DISTRICT COURT OF QUEENSLAND

CITATION:	The Queen v Wu [2022] QDC 188	
PARTIES:	The Queen
v
Feifei Wu
(Defendant)	
FILE NO:	2344/21	
DIVISION:	Criminal	
PROCEEDING:	Judge alone trial	
ORIGINATING COURT:
	Brisbane District Court		
DELIVERED ON:	25 August 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	27, 28, 29 July 2022 and 1 August 2022	
JUDGE:	Byrne QC DCJ	
ORDERS:	My verdicts are as follows:
     Count 1: Not guilty
     Count 2: Not guilty	
CATCHWORDS:	CRIMINAL LAW – PROCEDURE- TRIAL HAD BEFORE JUDGE WITHOUT JURY – SEXUAL OFFENCES - VERDICT – where the defendant was changed with one count of indecent assault and one count of rape – where the issue of the trial was the identification of the offender - where the complainant had difficulties identifying the offender – where the offence took place inside a massage parlour - whether the defendant was the offender – whether the elements of each offence are satisfied – whether the defendant is guilty or not guilty of each offence	
CASES:	R v Collins [2018] 1 Qd R 364
R v Doyle [2018] QCA 303
R v Summers [1990] 1 Qd R 92	

COUNSEL:	
Mr. R. Reid for the prosecution.
Mr. M. Woodford for the defendant.	
SOLICITORS:	Office of the Director of Public Prosecutions for the prosecution.
AE & Associates for the defendant.
	
Introduction
[1]	This is a trial by judge alone. The application for the trial to be conducted in this manner was granted on 9 February 2022.
[2]	The defendant pleaded not guilty before me to two charges, in the following terms: 
COUNT 1	That on the eleventh day of October 2020 at Fortitude Valley in the State of Queensland, Feifei Wu unlawfully and indecently assaulted JA.
COUNT 2:	That on the eleventh day of October 2020 at Fortitude Valley in the State of Queensland, Feifei Wu raped JA.
[3]	My role is to determine whether he is guilty or not guilty of either or both charges. He is presumed to be innocent, and will remain so unless and until I am satisfied of his guilt beyond reasonable doubt, the burden of proof of which lies on the prosecution at all times. There is no burden on the defendant to prove anything in this trial.
[4]	In order to succeed on the prosecution, the prosecution must prove beyond reasonable doubt each of the following elements:
(a)	On count 1: 
i.	That the complainant was assaulted; 
ii.	That the assault was committed by the defendant; 
iii.	That the assault was indecent; and 
iv.	That the assault was unlawful.
(b)	On count 2:
i.	That the complainant’s vulva or vagina was penetrated to any extent; 
ii.	That it was the defendant who effected that penetration; 
iii.	That the penetration was effected with a thing or part of the defendant’s body that is not his penis; and 
iv.	That the penetration occurred without the complainant’s consent.
[5]	The issue in the trial, based on the parties’ cases, is that of identification of the offender, although I must of course be satisfied of all elements of the offence before I may convict on it.
[6]	For the reasons which follow I am not satisfied beyond reasonable doubt of the guilt of the defendant on either charge.
Elements of Offences
[7]	An assault, in the circumstances of this matter is the application touching of or application of force to the complainant, without her consent. It will have occurred without consent if the complainant has not given consent to the touching. There is no need in the circumstances of this trial to consider issues of an honest and reasonable but mistaken belief as to the giving of consent.
[8]	An assault is indecent if, in all of the circumstances as I find them to be, the touching was contrary to currently accepted standards of decency. Further, in the circumstances of this matter, the touching will only be indecent if I am satisfied that there was a sexual connotation to the touching, that is that it was done for the purposes of sexual gratification on the part of the person doing the touching.
[9]	In terms of the rape charge, penetration of the complainant’s vulva or vagina by the defendant’s finger or fingers to any degree is sufficient. It need not be proven that the penetration occurred over any particular period of time, nor that it caused any physical injury.
[10]	Similarly, the penetration will have occurred without consent if the complainant has not given consent to it. There is no need in the circumstances of this trial to consider issues of an honest and reasonable but mistaken belief as to the giving of consent.
Principles of law
Onus and standard of proof 
[11]	As noted earlier, the defendant is presumed to be innocent, and will remain so unless and until I am satisfied of his guilt beyond reasonable doubt on each count, the burden of proof of which lies on the prosecution at all times. There is no burden on the defendant in this trial to prove anything.
Impartiality 
[12]	In arriving at my verdicts I must act impartially and dispassionately; relying only on the evidence received at the trial; acting without prejudice or sympathy to the defendant, the complainant or anyone else; not letting emotion sway my judgment; and putting aside anything else I might have heard about the matter beforehand.  
Verdicts based on evidence
[13]	My verdicts must be based on the evidence I accept, taking into account the directions and warnings that I must follow and heed.
Evidence 
[14]	The issues must be resolved on all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which I consider might have been raised by the evidence, or which conceivably arise about the facts.
[15]	The evidence which I accept and that which I reject may be based on many things, including what a witness had to say; the manner in which the witness said it; the general impression which he or she made when giving evidence; and my assessment of the other evidence, including that given by the other witnesses and the various other documents and material in evidence.
[16]	In the case of conflicts in the evidence it is for me to decide whether they are important to resolve, or unnecessary, given the views which I reach about other parts of the evidence, when I assess the evidence and the cases which the parties have advanced.
[17]	The honesty, accuracy and reliability of the evidence must be assessed using common sense and experience, and in light of the whole of the evidence adduced at the trial.  I do however recognise that there are particular limitations on what can be concluded from a visual impression of the witness, and their demeanour in the witness box alone.
[18]	There is a difference between honesty and reliability. A person might honestly believe what he or she said about what he or she heard or saw, and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw.  This might become apparent, when other objective evidence is considered.  
[19]	It is a matter for me to decide whether or not I accept the evidence given by any witness. If I conclude that particular evidence is not truthful or reliable, I will not take it into account in determining whether the prosecution has established guilt.  
[20]	The ultimate decision as to what evidence I accept and what I reject is mine. In arriving at my conclusions I may also take into account relevant parts of other evidence, including that of other witnesses and the facts which are not in dispute, in deciding whether to accept or reject a particular witness’ evidence, or a particular part of their evidence, or in deciding how persuasive I find evidence to be that I consider to be truthful and reliable. 
[21]	I am also not obliged to accept the whole of the evidence of a witness. I may accept some parts of a witness’ evidence and reject other parts, if I find some part of that evidence to be unreliable. Or I might not accept part of a witness’ evidence, because I consider that the witness had some motive to conceal, or to embellish the evidence which he or she gave, or to distort the truth. 
[22]	The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness’ evidence. I may accept the remainder of that witness’ evidence if I think it is worthy of acceptance.
Inferences 
[23]	Before drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find established by the evidence. I must examine the evidence with care, and I must consider whether it is reliable, before drawing any conclusions from facts which I find established. This requires a process of reasoning undertaken with care and logic, avoiding speculation or conjecture to fill in any gaps in the evidence, but it is up to me to decide whether I accept particular evidence and if I do, what weight, or significance, it should have.
Circumstantial Evidence
[24]	Both direct and circumstantial evidence are to be considered in this trial. It is not necessary that facts in dispute be proved by direct evidence. They may be proved by circumstantial evidence alone, by direct evidence alone, or by a combination of direct and circumstantial: that is, both direct and circumstantial evidence are acceptable proof of facts. 
[25]	To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. Importantly, if there is an inference reasonably open which is adverse to the defendant and an inference open in his favour, I may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in my mind.
[26]	If there is any reasonable possibility consistent with innocence, it is my duty to find the defendant not guilty.  This follows from the requirement that guilt must be established beyond reasonable doubt.
	Identification evidence
[27]	The issue of identification is one for me to decide as a question of fact.
[28]	The case against the defendant depends to a significant degree on the acceptance of a circumstantial body of evidence concerning identification. To some degree, the acceptance of that case depends on the correctness of some visual identification of the defendant, which the defendant alleges to be mistaken. 
[29]	I must be alert to the special need for caution before convicting in reliance on the correctness of that identification. It is quite possible for an honest witness to make a mistaken identification, and notorious miscarriages of justice have sometimes occurred in such situations. A mistaken witness may be convincing, and even a number of apparently convincing witnesses may all be mistaken. 
