Behi v R

WARD P: The applicant (Riaz Behi) has sought leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) against his convictions for sexual offences against the complainant. Section 578A of the Crimes Act 1900 (NSW) (Crimes Act) prevents the publication of any matter which is likely to lead to the identification of the complainant.

On 21 March 2022, the applicant was convicted by the jury of all 13 counts on which he had been arraigned (as described in due course) following a trial in the District Court before Huggett DCJ (as her Honour then was). There had been an earlier trial by jury before Woodburne SC DCJ commencing on 22 February 2021 (the first trial). That jury was discharged after it was unable to reach a verdict. The first trial is of relevance in light of the applicant’s complaint as to a ruling made in the first trial as to the inadmissibility of certain evidence (which then carried through to the second trial). There was no application to reagitate that ruling in the second trial and no complaint is made as to the conduct of or directions given in the second trial.

The applicant pleaded not guilty to all counts on the indictment. Those counts fell into two groups: first, 8 counts of sexually touching of the complainant without her consent and in circumstances of aggravation, namely that the complainant was under his authority, contrary to s 61KD(1)(a) of the Crimes Act (counts 1, 2, 3, 5, 9, 10, 11 and 12), on various dates between 31 January 2019 and 28 March 2019; and, second, 5 counts of sexual intercourse with the complainant without her consent, knowing she was not consenting, in circumstances of aggravation, namely that she was under his authority, contrary to s 61J(1) of the Crimes Act (counts 4, 6, 7, 8 and 13 respectively) on dates ranging from 7 February 2019 to 4 April 2019, those counts variously comprising digital penetration of either the vagina or the anus and cunnilingus.

The offences occurred when the applicant, a chiropractor, was providing therapeutic massage treatment to the complainant, his patient, at the clinic in Sydney (“The Back Guys”) (where the applicant worked) (22/2/21; T 1.23-30). The complainant, who was 32 at the time of trial, was a Japanese citizen who spoke little English and had arrived in Australia in November 2018. (The complainant’s evidence was given with the assistance of an interpreter (25/2/21; T 25.38-26.15).)

The complainant, who suffered lower back and groin pain, attended several appointments with the applicant. The first of those appointments was arranged by a friend whom the complainant had met shortly after her arrival in Australia, Mr Frank Cotterell. Mr Cotterell found the applicant and his business on-line and attended the initial consultation at the clinic with the complainant, as well as some further consultations. Mr Cotterell had also paid for some, at least, of the appointments (25/2/21; T 5.12-13). Mr Cotterell was a witness at the trial, by which time he had had a falling out with the complainant (18/3/21; T 628.1-2).

Evidence concerning appointments in relation to which there were no alleged offences was tendered by consent as context evidence.

In the second trial, the complainant’s evidence was given by video recording of her evidence at the first trial. Witnesses otherwise gave evidence in the Crown case in person. The audio recording of the evidence given by the applicant in the first trial was also played, as well as that of some of the defence witnesses. Witnesses otherwise gave evidence in the defence case in person or by AVL.

On 27 June 2022, the applicant was sentenced to an aggregate sentence of imprisonment for 9 years, with a non-parole period of 5 years, 6 months to date from 20 March 2022. The head sentence will expire on 19 March 2031, and the applicant will first be eligible for release to parole on 19 September 2027. There is no application for leave to appeal against the sentence imposed on the applicant.

The applicant seeks leave to appeal on the following grounds:

An extension of time for the filing of the Notice of Appeal is required, since it was not filed until 1 February 2024, outside the time stipulated by r 3.1(3) and 3.5(2) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The applicant submits that in light of the matters set out in the affidavit sworn 24 January 2024 by the applicant’s legal representative, Ms Paula Teague, the necessary extension of time in this matter should be granted, particularly when consideration is had to the serious charges against the applicant, the late retainer of Ms Teague to act in this matter (as described in the affidavit), which resulted in the late briefing of counsel and Senior Counsel in this appeal, the detailed evidence at trial and the comprehensive submissions outlining the grounds of appeal. The Crown submits that there is no merit in the application and on that basis an extension of time should be refused.

Further, the applicant requires leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act in relation to ground 2, as this raises a mixed question of fact and law. The Crown submits that leave should be refused but, if leave be granted, the appeal should be dismissed.

At the relevant time, the applicant was a chiropractor working in the abovementioned clinic in York Street, Sydney. Commencing on 15 January 2019, the complainant had a series of five appointments at the clinic with the applicant (the events of these first five appointments were uncharged, and only relied on as context evidence) (see the complainant’s evidence at 25/2/21; T 38). The complainant was assessed by the applicant at that initial consultation and communicated with him through the use of Google Translate (25/2/21; T 38.29-46.45).

It is not necessary here to summarise in any detail the complainant’s account of those first five appointments (25/2/21; T 47.13-84.28). It is, however, relevant to note that the complainant kept handwritten personal notes of her appointments with the applicant commencing on 15 January 2019 (Ex 18). The complainant’s evidence in this regard was that:

Consistent with the reference in her evidence to being instructed to remove her clothing, the complainant’s note of the first session included that she was told to take her dress off and that “I didn’t know what to do as it is in Australia. I feel embarrassed but if necessary I need to bare it. He pulled my underpants to my hip. In Japan they normally provide paper undie … It must be normal”.

