Yu said there was CCTV. This constitutes evidence that the defendant falsely constructed his asserted belief in the power of the CCTV to exonerate him, which adversely impacts upon his credibility generally, when assessing the weight to be given to the exculpatory statements in his interview.
The CCTV equipment was not operational and for a long time no person associated with the management of the business ever took any step to operate it. It would not have been hard for the defendant to ascertain this for himself. I reject the suggestion, implicit in the defendant’s exhortations to the police to obtain and view the CCTV, that he believed his actions would have been recorded (whether or not they were improper).
Criticism was made of the finding that there was evidence of a false assertion by the appellant as to his belief that the CCTV would exonerate him. The magistrate relied upon the fact that in the interview the appellant said he asked Mr Yu what would happen if the customer made a complaint and Mr Yu said that there was CCTV. Mr Yu denied that such a conversation took place at any time. The witness was not challenged on that assertion and it was open to the magistrate to accept the evidence as accurate. It was suggested on appeal that the witness might have forgotten the conversation but that was not put to him.
It should also be pointed out that the appellant claimed in the interview that Mr Yu told him that the CCTV was operative for 24 hours but that was not put to Mr Yu.
This left the Court with bare assertions in an interview that the appellant thought his actions were being recorded together with details of a conversation to support the assertions which was denied on oath by Mr Yu. In my view, it was open to the magistrate to infer that there was evidence of a false claim by the appellant as to his state of mind in relation to the CCTV.

There is a complaint in the appellant’s written submissions concerning the magistrate’s statement[8] that the effect of Mr Wang’s evidence was that “the camera was disused”. It is claimed that the comment is inaccurate. However, it must be read in conjunction with the explanation which follows immediately thereafter:
... At the outset he had been shown how to use it but then had never bothered with it. At the time of the alleged offences [he] had no idea whether it worked or not and said he did not really care.
The comment that the camera was “disused” must be understood in this context.
[8] Reasons at [51].
It is true that the magistrate went on to observe that the CCTV equipment was not operational for some time and it would not have been hard for the appellant to ascertain this for himself. The reference to ascertainment is a speculative observation but it does not detract from the conclusion by the magistrate that the appellant attempted to bolster his asserted state of mind by inventing a conversation with his superior.
In my view, the magistrate did not fall into error when dealing with the issues raised in grounds 2 and 3.
Ground 4
The fourth ground of appeal asserts that the magistrate erred in giving no weight to the exculpatory statements of the appellant in his record of interview.
The magistrate summarised the appellant’s version in the record of interview in considerable detail. In his assessment of the prosecution evidence and the appellant’s statements in the interview, he said that he regarded the evidence of each of the complainants as compelling and that neither was moved by cross-examination. He pointed out that their accounts were not contradicted by evidence on oath. He stated that, when assessing the appellant’s statements during his interview he bore in mind that he was being interviewed through an interpreter. He noted that the appellant denied any impropriety in conducting the massages. Reference has already been made to the magistrate’s comments on the CCTV. He continued:
On several occasions the defendant denied having a certain interest in the complainants, plainly meaning a sexual interest. I found these denials to lack persuasive force.
In the face of the compelling evidence of each of the complainants I give no weight to the exculpatory statements of the defendant and, where the evidence of [TB] and [RP] is inconsistent with his assertions, I accept their evidence and I reject the assertions of the defendant.
The magistrate directed himself in accordance with the approach taken in Spence v Demasi and Mule discussed above. However, it was argued that it is difficult to understand what the magistrate meant by “lack persuasive force”. This comment was made towards the end of a comprehensive judgment in which the magistrate made various assessments of the evidence. It is unnecessary to repeat those assessments, but the impugned comment is, in my view, a conclusion based on the whole of the evidence in the prosecution case and the response of the appellant as set out in the record of interview. In making this assessment and with particular relevance to the self-serving statements, the magistrate was entitled to take them into account as a possible version of the facts whilst at the same time having regard to the fact that the statements were not on oath and not contested in cross-examination. The magistrate was entitled to give them such weight as he considered appropriate and it was against this background that he concluded that they lacked persuasive force.
Furthermore, I reject the criticism of the comment by the magistrate that, in the face of the compelling evidence of the complainants, he gave no weight to the exculpatory statements. It was argued that he should have given the exculpatory statements some weight and then evaluated whether they cast doubt on the credibility of the complainants.
There is no doubt that the magistrate gave consideration to the exculpatory statements. However, he was not bound to give them weight. The High Court pointed out in the passage quoted above from Mule that the proper approach was to give the out of court statements such weight as they were entitled to in comparison with the facts clearly established by the evidence. This was the process followed by the magistrate.
In my view, no error has been disclosed in relation to the issues raised in this ground.
I dismiss the appeal against conviction.
Appeal against sentence
The appellant was sentenced to a single sentence of imprisonment for five months on all counts pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The sole ground of appeal against sentence is that the magistrate erred in failing to exercise his discretion to suspend the term of imprisonment.
In his sentencing remarks, the magistrate referred to the personal circumstances of the appellant. He recorded that the appellant has a wife and 14‑year-old daughter and that he has no previous convictions. He also referred to the positive evidence of good character which was called during the sentencing phase.
Reference was then made to the nature of the offences. It was not in dispute on the hearing of the appeal that they were serious offences. They were committed on separate occasions on consecutive days. It is apparent from the victim impact statements that the offences had a significant effect on the young women on whom they were perpetrated. The conduct was in breach of the trust placed in the appellant to act with propriety in a therapeutic situation.
The magistrate referred to all matters which might be regarded as relevant to the exercise of the discretion to suspend the sentence and, in my view, the remarks on sentencing do not reveal any error of sentencing principle. The decision not to suspend the sentence was clearly within the proper exercise of the discretion. Furthermore, I regard it as inappropriate to accede to the argument that the sentence should now be suspended simply by reason of the further fact that one month of the sentence has been served prior to release on bail pending appeal. On the other hand, I regard it as appropriate to make an order that the period already served be taken into account in the computation of the remainder to be served.
The appeal against sentence is dismissed.