[30]	I must examine carefully the circumstances in which the identification by the witness was made. How long did the witness have the person, said to be the defendant, under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the defendant before? If so, how often? If only occasionally, had the witness any special reason for remembering the defendant? Was there any material discrepancy between the description given to the police by the witness when first seen and the evidence the witness has now given?
[31]	The evidence of each individual witness, while important in itself, must not be regarded in isolation from the other evidence adduced at the trial. Other evidence tending to implicate the defendant may be highly relevant, and may justify a conviction, while the evidence of identification, if it stood alone, would be insufficient.
[32]	Where evidence is given by a stranger to the defendant or a casual acquaintance, I should treat the evidence of identification with care. I should be cautious about concluding that identification has been established in such a case, and scrupulous to be satisfied first that the identifying witness is not only honest in his or her evidence, but also accurate.
Separate Consideration of Charges
[33]	Two separate charges are preferred. I will return separate verdicts for each charge and I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved its case on any or all of the preferred charges. 
[34]	As the evidence in relation to the separate charges is different and the elements of the offences are different, my verdicts need not be the same.
Markuleski direction
[35]	My general assessment of the complainant as a witness will be relevant to each count, but I must consider her evidence relating to each count separately 
[36]	However, if it were the case that I had a reasonable doubt about the commission of one of the charged offences, it does not mean that I necessarily must acquit in respect of the other offence. In that event, I would have to consider why I have a doubt about the charge and ask whether that causes me to have a doubt about the complainant’s account relating to the other charge. 
Preliminary complaint
[37]	In this case, there is evidence of the complainant’s preliminary complaints, that is of her complaints about the charged conduct prior to her first formal statement to police, to her mother LKA, her friend BH, her brother AA and a police officer Lisa Armitt.
[38]	I cannot regard the things said in those out-of-court statements by the complainant as proof of what actually happened. What was said on the prior occasion may, depending on the view I take of it, either bolster her credit and reliability because of consistency or detract from her credit and reliability because of inconsistency, but it does not independently prove anything. Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for my determination.
Distressed Condition
[39]	Evidence has been received of the distressed condition of the complainant as observed by her mother almost immediately upon leaving the subject premises. The prosecution relies on this evidence in support of the complainant’s account. 
[40]	In deciding her mother’s observations as to distressed condition have weight and do support her account, I must consider whether the distressed condition was genuine or feigned? Was there any other reasonably possible explanation for the distressed condition at the time? 
[41]	If I find that the distress was genuine and was related to the commission of either or both of the offences she asserts occurred, I may use it as evidence that supports the complainant’s account, but only in so far as that evidence comes from people other than her.
	Remotely received evidence
[42]	One witness in the trial initially testified via audio-visual link and then by phone when the link was determined to be unsuitable, namely Allison Lloyd, while Pascale Clayton and Lisa Armitt testified by telephone only. Ms Lloyd was called as an expert witness and so receiving her evidence from a place remote from the courtroom is the usual position mandated by legislation. The other witnesses’ testimony was revied on that manner without objection from the defendant.
[43]	 In respect of receiving evidence in those manners, I direct myself that:
(a)	it is a routine practice of the Court and I must not draw any inference as to the defendant’s guilt from it; and
(b)	the probative value of the evidence is not increased or decreased because of it; and
(c)	the evidence is not to be given any greater or lesser weight because of it.
Right to silence 
[44]	The defendant has a right to silence. He elected to not testify before me or to call evidence on his behalf, as is his undoubted right. He is not bound to give or to call evidence. He is entitled to insist that the prosecution prove the case against him, if it can.  
[45]	The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the prosecution.  It proves nothing at all, and I do not assume that because he did not give evidence that adds in some way to the case against him. It cannot be considered at all when deciding whether the prosecution has proved its case beyond a reasonable doubt, and does not make the task confronting the prosecution any easier. It cannot change the fact that the prosecution retains the responsibility to prove guilt of the defendant beyond reasonable doubt. 
[46]	In this trial there is an account given by the defendant to police in evidence. I must have regard to that account, but in deciding what weight should be attributed to it, I am entitled to recognise that it was not given on oath or in the solemnity of Court proceedings and that it has not been tested by XXN. I must also consider it in light of all of the other evidence which I accept and consider whether it is plausible or otherwise reasonably possible as being a true and accurate account. 
[47]	My task is not a question of making a choice between the evidence of the prosecution’s principal witness or witnesses, and the defendant’s account to police.  The proper approach is to understand that the prosecution case depends upon my acceptance that the evidence of the prosecution’s principal witnesses was true and accurate beyond reasonable doubt, despite the defendant’s account.   
[48]	Where, as here, there is an account from the defendant in evidence, usually one of three possible outcomes will arise:
a)	I might think that the defendant’s account is credible and reliable in essential respects, and that it provides a satisfying answer to the prosecution’s case.  In that case my verdict would be not guilty; or
b)	I might think that, although the defendant’s account was not convincing, it has left me in a state of reasonable doubt as to what the true position was.  In that case my verdict would be not guilty; or 
c)	I might think that the defendant’s account should not be accepted in essential respects.  If that were the case, I must set it to one side and go back to the evidence I do accept and ask whether, on that evidence, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.
[49]	During the course of the interview a number of questions were asked by the police officers of the defendant.  The same reasoning applies here as in relation to questions by counsel of a witness.  If the defendant did not agree to or in some way accept the contents of a question asked of him, the question is not evidence against him.
[50]	In the course of the interview, the defendant had the benefit of an independent interpreter, and for part of the interview his solicitor undertook that role. I apply the same principles to that piece of evidence concerning the use of an interpreter as I have outlined below.
Interpreters
[51]	In this trial, the defendant was assisted by the provision of an interpreter, who provided verbatim and simultaneous interpretation and translation of the proceedings to him.
[52]	Additionally, five witnesses were assisted by the use of an interpreter or translator, namely Qiurong (“Hebe”) He, Jianfang (“Jenny”) Zhang, Yang (“Angela”) Chen, Yuqiao (“Thomas”) Tian and Hanlin (“Peter”) Chen. Each were interpreting and translating the English and Mandarin languages. 
[53]	Although these witnesses each professed some, and varying degrees of, ability in speaking and understanding the English language, the interpreters were employed for the whole of their evidence so there would be no room for mistake, nor limitation in the ability of the witness to express himself or herself.
[54]	I do not profess to have any understanding at all of the Mandarin language (orally or written) and so I necessarily based my understanding of their evidence on the interpretation provided into English.
[55]	I make no assumptions about a witness or the defendant making use of an interpreter or translator based solely on that use to assist them, and the Court. I treat the evidence in the same way as though it was provided directly from the mouth of the witness.  
The parties’ cases 
[56]	In arriving at my conclusions, I must give careful attention to all of the evidence, not only that on which the parties have focused, and any cases which they have each advanced by the submissions. While I should pay particular attention to the evidence touching on the matters in issue, I must also have regard to the evidence as a whole. If I consider that there is a proper view of the evidence which neither party advanced, I am entitled to act on that view of the evidence.
Factual allegations
[57]	What follows is a summary of each witness’ account, rather than a detailed analysis of it. 
The uncontentious facts
[58]	Sunday 11 October 2020 was the complainant’s 23rd birthday. That day she and her mother, LKA, went to the beach at Bribie Island and afterwards drove to Brisbane to attend a pre-booked two-hour appointment from 2.00pm for a massage at “Hydra-Time Spa” in Doggett Street, Fortitude Valley. LKA parked her car close to the business, and in Doggett Street. Although both she and the complainant believed they were running a little late for the appointment, a receipt from the parking meter indicates it was issued at 1.44pm.
[59]	At relevant times there were 5 people working in the massage business. Using their Anglicised names, they were Angela, Jenny, Betty, Peter and the defendant, Flynn. Only the last two were male, and the defendant was the only male whose duties involved giving massages.