The complainant gave evidence that during the third appointment on 22 January 2019 she could feel the applicant’s fingers close to her anus (26/2/21; T 65.27). Then, after the fourth appointment, the complainant’s notes recorded concern as to the areas that the applicant was touching during the massage (her anus and her genital area inside her underpants). The notes included that “I feel the areas he was touching … I am worried but it may be an accident? I feel it is getting better”. In her oral evidence, the complainant said that she did not know what to say in English and did not want to be rude to the applicant (26/2/21; T 70.50).

At the fifth appointment on 29 January 2019, the complainant said that the applicant put her underpants down to the level “of pubic” and massaged her pubic area in a circular motion (1/3/21; T 83.31-34). The complainant’s notes recorded that she felt the areas the applicant was touching were expanding but that Mr Cotterell said he was a good doctor. The complainant recorded that maybe she was overthinking. The complainant’s evidence was that the applicant massaged her pubic bone, before enquiring about the scar on her lower abdomen. The complainant explained the removal of half of her uterus and lymph glands in treatment for cervical cancer, following which the applicant informed her that the treatment would change from the next session (1/3/21; T 83.312-84.28).

As noted, the evidence of those first five appointments was relied upon only for context purposes. The counts on the indictment related to incidents that occurred on most but not all of the remaining appointments, as follows.

Count 1 (aggravated sexual touching) related to the sixth appointment on 31 January 2019. The complainant’s evidence was that the applicant massaged her with oil, with his fingers very close to her [female] genital area and she thought they even touched her [female] genital area and her anus (1/3/21; T 87.32-36). The complainant’s evidence was that, at this appointment, the applicant instructed her (using Google Translate) to remove her underpants completely (1/3/2021; T 86), telling her that this session would be different, as she had had surgery for cervical cancer and the treatment he proposed was necessary to heal that (1/3/2021; T 86.38-45). The complainant said that in Japan removing pants absolutely never happened for a massage but she believed it was common in Australia (1/3/2021; T 87.1-3); and that the applicant told her the treatment would be better if she did, and she did not want to interfere with the treatment so she accepted that (1/3/2021; T 87.4-8).

The complainant said that, when she was on her back, the applicant massaged on the groin area, and touched her genital area a number of times (Count 1) (1/3/2021; T 87.49-50). The complainant felt humiliated (1/3/2021; T 88.7). The complainant recorded in her notes that she was shocked when the applicant told her she had to take off her underpants, but he said it was “necessary”, and the complainant noted “I have to do it even I don’t want to do as Doctor said so. He said he will use a towel to cover my body. He didn’t really use the towel very much, but must have been considerate maybe I am overthinking?”. The complainant recorded that Mr Cotterell said the applicant had very good reviews and “let’s believe him as a doctor” and that “I don’t have anyone to rely on so believe him”.

Pausing here, in cross-examination, the applicant said that he was entitled to use the title “doctor” in his practice as a chiropractor.. The title of “Dr” was on the certificates in reception (24/3/21; T 832).

The complainant gave evidence that she asked Mr Cotterell about the massage she received on 31 January 2019 (when she was asked to remove her underpants completely) and that Mr Cotterell said to the effect “Behi is medical doctor, and he has good review. Why don’t you trust him?” (1/3/21; T 89.31-41).

The applicant here says that there was no mention of the touching of genitals or the anus in the handwritten notes relating to this appointment (AT 65.14).

Count 2 (aggravated sexual touching) related to the seventh appointment on 5 February 2019. The complainant’s evidence was that the applicant again told her to remove her underpants. The complainant said that she lay on her stomach and the applicant massaged her lower back, buttocks, groin and thigh area with oil; and that she felt his hand touch her genital area as well as her anus while massaging in a circular motion. The complainant said that she turned to lie on her back and the applicant massaged her groin and thigh areas; and that the applicant’s fingers touched her genitalia, and massaged her clitoris and labia areas (Count 2) (1/3/2021; T 90-92). The complainant said she felt humiliated and shocked (1/3/2021; T 92.14).

The complainant’s evidence was that she wanted to ask the applicant why he was touching those areas, but could not do so in English; and that he called himself a “medical doctor”, giving necessary treatment, and she did not want to be rude towards a “medical doctor” (1/3/21; T 92.17-25; T 104.25-32). The complainant also said that the applicant had promised to make her feel better; that she was not familiar with massages in Australia; and that she thought she had to trust him (1/3/21; T 104.25-32).

The complainant recorded in her notes that that this was “[s]ame as the previous time”; and that she felt embarrassed and that “I don’t want to feel that way because he is treating me the best he can. However I feel embarrassed and if possible I want him to stop”. Again, the applicant says there is no reference to touching of the complainant’s clitoris and vagina in the notes made in relation to this appointment (AT 16.24-26).