[60]	The business used a computer-based system to record the bookings and attendances. More will be observed about the accuracy of what it recorded later in these reasons. A screen shot of this booking system from 11 October 2020 was tendered and became Exhibit 12. The system records the bookings under the respective massage therapists’ names. Those recorded as working on 11 October 2020 were Angela, Jenny, Kim and Betty. In fact, Kim was not working at the business at that time. Her name appeared on the screenshot because, by the time the screenshot was obtained on 18 November 2020, Flynn had ceased working there and was replaced by Kim. The change of name of the therapist applied to all entries in that column, not just from when Kim started working. Flynn’s name would have appeared on that column at the time.
[61]	At the time, businesses were also required to keep a Covid-19 register of persons entering the business. It operated on the basis that the customer would enter their own details.
[62]	The booking system records a couple-booking under the name of Lisa, with a phone number recorded that accords with LKA’s number, starting at 2.15pm and finishing at 4.15pm. The Covid-19 register recorded the complainant and her mother signing in at 2.00pm and leaving at 4.00pm.
[63]	Among many other entries in the screenshot, it records a couple booking for 2 hours from about 11.30am. There is no name or phone number on that entry, but the Covid-19 register shows that Lisa Clayton signed in at 11.20am. The trial was conducted on the basis that was a booking for Ms Clayton and her mother, Pascale. 
[64]	It also records a couple booking for 2 hours from midday in the name of “Kawsidy”, a single booking for a remedial massage from 12.30pm to 2.00pm, two deep tissue massages for half an hour each from 1.30pm, a couple booking from about 2.15pm to 4.00pm in the name of Scott, a couple booking from 4.00pm for a time period extending past 5.30pm in the name of Blake and a single booking for a remedial massage in the name of Philip between 3.30pm and 5.00pm.
[65]	The women were met at reception by a male, Peter. They waited some minutes, perhaps 10 or 15, in a waiting area and were then shown to the shower so they could wash the sand off them before their respective massages. LKA showered first and was shown to her single occupancy massage room, while the complainant showered.
[66]	The complainant had never previously had a full body massage, and was unfamiliar with what to expect.
[67]	The layout of the business is of some significance, but can be briefly described. At one end is the reception, adjacent to which is a waiting area. Moving away from the reception, one moves down a hallway. On the left are four massage rooms. Jenny provided a mud map that identified them as rooms 1 to 4, with room 4 being furthest from the reception, and across the hallway from the shower. It was the only double massage room on that side of the hallway. The other three rooms were single occupancy massage rooms. Although not all witnesses referred to them in these terms, it is convenient to refer to the rooms by that numbering. Each of these rooms contained a massage table or tables, as appropriate, and amongst other things a deep tub bath. Each of these rooms had sliding doors that could be closed to afford privacy.
[68]	On the right side, there were either one or two massage rooms closest to the reception, including a double massage room. Although the precise number of massage rooms on this side of the hallway is unclear to me, it is of no moment. It seems that there were curtains to provide privacy in that room or those rooms. Then proceeding further down the hallway, there were cupboards, a toilet and a staff room. The shower room was furthest from the reception on the right-hand side.
	JA
[69]	JA is the complainant. On entering the business, she and her mother were met by a male receptionist. He was of Asian appearance, tall, of thin build, wore glasses and a white shirt and had acne on his cheeks. She and her mother waited on the couch in the waiting area for about 10 to 15 minutes before they were told their rooms were ready.
[70]	Her mother showered first and the complainant did not see much of her after that.  Afterwards somebody, perhaps a lady they had earlier dealt with, told her that the shower was now free.  She was directed down the hallway to the shower and asked for a towel from another Asian lady.  After showering, she dried herself off and went straight into the massage room, she did not put her clothes back on. She knew which room to go into because the man from reception told her.  He also told her that her mother was in the next room having a massage. She prepared a sketch showing that there were five massage rooms on that side of the hallway, but her room was next to the end room on that side of the hallway, and her mother’s one further away. She was told to have a 30-minute bath and that he would knock on the door when the time was up.  She did that.
[71]	The room was dimly lit.  On a scale of one to 10, with 10 being the brightest, it was rated as a two or three.
[72]	When there was a knock on the door and the time was up, she got out of the bath, dried herself off and lay on the massage table.  Initially, she was completely naked, but then got up and put on underwear that she had previously had in her handbag. Her handbag had been in her possession the whole time.  She then lay face down on the massage table and positioned a towel over her back.  
[73]	She was still lying face down, and with her face in the hole in the massage table, when the massage therapist came in and spoke to her about beginning the massage.  It was a male voice with an Asian accent, but she cannot describe it any better.  Immediately prior to the massage therapist entering the room, she heard some “low arguing” happening in the corridor that was not in English.
[74]	The therapist massaged her whilst she was lying on her stomach. While massaging her back, the therapist tucked the towel that was over her back into her underwear.  Later he massaged her thighs. She noticed that there seemed to be particular focus on the inside of the upper thighs near the “crease of my bum cheeks”.
[75]	After some time, the therapist indicated that it was now time to massage her front.  He left the room and she turned over and put the towel over the front of her again.  He returned after a short time, about 20 seconds.  During that time, she heard more arguing in the corridor. She had kept her eyes closed but heard the door lock as he entered.  She then opened her eyes but only very briefly and then closed them again. The therapist came over to the massage table and put a pillow under her head and a cloth or perhaps towel over her face.  She did not see his face.
[76]	He started massaging her shoulders and neck.  He then moved his hands to massage her collarbones and gradually placed his hands under the towel and started massaging her breasts and nipples.  He was using a circular motion over and over and had his fingers separated so that they were brushing on and off her nipples. At one point he said words to the effect of “close your eyes and relax”.  She believed it was the same voice from when she was massaged lying face down. The massage on her breasts lasted for “probably about 15 minutes”.
[77]	He then moved the towel in such a way that her entire legs and part of her stomach was exposed.  He raised her arms above her head. In so doing, she inadvertently brushed her hand across the front of his pants and could feel what she believed was his erect penis. He started massaging her thighs again, except this time he was moving further into her vaginal area, and he kept touching her vagina.  She assumed it was accidental and thought that by opening her legs it would prevent him from grazing that part of her body.  However, “by doing that, it just got worse from there”.  At about that time he asked if it was “all good”.  She thought he was referring to the amount of pressure used, and said it was.
[78]	He continued, and the circular motions started to go underneath her underpants towards her vagina. He had oil on his hands and she could feel his fingers were slipping underneath the underwear and one of his hands was inside her “vagina flaps”. She believed she could feel three fingers. These fingers grazed over her vulva and clitoris and she could feel pressure with one of the fingers feeling as though he was trying to find entry to the vaginal passage. She does not know which hand he had used. She felt that it took about three minutes. It was at that stage that she closed her legs and he removed his hands.  
[79]	She did not consent to the massaging of her breasts, nor to the touching of her vagina in the manner described.
[80]	He then started massaging her calves and each of her feet, and then moved so that he could give her head a massage. Whilst he was doing that, she could feel his erect penis pushing against the pillow that her head was on.
[81]	At the end she thinks he asked if she enjoyed it and she simply said “yeah”. He then left the room.  She looked quickly towards the door and saw the back of him walking out. She remembered that he had short, black hair, his shirt was not tucked in. He wasn’t fat, but he wasn’t thin. 
[82]	After he left, she felt herself to see if there was oil on her vagina, which there was. There was oil in her “vagina flaps”. She then put her clothes on and left the room.  
[83]	As she walked towards the shower room, assuming her mother was there, she saw someone in a room getting a massage. The Asian lady in that room shut the door so she could not see in. She found her mother in a room near the shower room, where there was a sink and towels, washing her hands.  She and her mother then went to the reception where the man at reception asked whether she had a good massage. She wondered whether he knew something, but she did not say anything and just said “yes”. 
[84]	They left and went straight to the car.  She recalled asking her mother if she (her mother) had accidentally bought a “happy ending massage”.  She was abruptly told, “no” and she then said “well, I think I just got sexually assaulted”.  She gave some detail at that time and there was more discussion on the way home.
[85]	When they got home, she had a shower because she felt dirty. Her mother kept insisting that something had to be done about it.  They then decided it would be a good idea to put the underwear to one side until they knew what to do.  Her mother went downstairs and spoke to the police. As a result, they put the underwear in a bag.