Counts 3 (aggravated sexual touching) and Count 4 (aggravated sexual intercourse) both occurred on the eighth appointment, which was on 7 February 2019. The complainant’s evidence was that she removed her clothing and underwear, she lay on her stomach on the table, that the applicant massaged her legs, groin and buttocks, and that his hand touched her legs, genital area and anus, while massaging in a circular motion (1/3/21; T 105.28; T 105.40-43). The complainant said that she was tired that day, having not slept well; that she fell half asleep, and that she was woken by the applicant inserting one of his fingers into her vagina (Count 4) (1/3/21; T 105.46-106.4). The complainant said she was shocked, and her body actually jumped reactively; that she did not know what to say; and that it was brief, one second or less (1/3/21; T 106.3-14;17). The complainant said that the applicant then asked her to turn around and she lay on her back; that the applicant massaged her groin and the inside of her thigh; and that his fingers touched her genital area (her vagina, labia and clitoris) (Count 3) (1/3/21; T 106.32-33; T 106.46-107.15).

The complainant said that she wondered why the applicant touched those areas but again said that she did not know how to ask in English and did not want to be rude. The complainant said that she believed the applicant touched the areas accidentally, and she felt she was improving from the treatment so she thought he was doing something right (1/3/21; T 107.25-29; T 107.25-108.2).

The complainant’s notes recorded that “I was shocked he inserted his finger I was dozing and a bit spaced out I wanted to ask in English but what can I say? While I was thinking I lost the timing to ask him. It may have been an accident because of oil. It would be embarrassing if it was my mistake while he was treating me best he can. I can ask him nicely if it was in Japanese”.

Count 5 (aggravated sexual touching), Count 6 (aggravated sexual touching), and Count 7 (aggravated sexual intercourse) all related to the ninth appointment on 12 February 2019.

The complainant’s evidence was that the applicant directed her to remove her clothing, including her underpants, and to lie on her stomach; and that, while he was massaging her thigh towards her groin, she felt his hands touching her anus and then felt him put his finger inside her anus (Count 7) (1/3/2021; T 111.15-32; T 112.1-4; 27-32). The complainant’s evidence was that she was shocked but it was brief; and she thought it was an accident (1/3/2021; T 111.36-37).

The complainant said that she turned around and the applicant massaged from her thighs upwards, moving through her “female genital area” by touching, and massaged near her female genital area “in concentration”, making circular motions; and that his hand stopped near her clitoris and he massaged her clitoris; and that the applicant put his finger, on his other hand, in her anus (Count 6) (1/3/2021; T 112.6-19; T 113.24). The complainant said she was shocked; that while she still respected and trusted the applicant at that time, she did not know the purpose of this touching; and that she had to think, as she had knowledge of massages and the clitoris was not an area to be massaged for the purpose in respect of which she was attending the clinic (1/3/2021; T 112.36-41).

The complainant said that she tried to compose a sentence in English to ask but before she did he asked in English to the effect of “how” and “feel”; that she said “stop” and “no”; and that he asked “why”, and she said, “Yes”. The complainant said that she wanted to know why he was doing what he was doing, and asked him “why”; and that he asked whether or not she wanted him to stop, and she responded “yes, yes, yes” (1/3/2021; T 112.36-113.5-12). The complainant said that the applicant asked “why”, and put both hands on her abdomen, put his face on his fingers, looked up at her, lifted her bra and touched her breast (Count 5) (1/3/2021; T 113.26-36).

The complainant said that the applicant used Google Translate on his phone to say “The type of massage I’m giving you is not ordinary regular massage”; and that she used her phone to say that she wanted a regular massage and not “this kind of massage” (1/3/2021; T 113.47-114.18). The complainant said that the applicant said he would “not … give the same massage again”, and there would be no need to pay extra fees (which she said confused her) (1/3/2021; T 114.20-24).

The complainant’s notes included:

The complainant’s notes in relation to this appointment also include that “I’m not that desperate to be touched by an old guy!!” and “I feel really, really pissed!!!”

The applicant says that there was no reference in the notes to the insertion of his finger into her anus and no mention of him touching her clitoris (AT 20.29-33). However, as extracted above, the complainant’s notes did record that something distressing had happened (“something I want to forget!!); and that during the massage the applicant “did something like foreplay” and that there would not be any pressure points there. This is consistent with the complainant’s evidence that the applicant touched her clitoris; and the distress could readily relate to the digital penetration of her anus (bearing in mind that the previous Count 4 included where digital penetration of the vagina was alleged was said to have been brief and that the complainant thought it may have been an accident because of the oil).

On 14 February 2019, there was the tenth appointment. The complainant made no allegation of offending on that occasion (1/3/21; T 114.45-115). The complainant said that the applicant massaged her groin area but he did not touch close to her genitals. The complainant’s notes recorded that she was not sure whether to go that day but that the applicant had promised he would not do it again, she had paid, and she felt she was getting better, so “I will keep going believing his promise”. The complainant recorded that “He really didn’t do anything today, previously he was touching the area very close. I felt scared that he was doing something he shouldn’t have been. If he keeps his promise and fixes my issue just doing a normal massage I will be happy”.