[86]	She gave a formal statement to police on 8 November 2020, having earlier spoken to them on 23 October 2020.  Prior to the formal statement she told her brother AA and his partner at the time as well as her best friend at the time, BH about what had happened.
[87]	She thought she told BH the day after it happened, but was not sure.  She said she told BH that she had been sexually assaulted.  She did not know whether she went into a lot of detail.
[88]	She told her brother AA the next week when they were alone at work.  She told him essentially the same as she told BH, but again did not give any specific details.
[89]	In cross-examination, she denied there had been any discussion at reception about the type of massage they were to receive, other than it being a full body massage. She confirmed that the male at reception was wearing a white shirt. She confirmed that after having had her shower it was the same male who showed her to the massage room and that it was him that spoke to her about the bath. After that he left the room.
[90]	When she lay face down on the massage table, she lowered herself down with her hands on the table.
[91]	She accepted that with the room being dimly lit it was difficult to see things clearly.  When the therapist first came into the room, while she was lying face down, she did not look up to see the person.  She accepted that she was basing her assessment of the therapist being male on the basis of the conversation, limited effectively to a few words spoken by the therapist, that occurred while she was being massaged face down.
[92]	She contended that it was the same person who conducted the massage while lying on her back because it was “the same hands”. When asked about the possibility of a different therapist being involved in the two halves of the massage she replied, “I don’t think that was the case”. She went on to base her assessment on what she believed was the similarity in voice of the therapist during the first and second halves of the massage, as well as the feel of the massage in the two parts of it. She did not recall telling her brother that she wondered if it was two different people.
[93]	She confirmed that she looked at the therapist as he walked out of the room for the final time. She remembered his shirt was untucked. She accepted that she told police on 23 October 2020 that he was wearing a white shirt. It however was not confirmed in cross-examination that he was in fact wearing a white shirt. She could not recall if that was the fact and was not prepared to accept that was the fact because she could not recall. She said “… I was more focused on putting my clothes on and getting out of there than figuring out what he looked like and what he was wearing.” 
[94]	She was not sure what happened to the first towel she had been given from the shower.  She assumed that it was left on the floor of the massage room.  She agreed that she lay naked face down on the massage table initially.  There was some sort of synthetic material on the table.
[95]	She said she did not say anything to the massage therapist about this massage because she could not actually believe it was happening. She just tried to cut it off.
[96]	She agreed that prior to putting her clothing on in the room she reached down under her underwear and felt that there was oil across all of her vaginal area. In so doing her hand came into contact with her underpants. 
[97]	Returning to the possibility that a different person performed the two parts of the massage, she did not think that was the case “because I felt the texture of his hands on my skin, and … he had the same voice each time he spoke to me, the same tone.  I may not have – you know, I may not have known, … I just know that it was the same person.  I don’t know how else to explain that, like, you know – you know when you’re talking to the same person”.  She went on to say that the man at the reception desk had a much younger sounding voice than the man who was massaging her. “I just don’t think that it was the receptionist”.
[98]	When speaking with the receptionist when leaving, she didn’t wonder if he knew something because she recognised the same voice, she just thought it was a strange thing to have said at the time.
[99]	In re-examination she said that not everything that she had told police on 23 October 2020 found its way into her formal statement on 8 November 2020.  That was because she was not going to lie and put it in the statement if she could not really confirm it her own head. She also said that the voice of the male from reception was a much younger sounding voice than that of the person who massaged her.
	LKA
[100]	LKA is the complainant’s mother.  
[101]	When she stepped out of the shower, she saw the complainant at the end of the hallway and the man from reception standing next to her with towels and pointing towards the shower.  At the same time a lady was indicating to her from two doors down to come into that room for the massage, which she did.  
[102]	The lady told her to lie down on the table and cover herself with a towel and she walked out of the room. When she came back in the man from reception came into the room, while she was lying on the table, and said to her that if she was unhappy with the massage, she could ask for somebody else to do it. She did not look at his face and when he left the woman started massaging her. At one point, while LKA was lying face down, the woman left the room and LKA heard loud voices in the corridor.  It sounded like a man and a woman.  She lifted her face up at this stage and the material that was lying in the hole in the massage table fell through onto the floor. When the woman came back into the room she laughed and picked it up.  She then told LKA that she had to roll over.  This was done by the woman holding a towel up, to give privacy, while LKA rolled over. She was then massaged on the front of her body. The massage which she received was a very firm massage.  
[103]	At the conclusion she was told to use the bath, however it was too hot for her and she lasted only about 10 minutes.  She then dressed herself and decided to go to the waiting room to wait for her daughter, as she expected her to be some little time.  However, when she opened the door, her daughter was dressed and standing out there.  They went to the reception and spoke with the man at the counter.  As they were leaving, he asked whether they had enjoyed their massage and they both said “yes”.
[104]	They walked across the street to where the car was parked and she noticed that as they were walking her daughter’s demeanour started to change.  She asked if something was wrong.  Her daughter was “heightened” and said words to the effect “Just get me away from here.  Get me away from here.  Just get me away from here.”   They drove away.  Her daughter was crying and her voice was louder and she was shaking.
[105]	On the way home they had a discussion where her daughter asked whether some things that happened to her were normal including her breasts being massaged and her nipples massaged.  They both became upset.  Her daughter said that her genitals had been touched as well and that when there was an attempt to penetrate into her vagina, she closed her legs.
[106]	When they got home, she rang Policelink. They emailed her a form and she and her daughter looked at it together and a notification was then made online.  Her daughter’s underwear was placed into a plastic bag.  In the course of doing that, it is possible that she may have touched the underwear.
[107]	In cross-examination she conceded it was possible there was a discussion at the reception about the type of massage to be given, but she had no recollection of it.
[108]	Although it seemed odd, she had no recollection of anything being said by the massage therapist when she walked out of the room in the course of the massage.
[109]	She accepted that at the start of the massage she did not see who the person was but maintained that she saw the therapist when she walked back in after having left the room. She believed it was the same massage therapist for the whole of the massage as it felt the same throughout the whole time.  She expressly rejected the proposition that for the first part of the massage she was massaged by a male.
[110]	In re-examination, she said that during the first part of the massage she could see the therapist’s feet and shoes and they looked like a woman’s legs and not a man’s.  It was the same woman who had initially walked into the room who came back when the cloth had fallen onto the ground and remined and performed the rest of the massage.
	Qiurong He (“aka Hebe”)
[111]	Hebe was the part owner of Hydra-Time Spa, along with Angela.  She also performed massage services at the premises.  There were no sexual services offered whatsoever at the premises.
[112]	She was hospitalized on 8 September 2020.  She knew she would be unable to return to work for a number of weeks and so arranged a replacement, the defendant whom she also knew as Flynn.  She had not returned to work by the time of this incident.  He was the only male massage therapist she was aware of working there at the time.
[113]	Other males who worked at the premises, as receptionists, were her son Thomas and Angela’s son Peter.  She gave conflicting evidence as to whether Thomas was working at the premises as at early October 2020.
[114]	Therapists will never touch the breasts of any clients nor their vaginal area.  Therapists also would not cover a client’s face when they were lying on their back.
[115]	Therapists were required to wear black clothing. Flynn was told that. There is no requirement for the receptionist to wear any particular style of clothing.
[116]	On occasions, if there were too many clients waiting to be massaged and not enough therapists to do the work, you would ask a client to have the bath prior to the massage, although usually it would be taken after.
[117]	It sometimes happens that therapists will be substituted part the way through a massage, but the client would normally be asked if they agreed to it.  That is the rule in the shop.  
[118]	Therapists do not have their own particular room and move from room to room as required. After the massage is finished, the therapist will normally tidy up their own room but the receptionist will do it if the therapist already has another client waiting for them. There is a basket which contains the materials for a therapist to use. That includes bottles of oil. The filling up of the oil is done from a larger bottle. Normally the therapists would do that at the beginning of the day.
	AA
[119]	AA is the complainant’s brother.  He saw her the day after her birthday and she told him, and his partner at the time, that she had been sexually assaulted on her birthday while getting a massage.
[120]	She told him that during the massage she was massaged on her breasts and her buttocks and at one point the massage therapist went underneath her underwear and tried to penetrate her vagina.  She also mentioned feeling his erect penis thrusting into her head while he was adjusting her pillow.
[121]	He agreed in cross-examination that at one point his sister had said that she was not sure if it was the same person who did the whole of the massage.
	Jiangfang Zhang (aka “Jenny”)
[122]	Jenny is a massage therapist who had been working at Hydra-Time for just over three years at the time of this incident. The business does not provide any form of sexual touching or sexual activities. When massaging a female client, the breasts are not massaged and the vaginal area is not touched.
[123]	She was working on 11 October 2020 along with Angela, Betty and Flynn, as therapists, and Peter was on the reception.
[124]	She recalled two female customers coming in for a couple booking. She thought it was one of two couple bookings on the day. One of them used the double room and the other single rooms. In terms of the couple booking that used single rooms, she remembered that she was in room number 2 with the daughter and Flynn was in room number 3 with the mother. She did not use anything to cover the daughter’s face during the massage. The daughter wanted some tea while she had her herbal bath after the massage.
[125]	To her recollection the other couple massage, the one that used the double room, was earlier in the day. She also was involved in that massage.
[126]	Peter did not ever give any massages while he was working at Hydra-Time, as far as she knew.
[127]	In cross-examination she agreed that massage therapists wore black but the receptionists did not.  Flynn wore black, as he was required to.
[128]	The receptionist, on this day Peter, would normally explain the massage procedures to the clients, but she didn’t see that happen this day.  
[129]	This day she had just finished in the double-room when she saw Flynn speaking with Peter.  She did not clearly hear what that conversation was but she saw that Flynn went into room number 3 with the oil and the towel and said, “I’ll probably do the firm one”.  Peter told her to go to room number 2 for a relaxation massage and she was told to wait for a few minutes because the client just went into the shower and she needed to wait until the client was ready.  It was very unusual in her experience for a client to shower prior to the massage.
[130]	It was “impossible” that sometimes the therapist would be substituted part the way through a massage.
[131]	She thought it was impossible that she was mistaken about the client having a bath before the massage, and it was also the case that she brought tea to every client.  She could not be mistaken about this.
[132]	When it was suggested to her that, at the time she was giving that massage, Angela was in room 4 with Betty doing a double massage, she did not accept that “because the clients were in the spa”. She clarified she meant the clients in room 4 were in the spa. They were her clients. She assumed Angela was in room 1, but she did not go in to confirm that.
	Yang Chen (aka “Angela”)
[133]	Angela was the other part-owner of Hydra-Time Spa and is the mother of Peter.  
[134]	As part of the procedures prior to the massage, clients were told they should leave their underwear on. There was never any circumstances where the receptionist would perform the massage.
[135]	She remembered that Hebe arranged Flynn to work for her. He started working around 19 September 2020, and was there until about 18 October 2020.  He worked Saturdays and Sundays.
[136]	She was taken to the screenshot of the booking system, and to the entry referring to the complainant and her mother on 11 October 2020. She did not recall those clients because “on that day I had some other clients in the double-room”. She accepted that day that they were busy. One of the duties of the receptionist was to find out how hard the client wanted the massage to be. On this day Peter was the receptionist.  
[137]	In cross-examination, she did not accept that Flynn was asked to stay late even though she accepted that he often needed to leave to look after his pregnant wife.
[138]	She did not see the complainant and her mother because at the same time she and Betty were doing a massage on a man and woman in the double-room. When she is working, she sometimes leaves the door to the massage room slightly open, particularly in the double-room because the ventilation is not very good in there. She did not recall anyone looking through the door on that day and her closing the door.
[139]	Flynn preferred to give firm massages, if he had a choice.  It normally does not happen that the therapist will be substituted, but it does happen from time to time.  Normally, it happens if the client is not satisfied with the therapist. However, if another client came in who required a particular therapist, the first client might be asked if they agree to substituting. If that happened the booking system would reflect the switch of the massage therapist.
[140]	The booking system should reflect the exact time when the massage started, if the receptionist remembers to do it.  She described the booking system as showing the “roughly exact time” that the massage therapist entered the massage room.
[141]	She did not recall anybody speaking loudly in the hallway that day.  
[142]	In re-examination, she maintained that if a therapist was substituted, the client would always be asked if they agree.
[143]	She was taken to an entry in the printout from the booking system which referred to two persons being booked in at 12 midday. The Chinese characters on that referred to “double-room”.
	Yuqiao Tian (aka “Thomas”)
[144]	Thomas is Hebe’s son and has worked at the business as a receptionist.  He denied working there in October 2020.  This was not challenged in cross-examination.
[145]	Further, he denied ever giving massages to clients.
	Hanlin Chen (aka “Peter”)
[146]	Peter is Angela’s son and was working as the receptionist on 11 October 2020.  
[147]	He said his duties as a receptionist included explaining to clients what was involved in the massage and telling them what they need to do, including undressing but keeping their underpants on. If the room or the massage therapist was not ready, he would have the client sit on the sofa and provide some drinks, if they wanted them. If it was a busy day and the massage therapist did not have time to clean the room, then sometimes he would help clean the room. He emphasised that before that happened, he would check and confirm there were no clients in the room. 
[148]	He recalled on 11 October 2020 there were two mother and daughter bookings.  He does not remember much about the first booking but said he remembered the second booking clearly because they asked to have a shower before the massage, which had never happened before.  They were the second of the two mother and daughter bookings that day. 
[149]	To his recollection, the defendant and Jenny massaged the first couple. As for the second of those bookings, he could not clearly remember who massaged the mother, but he remembered that she asked for a firmer massage and the daughter asked for a more relaxing massage. He recalled telling them about the procedures for the massages, including telling them that if they were not happy with the massage therapist, they could ask for another. He “absolutely” denied going into either massage room while they were having their massages.
[150]	He recalled that, after the massages, both gave positive feedback about them.
[151]	In cross-examination, he said it was “absolutely impossible” that a client may be listed in the booking system under a particular massage therapist but that someone else might actually end up doing the work.
[152]	He maintained that he spoke to the mother and daughter about the type of massage they wanted, and that was probably in the waiting area near the front counter.  He also maintained that the mother asked for firm massage and the daughter asked for a more relaxing massage. As a result, he said, he told Jenny and Flynn what type of massage each wanted, and he did that before each client had a shower.
[153]	He said he could not recall speaking with the daughter in the hallway while she was wearing a small towel around her body. He denied walking into the room with her.  He said that he only stood near the door and told her that was her room. He denied having anything to do with running the bath for the daughter.  
[154]	He accepted that they were busy that day and he had asked Flynn if he could stay working longer.  He also confirmed that if they were short of staff, they may ask the client to take the bath before the massage.
[155]	He denied that the therapist would be substituted while massaging a client, with the exception being if the client was not satisfied with the therapist.  It was suggested to him that during the massage of the earlier mother and daughter couple, he had asked Flynn to leave to perform acupuncture on another client. He denied this. Hypothetically, if a therapist was substituted the work calendar would reflect that.
[156]	It was suggested to him that he asked Jenny to leave the massage that she was doing, concerning the second mother and daughter couple, to attend to a specific customer who had just arrived. He said he could not recall that, but he denied entering the room and he denied providing massage in that room. He also denied touching the client in any sexual way.
[157]	In re-examination he said that if a massage started later than the booking time, it would normally be reflected at that later time in the booking calendar.  Normally his mother would check that if she was available. On the other hand, he testified that the system did not record the exact starting and finishing times, but did reflect the overall time a therapist was with a client.
	Emily Smith Clayton
[158]	Ms Clayton was the daughter in the earlier mother and daughter booking.  She recalled she and her mother were shown to two separate rooms, and that a lady performed her massage. It was that lady who explained to her that she had to strip down to her underpants and lie on the table.  
[159]	She believed her mother had a male therapist because she saw that person taking her mother into the room. He was a different person to the male at reception. 
[160]	She was not touched on her breasts or vaginal area in the course of the massage. She was invited to have a 20 or 30 minute bath after the massage finished.
Pascale Michelle Clayton
[161]	Mrs Clayton is the mother of Emily Clayton. 
[162]	She was not asked anything about the type of massage she wanted until she was in the room, and then was asked by the massage therapist after she was lying face down on the table. She believed her massage therapist was male, although she had only quickly looked at him so did not know what he looked like. His voice was male. She believed it was a different person to the receptionist that she had earlier spoken to.