I interpose here to note that the applicant’s evidence was that there was sexual contact between him and the complainant on 14 February 2019 but he said it was initiated by the complainant (see below) (24/3/21; T 851.30-35). The applicant’s case was that this was the only sexual contact that occurred between the two (10/3/22; T 487.32).

The applicant said that, while massaging the complainant’s left hip flexor, the complainant put her left hand on his right hand, guided it on top of her clitoris, over her underwear and then proceeded to move his hand up and down for approximately 20 to 30 seconds. The applicant said that the complainant then stopped and the applicant removed his hand and said “we stop”, to which the complainant replied “stop, no more”, bringing up the towel to below her eyes and starting to giggle. The applicant said he laughed awkwardly and repeatedly said “we shouldn’t have done that”, to which she replied “why?”. The applicant said he replied “I don’t know”. The applicant said there was a small awkward conversation via Google Translate, where he said “are you okay?” and the complainant responded on her phone. The applicant said that, to make light of the situation, he wrote “feel more relaxed now!” and the complainant laughed (23/2/21; T 782.36-784.33).

There was in evidence a series of text messages between the applicant and the complainant on 14 January 2019 prior to the appointment that day, in which the complainant having informed the applicant she would be late to the appointment and, after some communications about recording, the applicant replied “It’s ok, don’t worry, see you at 3.40 x”. The applicant explained “x” as a mistake on the basis that he habitually texted his wife this way (see Ex D) (24/3/21; T 854.37).

Count 8 (aggravated sexual intercourse) related to the eleventh appointment on 19 February 2019. The complainant said that she lay on her stomach and the applicant placed a towel in her underpants and then pulled her underpants down to massage her; and then instructed her to lie on her back, which she did, and to remove her underwear, which she did not. The complainant said that the applicant said that “This is necessary things to do” and removed her underpants himself. The complainant said that the applicant massaged her, including her vaginal area, and that he massaged her genital area and her clitoris in a circular motion. The complainant said that the applicant put his finger in her anus (Count 8) (2/3/21; T 124.45-126.37).

The complainant said that she was very shocked, and panicking, and that in her panic she “was not really sure what’s going on. What is it really is? I was very much confused …. I told him not to touch those areas. He said he promise not to do that but he did” (2/3/21; T 126.47-127.3). The complainant said that at some point, the applicant asked “do you want me to stop” (she understood the words “want” and “stop”); and that she said “yes, yes” a number of times (2/3/21; T 127.4-10).

The complainant said that the applicant later used Google Translate to the effect that he was humiliating himself, had never done something like this in his “long career”, and that “I am very sorry to offend you or make you feel bad. I will never do that again”, to which she says that she responded “I want you to give me just regular massage. I don’t want you to do towards me something like this what happened again today” and the applicant promised not to do it again (2/3/21; T 127.27-33; T 127.37-43). The applicant says that the evidence of the Google Translate entries from that day do not resemble the communications of which the complainant gave evidence.

At this appointment, the complainant made another appointment. The complainant said that she wanted to think about it at home; and did not know how to make another appointment in English, and thought she might get in trouble if she did not make an appointment (2/3/21; T 128.14-19). (The applicant argues that this is contradicted by other evidence as to the scheduling of appointments in text messages.) (See cross-examination at T 496.45-50 about the cancellation and subsequent rescheduling of the appointment booked following this session.)

The complainant recorded in her notes:

Pausing here, the reference to “the same way of touching as previously” is consistent with there having been touching of the clitoris and/or digital penetration of the anus on 12 February 2019 as the complainant has alleged.

The twelfth appointment was on 26 February 2019. The complainant said that the applicant massaged her back, buttocks, groin area and thighs. The complainant recorded that she had had a stomach ache, swelling, nausea and diarrhea; that she felt terrible just thinking about the chiropractor and that “A bit more to go. I want to go to another doctor but I can’t understand English… I don’t know what to do”. There was no allegation of any inappropriate conduct on this occasion.

The applicant’s records included an appointment with the complainant on 5 March 2019 but the complainant did not recall attending an appointment on that day. The applicant said that he knew the complainant had attended an appointment on 5 March 2019, from the records in Ex F and Ex L. The applicant said that he also had a recollection of that day because the complainant moved her appointment and they had a discussion over Google Translate about her stomach (24/3/21; T 793.40-50); and because his wife and daughter came there to meet Ms Michael (who worked in the clinic) who had taken a photo with his daughter while he was minding her (25/03/21 T944.20-46). (The applicant notes that the Crown did not put to him that the complainant did not attend on that day or that his evidence about this was incorrect or false.)

I note that in summarising the evidence of the respective counts, I have used the Crown’s enumeration of the appointments but from Count 9 onwards the numbering of appointments on the defence case should increase by one (i.e., the thirteenth appointment on the Crown case is the fourteenth appointment on the defence case and so on).

Count 9 (aggravated sexual touching) related to the thirteenth appointment on 7 March 2019. The complainant said that, during the massage on 7 March 2019, while she was on her stomach, the applicant pressed her tailbone or just below it, and then his fingers or hand touched her anus (Count 9). The complainant said that it was brief; and she believed it was an accident (2/3/21; T 138.1-4; T 142.30-39).