[163]	She asked for the massage to concentrate on her back. At one stage the therapist moved the towel down her back and tucked it into her underpants. At some stage after that, possibly 20 or 30 minutes into the massage, there was a knock on the door and the male therapist left the room. She could hear some sort of conversation outside the door.  After that, a lady came in and explained that the male had to leave because he had to do some acupuncture with someone else and she continued the massage.
[164]	In the course of the massage, she was not touched on any of her private body parts.

	BH
[165]	BH is a friend of the complainant. She did not see the complainant on 11 October 2020, but spoke with her the next day. The complainant told her that she had gone for the massage and had originally taken off all her clothes but then got back up and put her underwear on. She lay down on the bed and said that she was touched on the breasts and in between her legs. If she remembered correctly, the complainant said at one point the person tried to reach between her legs and she had shut her legs really quickly.
	Lisa Jayne Armitt
[166]	Ms Armitt is a police officer who at the relevant time was stationed at the Special Crime Unit in Brisbane.  On 12 October 2020 she was informed about a notification of sexual assault by the complainant, via an alternative reporting option.  As a result, she spoke to the complainant by phone. Ms Armitt did not make notes of the conversation but was told to the effect that the complainant had gone to the Hydra-Time Spa with her mother, had a full body massage and during that massage she had been sexually assaulted.
[167]	On 11 November 2020 she attended the complainant’s home and took possession of a pair of underpants that were in a plastic bag.  They were sealed and sent for forensic examination.
	Ashley Mileham
[168]	Ms Mileham is a forensic scientist employed by the Queensland Police Service in Brisbane. On 28 November 2020 she collected a package containing one pair of female underpants which was at a property point. She conducted a DNA trace sampling examination of them utilising a tape-lift.
[169]	The tape-lift sampling was conducted only on the inner surfaces of the underwear, but across the whole of the interior surface, both rear and front.  That tape-lift sample was then sent for DNA examination.
	Allison Kathleen Lloyd
[170]	Ms Lloyd is a supervising scientist at the Queensland Health Forensic Scientific Services laboratory.  She has qualifications in the areas of biotechnology and forensic science, which need not be detailed given they were not put in issue.
[171]	Her testimony was concerned with the DNA comparison between reference samples from the complainant, her mother, and the defendant as against the trace sample taken by Ms Mileham.  She gave evidence explaining what DNA is and how comparisons are made, which was familiar in its terms and need not be recited here.
[172]	The trace sample taken by Ms Mileham was found to contain a mixed DNA profile from at least three contributors. The mixed profile was consistent with the complainant having contributed to it and so, given that the sample was taken from  her underwear, it was assumed that she was one of those contributors. Of the remaining contributors, there was consistency between that mixed sample and the reference sample from the defendant. It was estimated that the mixed DNA profile obtained was approximately 8.1 billion times more likely to have occurred if the defendant had contributed along with the complainant.  It was estimated that it was approximately 21 billion times more likely to have occurred if the complainant’s mother had not contributed to the profile along with the complainant. The remaining contributor was not identified. Those mathematical estimations were based on an application against the Australian Caucasian database, because QHFSS does not make any assumptions on ethnicity. However, in her opinion, the calculations would not be likely to change noticeably if compared against an Asian database.
[173]	Ms Lloyd also testified as to the concept of DNA transfer, speaking in terms of primary, secondary, and tertiary transfer of DNA. At this stage, there is no method to determine whether or not trace DNA was deposited by transfer or not.  
[174]	The transferability of DNA is affected by a number of things. One might be how much the person providing their DNA sheds the cellular material.  It also depends on the material that is accepting the transferred DNA, notably the type of material and whether the transferred DNA is likely to be accepted or not, and also then whether it will be retained more readily or not.  If the cellular material was in a liquid, it will transfer and hold onto the receiving material more readily than might otherwise be the case. A further variable is the degree to which the receiving surface will absorb, and thereby hold, the cellular material. It can also depend on the temperature of the item as well whether the receiving material has been recently cleaned or not.
[175]	Comparison was made between the mathematical probability calculations and those which can in theory be achieved. As a standard, the probability calculations are capped at 100 billion. The reason that the figures provided were comparatively low, is because there were partial profiles obtained in respect of both the defendant and complainant’s reference samples. The partial profile obtained from the tape-lift sample concerning the defendant was less than 13 of a possible 40 areas of comparison.
[176]	In cross-examination it was confirmed that there is no way of telling whether the DNA located on the trace sample was on the underpants through primary, secondary or tertiary transfer.  However, each transfer will always leave less of the DNA material than that from the earlier placement. 
[177]	Something like a piece of fabric is likely to have better receiving capabilities of transferred DNA than a smooth surface.  However even different fabrics will have different abilities.  It may depend, for example, on the weave of the material.  A towel is porous and as such is something that is likely to be a good receiver of DNA.  Also, massage oil would likely hold DNA well.

	The defendant’s interview with police
[178]	The defendant was interviewed on 4 December 2020 in the presence of his Mandarin speaking solicitor. For part of the interview he also had the benefit of an interpreter operating over the telephone but, because the interview went longer than expected and the interpreter had another engagement to attend to, the use of that interpreter became untenable.
[179]	The defendant accepted that he was working on the day in question at Hydra-Time Spa. He was working there because he was filling in for Hebe. He accepted that he was the only male massage therapist working on the day along with Angela, Jenny and a trainee staff member he named as Sherry, but who must be Betty, as well as the receptionist Peter.
[180]	Once all the allegations had been put to him, there was a break while he spoke with his solicitor privately. On resumption he said that he knew the two people mentioned, and that he massaged the mother. He said he “would definitely have done the mother”. He said that because he was aware of allegations having been made about sexual touching by male therapists in the past, he would never perform a massage on a younger lady.  
[181]	His recollection is that he was in the staff room with Jenny, and Peter approached him and said that there were two clients to massage. Peter had said the older one wanted a heavier massage and the defendant said he would do that one. He did not remember what she looked like.
[182]	He denied any inappropriate touching of any client at any time.
	The parties’ cases
[183]	The defendant submits that the real issue in dispute in the trial is that of identification of the offender, but also correctly submitted that I must also be satisfied of each of the elements of each offence. It was submitted that I must also consider whether the operation of section 24 of the Criminal Code was raised in respect of either charge and, if so, whether it has been negatived. The prosecution does not disagree with that contention, but submits that each element has been proven, with identification being the real element in contention in each charge.
[184]	The prosecution case is circumstantial on identification. It is submitted that I should accept that the massage on the complainant was performed by the defendant, notwithstanding his denial to that effect, the direct evidence of Jenny that she performed the massage and Peter’s account which support Jenny. In essence, it is submitted that I would accept that it was a male massage therapist, that there were only two male employees working at the time, only the defendant was qualified to perform massages and the presence of his DNA on the inside of the complainant’s underpants supports the fact he was the offender.
[185]	It is further submitted that a defence of mistake of fact as to consent is either not raised on the evidence or, if raised, is excluded.
[186]	The defendant on the other hand submits that it cannot be proven to the requisite standard that it was he who performed the massage. He points to the evidence that he was wearing a dark or black shirt while Peter was wearing a white shirt, and that was the colour shirt the complainant told police the therapist was wearing as he was leaving the room. He submits I would accept that Jenny had at least started the massage with the complainant and then either finished it, or that someone other than the defendant finished it. It is submitted that the substitution of the therapist is a reasonable possibility even though there was no notation in the booking system; the same happened with Mrs Clayton and there was no notation to reflect that.
[187]	It is further submitted that the DNA evidence is of such little weight as to provide no real support for the prosecution case because of the real possibility that the DNA got there through transference.
	Consideration
[188]	I find JA and LKA to each be honest witnesses whose reliability is affected only by the passage of time, which each in differing terms acknowledged in their testimony. Each were measured and thoughtful in the provision of their evidence, and each were careful to ensure their testimony was as accurate as it could be. There were some inconsistencies between each of their accounts, but I thought these were of such a nature as to be expected.
[189]	I similarly found each of Emily and Pascale Clayton to be honest witnesses. Again, the passage of time has created some deficits in their memory, but the accounts given by each of them can be broadly accepted.
[190]	I treat Jenny’s evidence with caution. While there are clearly aspects of it which are reliable, she was to my mind too dogmatic in some parts. For example, to contend that it was “impossible” for a therapist to be substituted during a massage is not only hard to accept as a matter of common sense, it has been proven wrong by reliable evidence. Further, her account as to the events of the day was very black and white, and did not allow for the possibility of innocent error. 
[191]	Similarly, Peter’s evidence was notable for its conclusiveness and, generally speaking, the lack of allowance for mistake in recollection. For example, he asserted that where a therapist was substituted, it would always be reflected in the booking system, yet the substitution involving Mrs Clayton was not so reflected. As a further example, his account as to always asking what sort of massage the client wanted, always telling clients to strip down to their underwear and offering each of the them the opportunity to substitute therapists if they are not satisfied with the allocated one is shown by the evidence to be unreliable. He also presented as being too ready to make sure it was clear that he never entered a room with a client in it when cleaning when that was unresponsive to the question asked. It appeared that he was overly defensive about any suggestion of impropriety on his part. I treat his evidence with caution. 
[192]	Broadly speaking, each of Hebe and Kenny’s evidence can be treated as reliable, although I note that Jenny spoke of business practices and procedures as though they were invariably followed. The evidence shows that is not always the case. Nonetheless, subject to that caveat, each of their accounts seems generally reliable.
[193]	Putting to one side the element of identity in each charge for the moment, I am satisfied beyond reasonable doubt that each of the elements of each charge have been proven. I accept JA’s account of the respective physical conduct.
[194]	I accept that the rubbing of the breasts was indecent. Based on the consistent account of the other massage therapists, rubbing the breasts was not a legitimate part of the procedure being offered. Further, although estimates of time must be treated with caution, on the complainant’s account there was an inordinate amount of time spent rubbing them. The nature of the conduct must also be seen in light of the rubbing of the vaginal area and the penetration. That is sufficient to be satisfied of the element of indecency, but the inadvertent feeling of the therapist’s erection, both at that time and later, provides further proof that it was being done for purposes of sexual gratification.
[195]	I accept that complainant’s evidence that she did not consent to this touching. Further, in my view, a section 24 defence is not raised on the evidence for the charge of Indecent Assault. It was not a legitimate part of the service offered, therefore the therapist could not have honestly believed consent had been given in the absence of some conduct or communication. There had been nothing said prior to the commencement of the charged conduct to give rise to that belief, and the complainant’s failure to object could not be seen as retrospectively communicating a consent. To apply, the belief must be held at the time the offending commenced.
[196]	I am satisfied that the complainant has described an act of digital penetration. The description of three fingers being inside the vaginal “flaps”, of touching the clitoris and searching for entry to the vaginal passage is sufficient to prove penetration. That it was done with fingers is proven by the fact it occurred immediately after rubbing with the fingers and hands, and that the complainant identified by the sensation of touch that it was fingers being used.
[197]	I accept that the complainant did not consent to this penetration, although I also accept that the evidence is sufficient to raise the possible application of section 24 of the Code. The fact that there had been a touching of the breasts for an extended period without objection not long before penetration was effected, that the complainant had separated her legs when the massaging was centred near the upper thighs and her acknowledgement that everything was “all good” before penetration occurred is sufficient to raise the possible application of the defence.
[198]	However, I accept that the application of section 24 has been disproven beyond reasonable doubt. Again, that form of touching was obviously not a legitimate part of the service offered, and so the therapist would have required very clearly expressed consent to either honestly or reasonably believe that consent had been given. While inferences may be drawn from the matters sufficient to raise the possible application of the defence, they are of such a nature as to permit the conclusion that the requisite belief was either not held or, if held, was not reasonably held. 
[199]	Further, the defendant in his interview with police indicated that he would not touch a client in that manner as he had seen other therapists get into trouble in the past. While there are reasons to discard much of what he said in that interview, the logic of that proposition is self-evident and reinforces the view that clear and express consent would be required before touching of that nature could be believed to be consensual.
[200]	In the circumstances of this matter, I find that the evidence of distress provides support for the complainant’s account. It was almost immediate upon leaving the premises and was described by LKA in terms that are consistent with a physical reaction not controlled by the complainant herself, and which temporally aligned with her speaking of relevant events and enquiring about the appropriateness of the conduct. It was in my view attributable to the complained of conduct and was not feigned or constructed.
[201]	While I acknowledge that the terms of the preliminary complaints to others do not align exactly with the precise allegations made, the differences are explicable. One cannot expect a young person, who is clearly upset and confused about what occurred to her, to recite with crystal clarity the precise allegations on each occasion. Allowance also needs to be made for the fact that each of the complaint witnesses had not, on the evidence before me, made notes of the conversations. Each appeared, to varying degrees, unable to recall the precise language used, and so allowance must also be made for that. Further, the use of language such as “tried” to penetrate seemed to me to be referring to a lack of actual penetration of the vaginal passage, rather than a lack of penetration of the vulva.
[202]	The fact remains that the complainant made timely complaints about the complained of conduct that were generally referrable to the charged conduct, and consistent with her in-court account of that. The inconsistencies in the preliminary complaint evidence are not sufficient to cause me to doubt the veracity of her evidence about that conduct. It is however notable that those complaints did not identify the offender with precision and, in one instance, raised the possibility of the massage having been performed by two different people.
[203]	I find that the defendant commenced the massage on Mrs Clayton earlier in the day, and I accept that he left part way through and another therapist took over. It seems likely therefore that Jenny massaged Lisa Clayton for the whole of her massage. That is consistent with the booking system screenshot.
[204]	That it was the defendant who commenced the massage on Mrs Clayton is consistent with her account, and was not challenged in cross-examination. Neither was the assertion that there was a substitution of therapist. The statement that he had to undertake acupuncture on another client is hearsay and so is not proof of the fact. Mrs Clayton simply had no reason to be mistaken about the substitution of therapist, and its timing is broadly consistent with a 12.30pm booking for a remedial massage. Although this booking appears in Jenny’s column in the screenshot, this is the type of detail that I am satisfied was not closely followed in the booking system. According to the screenshot of the booking system the business had more bookings than therapists at that time, and while I need not find who took over the massage I accept that the defendant was substituted out. 
[205]	The comparative lack of therapists at that time makes it is likely that there was a flow on effect, and subsequent bookings ran late. That is further supported by the fact that there is a further booking surplus to the number of therapists at 1.30pm. This flow on effect would account for the complainant and her mother having to wait before being taken to their respective rooms, although I find that they weren’t running as late as they thought given the time the receipt for the parking meter was issued and that one of them signed the Covid-19 register at 2.00pm.
[206]	The booking system screenshot does not reflect the therapist substitution. Nor does it reflect that any subsequent bookings ran late, but I consider that it is only broadly reflective of the time clients spent at the business, rather than being an accurate account of when the massages started. That may well have been the intention but, as Angela noted, its accuracy depended on it being updated. It seems to be common ground that this was a busy day, and hence it was not likely to be attended to.
[207]	I accept that the complainant was asked to, and did, have a bath before her massage. Doing this was a practice adopted when the business was running short of available therapists, as was likely. Further, the complainant is unlikely to be mistaken about this. It would be inconsistent with her observed demeanour upon leaving, and her stated desire to get out of there, for her to have stayed for a leisurely bath.
[208]	That finding is contrary to the testimony of Jenny and, by implication, Peter, and contrary to the account given by the defendant to police.
[209]	Jenny’s account, at least in so far as it touches upon her performing the massage on JA cannot be accepted. Her assertion that the daughter had a bath and was given a cup of tea does not align with what I have found. I also consider that she is mistaken when she asserted that Angela could not have been in room 4 at the time because her client was in the bath. The booking system screenshot shows that a couple booking in a double room was likely to have been able to have been performed in room 4 during 2.00pm or 2.15pm till 4.00pm. 
[210]	Further, JA testified that as she walked towards the shower room after her massage, (i.e. towards room 4) she saw a woman being massaged and an Asian lady shut the door to the couple massage in that double room at that time, as she testified and is inconsistent with Jenny’s assertions.