The complainant’s notes recorded “same as previous appointment” and that “[w]hen he is pressing pressure points on my buttock and back his finger slipped to my anus. Is his finger slipping? I don’t want to say too much so that he may misunderstand and start sexual harassment again”. Consistently, up to this point, the complainant was recording uncertainty as to whether the conduct was accidental – such as whether the digital penetration was his finger slipping with the oil; not as to what she perceived to be occurring.

Count 10 (aggravated sexual touching) related to the fourteenth appointment on 14 March 2019. The complainant said that, while the applicant was massaging her while she lay on her stomach, the applicant again touched her anus and “pushed my anus down” (Count 10) (2/3/21; T 146.39-40). The complainant’s notes recorded that her stomach remained unwell. The complainant also recorded that if she quit treatment she would not get money back, whereas after a bit longer it would be finished and that “I will be free from back and hip joint pains. Today his finger went into my anus… is he doing sexual harassment again? Is he doing it seriously? I need to think positively for a little bit longer”.

Count 11 (aggravated sexual touching) related to the fifteenth appointment on 21 March 2019. The complainant’s evidence was that this was similar to the previous appointment (2/3/21; T 148.32-36). The complainant recorded in her notes that her stomach had still not been well; and that “It is the same again. It is weird he put his finger into my anus. It is in Australia it’s very different to Japan. If I am overthinking I would feel really embarrassed and I would say something inappropriate to the doctor. I can not act unless it is confirmed. I want to finish it without any issues”.

Count 12 (aggravated sexual touching) related to the sixteenth appointment on 28 March 2019 in which the complainant said that the applicant touched her anus (2/3/21; T 152.10-14). The complainant said that the applicant instructed her to turn over, which she did; that he indicated he wanted her to remove her underwear, or that he wanted to himself, then grabbed it and removed it (2/3/21; T 153.5-12). The complainant said that the applicant massaged her groin and thigh, and then bent her legs up similar to changing a baby’s nappy, with her anus and vagina exposed (2/3/21; T153.14-20) and that she felt something soft touching her anus and felt that the applicant had used his tongue to lick it (2/3/21; T 153.21-25). The complainant said that she had been suffering from insomnia, had “lots of worries” and could not think clearly; and that when this happened, she could not “really think about what was going on but I had a sensation that something – something soft touched my anus. I was sure it was not a finger” (2/3/21; T 154.1-9).

The complainant said that she made a further appointment (on that occasion), again so that she could think about it at home (2/3/21; T 154.24-25). The complainant said that she had spoken with a friend, and did not know what to do if it happened again as she understood that unless she had evidence and “unless anything actually happened”, it would not be considered a “case” (2/3/21; T 154.25-30). The complainant also said that:

The complainant said that she did not “really see what happened”, and could not “really tell what was going on”; and that she decided to “put up with all of these matters”, as the applicant was still giving her treatment and she (or Mr Cotterell) had paid for the package of treatment (2/3/21; T 154.43-50). The complainant said that she also still held respect for the applicant as he was a doctor (2/3/21; T 154.46).

In the complainant’s notes there was an undated entry (which the complainant attributed to the 28 March 2019 appointment) (17/3/21; T 585.20-27), which recorded that, when she hesitated to take her underpants off, the applicant took them off even though she said “No! No!”; that the applicant said it was necessary; and that she was worried she had angered him by doubting him. The complainant recorded that the applicant’s finger went into her anus. The complainant wrote that she was “spaced out” due to lack of sleep and that “When I was stretching as usual, without underpants, I felt that he licked my anus!! But I couldn’t see and I couldn’t determine as it was so quick. If he’s done it that is terrible! He may not have done it? But I think he did it. If I can’t confirm I can’t sue him! But I think he did it”.

Count 13 (aggravated sexual intercourse), related to the seventeenth (and final) appointment on 4 April 2019. The complainant said that the applicant said it would be a different type of massage, and that he showed her something that he called “a vibrator” (3/3/21; T 169.25-27). The complainant said that she was scared, and could not really see it as her glasses were off and she had very poor vision (3/3/21; T 169.28-30; T 170.30-34).

The complainant said that the applicant removed her bra hook and used the vibrator on her lower back, back, buttocks and groin areas while she lay on her stomach; and that he said something about her underwear, then she grabbed her underwear and said “no” (many times), but he grabbed it himself and removed it (3/3/21; T 169.40-43; T 169.48-170.25). The complainant said that she was very shocked that the applicant removed her underwear and hoped the session would finish as soon as possible (3/3/21; T 171.20-26). The complainant said that in the massage, the applicant pushed around her tailbone and pressed down which pushed down her anus (3/3/21; T 171.30-32). The complainant said that the applicant then told her to lie on her back; that she put on her bra but was still not wearing underpants; that the applicant did not cover her body with the towel, and applied the machine on her thigh and groin, then on the scar from her cervical cancer surgery which was very painful (3/3/21; T 171.44-172.5).