[211]	It may be that Jenny is confused with the massages given to the Clayton mother and daughter couple. It is true, as submitted by the defendant, that she had anchored her recollection of who she massaged off the unusual practice of the clients showering first. This would ordinarily suggest a basis for the reliability of the recollection, but it does not invariably do so. Given the aspects of her account I cannot accept, there is a real possibility of a mistake on her part as to who she massaged.
[212]	It follows that I do not accept that part of Peter’s testimony that suggests that JA was ready to be massaged at about the same time as her mother (who bathed after the massage) and that he had discussed with both Jenny and the defendant which client wanted a firm massage and which a more relaxing massage, and the allocation of therapists on that basis.
[213]	Neither JA nor LKA suggest that they had expressed, or been invited to express, a preference for the style of massage prior to the commencement of the respective massages, and I accept they did not. That this information was not obtained prior to entry to the massage room, as Peter strongly testified was the fact, is consistent with the experience of the Claytons, and so considerable doubt attaches to that aspect of his evidence. Additionally, his unwavering testimony as to the accuracy of the booking system is not borne out by other acceptable and reliable evidence. His testimony as a whole must therefore be treated with caution before being accepted. It may well be that his testimony has been affected by a desire to cover up his own shortcomings in his adherence to the practices and procedures of the business, as they were outlined by his mother in her testimony and effectively repeated by him.
[214]	It is also true that he expressed his reason for remembering his actions concerning the complainant and her mother as the fact they had requested to shower before the massage. Again, that is not a complete assurance for the reliability of his evidence, and he may be confusing this mother and daughter couple with the Claytons. 
[215]	I do not accept the defendant’s account to police to the effect that he massaged the mother. I found it curious that he purported to remember this mother and daughter couple massage roughly two months after the event, but not the other, when he did not claim there was a notable reason to remember it. This was a reason to doubt the veracity of the account. 
[216]	It seems to me that his account was a reconstruction, based on what he asserts he “would have” done and only given after he was apprised of the allegations and he had spoken with his solicitor. In so far as he asserted that he commenced the massage very shortly after being spoken to by Peter about it, and therefore that the daughter did not have a bath before the massage, it is inconsistent with my findings and cannot be accepted for that reason.
[217]	The approach I take to those parts of his account that I do not accept has been outlined earlier herein.
[218]	I find that the defendant commenced the massage with the complainant. In making that finding I am cognizant of the fact that it is contrary to the accounts given by three other witnesses. In addition to discounting those aspects of their respective evidence, I note that the booking system refers to there being four clients receiving massages at the time the complainant’s massage commenced and there were four therapists working. The complainant described the therapist as having a male voice and his performance of the start of the massage more safely accounts for the presence of his DNA inside the complainant’s underpants.
[219]	The DNA comparison evidence does not, in my view, carry the weight which the prosecutions contends I should find. It is important to recognise that there was a single tape lift used to sample the whole of the inside of the underpants. The mixed sample identified on analysis could have been detected at one discrete area or it could have been the product of the cumulative collection of trace DNA from different areas resulting in a mixed sample on the single tape lift used. Further, even if it had been picked up from one application of the tape lift only, there is no way to know where that was.
[220]	I have been provided with a written submission on behalf of the defendant contending however the DNA could have been transferred to the inside of the underpants, but it is unnecessary to discuss that document in detail. I do however note that it is not submitted that I should act on a basis other than accepting it was the defendant’s DNA found in the mixed sample, even though it was only a partial profile identified. 
[221]	Many of the suggestions as to possible transfer are, in my view, remote and do not raise a reasonable possibility of transfer. However, it seems to me that there was a reasonable chance of transfer to the inside of the underpants even if the defendant had performed only the initial “half” of the massage through him tucking the towel inside her underpants while she was lying face down. Another reasonable possibility relates to her reaching inside, and in the process touching, her underpants with her hand. If it is accepted that he started the massage, it is not fanciful to think that her hand had likely come into contact with something the defendant had touched, such as the massage table or residue massage oil on some surface that the defendant had been using, and transferred the DNA in that way to some unspecified part of the garment.
[222]	A far more compelling inference may have been open had the evidence established that the trace sampling had been limited to an isolated area of the garment, such as the gusset, as was opened by the prosecution. The fact that the sampling process used raised the possibility of cross-contamination from different part of the garment and therefore the defendant’s DNA could have come from a relatively innocuous part of the garment deprives this evidence of much of its intended weight.
[223]	Accordingly, the utility of this evidence is, in my view, limited to showing that the complainant had come into contact with something that the defendant had touched. This is far more readily explained if the defendant had performed the first half of the massage. There is no evidence as to whether the defendant had used that room at all earlier in the day, or any other day. In my view, it would be speculative to think that she had transferred his DNA to her underpants if there had been no direct contact between them that day. Scientific possibility does not necessary equate to a reasonable doubt, and nor does it compel acceptance of a possibility the tribunal of fact considers remote.
[224]	It is common ground that when the therapist, whom I have found was the defendant, left the room after completing the first “half” of the massage there was conversation in the hallway. I need not determine if it was in fact an argument or a conversation with apparently loud voices. After that a person entered the room who completed the massage. It is the identity of that person which is at the heart of this trial.
[225]	I accept that it was a male who entered the room and performed the balance of the massage, including the conduct constituting the two offences, as the complainant testified. While there is some obvious likelihood that it was the defendant, I am not satisfied to the high standard required for proof of the offences that is the case.
[226]	While any reasonable doubt must be based on the evidence and not be merely hypothetical or theoretical, and while also acknowledging there is room for disagreement on whether a reasonable doubt has been raised, in my view a reasonable doubt is raised on the combination of number of features of the evidence.
[227]	The complainant did not have the opportunity to look at the face of the person conducting the second “half” of the massage. Although it was established that the complainant had earlier told police that the person leaving the room was wearing a white shirt, the evidence of the making of the prior statement goes only to the assessment of credit of the author and not to proof that the person was in fact wearing a white shirt. However, while there is no evidence that the male leaving the room wore a white shirt, there is evidence that she was uncertain what that person was wearing. 
[228]	While I acknowledge her evidence that the person who performed the second half of the massage had the same voice as the person who performed the first half, that was based on a limited number of words spoken in language she was not familiar with. A similar observation concerning the number of words spoken needs to be made concerning her evidence that the person on reception had a younger sounding voice than the therapist. Further, in all instances the comparisons were, in part, being made when JA was, understandably, distressed and confused about what was happening. This has the real ability to distort her ability to make accurate comparisons.
[229]	It is reasonably possible that the defendant was substituted as the therapist. Allowing for the fact that the complainant had a half-hour bath at the start of her booking, the first half of the massage would have likely finished sometime around 3.30pm. That is the time that “Philip” was booked in for a remedial massage, the same sort of massage which resulted in the defendant being substituted out of Mrs Clayton’s massage earlier in the day. 
[230]	Philip was not called as a witness, even though what appears to be his address and phone number can be found in the Covid-19 register. His absence has not been explained. There is no direct evidence of who performed his massage but, in the absence of evidence to the contrary, it is conceivable it was the defendant. 
[231]	I acknowledge that the defendant himself did not suggest this was the case, however I have earlier observed my view that his account to police was a reconstruction and not based on any actual memory of the day in question.
[232]	In that event, there were again more clients requiring attention than there were therapists. Accordingly, the male attending to the complainant might not have been a therapist. I do not conclude that this is the case, but in my view there is a reasonable doubt that it was the defendant who performed the second half of the massage.
[233]	I accept that Peter, the only other male in the business at the time, has denied committing the offences. I do not reject his denial outright, but there are features of his evidence which cause me some concern such that I cannot accept it without scrutiny. I am left with some uncertainty in light of all of the evidence.
[234]	My reservations about the identity of the offender should not be taken to be a criticism of the complainant, or the quality of her testimony. On the contrary, my conclusions are reached partly because of her honesty, in light of other evidence adduced at the trial. 
[235]	There is no room to suggest that different persons committed the different offences, and that was not suggested by either party. It follows that the element of identity has not been proven beyond reasonable doubt in respect of each charge.
Conclusion
[236]	I am not satisfied beyond reasonable doubt of the guilt of the defendant on either charge.