The complainant said that the pain meant that she could not project her voice, and she did not know how to communicate in English, so she grabbed the machine attempting to communicate “just stop”; and that the applicant smiled, like a sneer, and asked how she felt. The complainant said that she said “painful”, and he stopped the machine (3/3/21; T 172.5-10; 15-20). The complainant said that the applicant gave the impression that nothing was wrong, and massaged the complainant then stretched her legs (similar again to changing a baby’s nappy). The complainant said that she saw the applicant’s face very close to her female genital area, then he licked her vagina (Count 13) (3/3/21; T 173.15-21).

The complainant’s notes recorded that she had said “No” about her underpants “but it wasn’t accepted”; that she felt scared but that “it will finish soon, I thought I would put up with it. I can’t understand English I can’t go anywhere else”. The notes recorded the use of the vibrator, and that he licked “the front”; that she heard the sound of his mouth opening, and “there was his head”; and that she thought that if he licked her she would kick his head but “I couldn’t speak when he actually did it. I felt scared I didn’t know what to say. Go home quickly, I didn’t want him to know I was scared”. The complainant recorded that she was angry, and questioned what to do.

Pausing here, the applicant’s evidence was that Mr Cotterell attended the business before the consultation with the complainant on 4 April 2019, informing him that he and the complainant had broken up, and asking him to give the complainant a letter, which included a request that the complainant repay the money owed to him, in regard to which she had only paid around $600 (18/3/21; T 604.30-31; 24/3/21; T 816.18-40). The applicant said that he gave the complainant the letter after the appointment on 4 April 2019 (24/3/21; T 817.50-818.15).

There were in evidence various documents recording text messages or communications between the applicant and the complainant. Exhibit D was a series of photographs taken by police of text messages between the applicant and complainant from the complainant’s phone. Exhibit G was a schedule of text message communications between 6 and 28 February 2019. Exhibit H was a schedule of text messages between 4 April and 12 April 2019.

Exhibit L was an extraction report of some messages between the applicant and complainant, and of the Google Translate history of messages taken from the applicant’s phone (some of which had been deleted and some where the text was no longer returnable).

On 5 April 2019 (the day after the final appointment), the complainant texted the applicant asking “[d]id you lick my body yesterday? I want to know what you want to have sex with me” (see Ex D; Photo 7; Ex H).

The applicant replied, saying: “… I don’t know whether you made a mistake, or it was incorrectly translated. No, I didn’t lick your body. When did it happen?”.

Significantly, in my opinion, the applicant then sent a message “I think your [sic] very attractive. I don’t intend to get something from you or take something from you. I apologise if I made you feel uncomfortable” (Ex H).

In a further message on 5 April 2019, the applicant said “[c]an you tell me if you said it correctly or you said it in a different way? I am extremely confused”; “Or we can talk about it in our next appointment, can you explain it to me?” (Ex H).

The complainant responded “[y]ou touched my crotch in February. You said it was not a cure to touch it. I have been thinking since then” (Ex D; Photo 8; Ex H). The applicant replied “[w]hat were you thinking?” and the complainant said “I want to know what you think” and “I wanted to tell you about it now”. After further messages, the complainant sent a message on 5 April 2019 “I do not understand, I wanted to know what you think. Ask again. Why did you touch my pussy? Why Valentine’s Day?”. The applicant asked if they could talk about it in person (Ex D; Photo 11; Ex H). (Pausing here, this suggests that something of a sexual nature did occur on 14 February 2019. The complainant could not explain the reference to Valentine’s Day in this message (15/3/21; T 485.38-T 486.10).)

The complainant had sent a message “I thought that I could talk in the mail because there is a language barrier” (see Ex D; Ex H).

On 11 April 2019, the complainant sent a message (Ex H), including the following:

Pausing here, there is no evidence that the complainant did have a DNA test. The applicant gave evidence that he was very concerned about the complainant going to police, but not because of any concerns in regard to his DNA because there was no chance that his DNA would be on her vagina (25/3/21; T 866.23-34).

Significantly, the applicant replied in a lengthy message that “I would like to apologise to you when we meet at todays appointment. I thought you are attractive and I thought you thought I was attractive. However when you said you don’t, I did. Since then I haven’t done anything. I didn’t lick you previously, and I didn’t know how to do it. It’s impossible, it isn’t about who I am”. The applicant stated that he used the “equipment” to experiment with effective massaging. The applicant also said that he had a young family and “it will bring a lot of pain to them. I am sorry I beg you to have a talk so you can see I tried my best to make your back better”. The applicant said “since February at the time I haven’t done anything inappropriate”. The applicant also offered to return the balance of the treatment fees. The applicant’s final message on 11 April 2019 was asking the complainant “were you attracted to me?” (Ex H).

On 12 April 2019, the applicant sent the complainant a further text, including the statements that in February “I felt a very strong attraction to you. I felt that you felt similar feeling for me. I thought you were responding to my touch, I received further massage. After I touched you different places you seemed to be enjoying it – we laughed after that we laughed together I thought we may have sex. Therefore when you said stop and stopped I thought you were feeling the same I went beyond the professional boundary with my patient I was extremely confused and embarrassed. I have never done this before! During 20 years of working life I have never been a non-professional. When you asked me why I did it I said I don’t know. Because I didn’t know what to say. Also it’s hard for us to communicate. I really felt bad … I didn’t lick you I can’t understand why you thought I want to do it. After you told me no I didn’t do anything. I understand my non-professional act made you feel that bad. I’m sorry. I like you. I thought you liked me. When you said “no” I was embarrassed and regretted my decision I didn’t know what to say. After that I can see how you feel uncomfortable. However, after you said no in February I concentrated on your back….” (Ex H) (see also Ex L).

Evidence of complaint was given by Mr Cotterell, Margaret Stamboulidis, (the complainant’s host mother in Australia) and Kaoru Sato (a qualified psychotherapist and counsellor).

Mr Cotterell gave evidence that he was friends with the complainant but they had had a falling out and that the last time he had seen her was on 14 February 2019 (18/3/21; T 628.1-2; 2/3/22; T 262.10-20). Mr Cotterell gave evidence that they had communicated with each other face to face in English, and in written communications via Google Translate; that he would speak to the complainant in English, using short sentences, simple words, and repeating if she did not understand (2/3/22; T 252.45-253.8). Mr Cotterell gave evidence that he never had any difficulty communicating with the complainant (2/3/22; T 283.19-21).

Mr Cotterell confirmed that he had located the applicant online and said he had booked the first appointment and attended four to five appointments with the complainant until around early February (2/3/22; T 261.46-50). Mr Cotterell paid for the complainant’s first two appointments and paid for a treatment package of appointments, which cost $1,200.00 (2/3/22; T 279.7-8).

Mr Cotterell gave evidence that at the end of February 2019 he received a text from the complainant that she was feeling very uncomfortable with the way the applicant was touching her during treatments and that he had removed her underwear and that he had told her to trust the applicant because he was a doctor (2/3/22; T 262-263). (The Crown submits that the fact that Mr Cotterell and the complainant gave different dates as to when the complainant first told Mr Cotterell of her concerns — her evidence being that she first raised this on 31 January 2019, as noted above — is not material to the assessment of the complainant’s credibility and reliability.)

The complainant emailed Mr Cotterell on 4 June 2019 and told him that the applicant had continued to harass her sexually and she was going to report him (2/3/22; T 264).

Ms Stamboulidis, with whom the complainant resided from April 2019, gave evidence that the complainant came home one night at the end of June and seemed very upset and went straight to her bedroom; and that when the complainant came out she had tears in her eyes. Ms Stamboulidis asked her if she was okay and the complainant “burst out crying” and said that the chiropractor she had been going to had “touched me inappropriately” (1/3/22; T 192.50-193.20). Ms Stamboulidis did not speak Japanese, and would mainly converse with the complainant in English. Occasionally, one of them would write things down on the complainant’s phone or look up a word. Ms Stamboulidis gave evidence that the complainant was trying to speak English (1/3/22; T 193.30). Ms Stamboulidis’ recollection was that the complainant said “he touched me inappropriately” in English (see 1/3/22; T 193.24).

In cross-examination, the complainant denied that she understood the English word “inappropriate”; and said that when she was speaking with Ms Stamboulidis she was using Google Translate, and thought she probably activated the sound of the Google translator (4/3/21; T 215.8; T 216.30; T 215.49; T 216.38-40).

The third complainant witness was Ms Sato. Ms Sato is Japanese, speaks Japanese fluently and has a Masters degree in Japanese literature, which involved translating Japanese to English. The complainant attended Ms Sato for counselling at her Town Hall clinic from around 18 April 2019. The complainant spoke Japanese with Ms Sato (1/3/22; T 204-295.19).

The complainant told Ms Sato she had been sexually assaulted by a chiropractor she had seen about 17 times. Ms Sato said that the complainant told her she went along with it and that, around the seventh session, felt that the massage was getting a little bit too close to her vagina and anus; that the complainant told her that when she was lying face down or face up, depending on what she had been instructed to do, she felt a finger being inserted into her vagina and her anus and sort of jumped and looked at the practitioner to see what was going on (1/3/22; T 204-205; 207).

Ms Sato said that the complainant told her that she had given the applicant the benefit of the doubt until towards the end of the offending when she was sure it was not right (1/3/22; T 208.1-4). Ms Sato gave evidence that the complainant went to Japan for a week to ten days in the middle of May 2019, and that when she came back, she wanted to go to the police (1/3/22; 208.45-209.15).

Ms Sato prepared a summary in English of what the complainant told her just before they went to police in mid-June (Ex M) (AB 1635-1637). Ms Sato said that she typed the document during a session with the complainant who was telling her in Japanese what had happened, while referring to a notebook or diary that she had with her (1/3/22; T 208-211). Ms Sato did not see the contents of the notebook or diary to which the complainant was referring. (The complainant said that she had left her diary in Japan (4/3/21; T 224.15).)

On 18 June 2019, the complainant and Ms Sato went to police, taking the summary prepared by Ms Sato. The officer in charge, Detective Senior Constable Amy Champion (DSC Champion), gave evidence that she arranged for an accredited Japanese interpreter to be present when taking the complainant’s statement on 26 and 27 June 2019 (9/3/21; T 283.35-40). Later, DSC Champion arranged for Ms Junko Yamasaki to translate documents from Japanese to English (9/3/21; T 284.15.21).

Ms Yamasaki gave evidence that she was an accredited interpreter, with 20 years’ experience (9/3/22; T 177). Ms Yamasaki translated a number of documents from Japanese into English (tendered as Exhibits G, H and 18).

Relevantly, I note that Ms Yamasaki gave evidence that, when translating a word that did not directly translate into English, she would take the best word that she thought would fit what the Japanese language was dictating (28/2/22; T 183.16-33).

DSC Champion gave evidence that she had attempted to contact alleged complainant witnesses in Japan (Ms Takeuchi and Mr Shariaska) by email but there was no reply (1/3/22; T 236.30-50).

DSC Champion gave evidence that during the execution of a search warrant of the applicant’s business premises, the applicant provided access to the complainant’s records from his laptop (tendered as Ex F) (1/3/22 T 232.14-25).

Police also obtained text messages between the complainant and the applicant by taking photographs of messages on her phone and had them translated (see 1/3/22; T 238; 28/2/22; T 177-179; Exhibits B, D, G, H). The applicant confirmed that the translations were text exchanges he had with the complainant (24/3/21; T 827.10-24).

Detective Senior Constable Lillyman (DSC Lillyman) gave evidence that the applicant had provided police with the medical and account records of the complainant (9/3/21; T 294).

Exhibit L was the extraction report from the applicant’s phone, which included Google Translate messages from English into Japanese. The wording of that message is slightly different from the wording as it appeared in Ex H but in substance was the same. DSC Lillyman gave evidence that the complainant was asked to provide her phone for a Cellebrite download, but that she had declined because her phone would be retained by police for a period of time (2/3/22; T 315.20-25).

DSC Champion gave evidence that the applicant was offered an interview, but exercised his right to silence (9/3/21; T 286.44). DSC Champion gave evidence that the applicant had no prior criminal history (1/3/22; T 242.30). DSC Lillyman also gave evidence that the applicant did not have any prior criminal record (2/3/22; T 293.36).

The Crown prosecutor tendered s 191 agreed facts without objection (Ex N). Those agreed facts went to what experts in chiropractic massage had agreed as to the chiropractic treatment of back and groin pain. Relevantly, those agreed facts included that (9) the massage of pubic bones which lie at the front of the pelvis or the anus or vagina area are far removed from therapeutic treatment in cases of back pain; pelvic pain or groin pain; and (10) the insertion of a thumb or finger into a woman’s vagina or anus or the licking of the vagina or anus is completely inappropriate and unacceptable as a chiropractic treatment under any circumstances and is not associated with any legitimate treatment; and that the placing of hands by a chiropractor inside a bra has no clinical justification.

The applicant gave evidence in the first trial, which was recorded, and the audio recording was played at the second trial in the defence case.

The applicant gave evidence as to his qualifications as a chiropractor; that he had started practising in 2001, and had then practised for 18 years, until he was suspended pending resolution of the charges. The applicant had never had any conditions, notations, reprimands or undertakings associated with his registration, had carried professional indemnity insurance for the period of his registration and was subject to verification as a practitioner by AHPRA (22/3/21; T 701.30-T 702.15).

The applicant’s evidence was that his treatments involve a technique called spinal decompression therapy, a variety of soft tissue techniques, including trigger point therapy, which involves releasing a focal spot within a muscle that is hypertonic or tense, with direct pressure, and cross­friction massage, during which he would use oil to reduce the friction. The applicant explained the use of the decompression table, interferential machine (or “cupping”) and pelvic blocks. The applicant also explained the process for initial consultations and assessments of new patients, including procedures used for obtaining consent for various types of treatment and the assessment (22/3/21; T 702-703; T 708.31-50).

The applicant described his usual patterns of treatment of the complainant, including the use of the decompression table, doing a drop-piece adjustment, massage, wing-lift adjustment and then showing stretching exercises to be done at home (22/3/21; T.723-725).

The applicant’s evidence was that, on Tuesdays and Thursdays, when the complainant would attend there was a nutritionist intern, and a nutritionist, working at the clinic as well as the applicant; that the applicant would see 25 to 50 patients per day, with an average of 30 to 35; and that there were two treatment rooms, with one patient in each. The applicant said he would switch on the decompression table for 7 to 10 minutes for one patient, then attend to the other patient, and go back and forth between them (22/3/21; T 706.35-40; T 707.26-708.7).

The applicant gave evidence of the initial appointment consultation and assessment with the complainant and Mr Cotterell, then the physical assessment of the complainant, including the use of a hand-held massager, which the applicant stopped shortly after (23/3/21; T 735.20; T 738-753).

The applicant denied all allegations of non-consensual sexual contact. In particular, the applicant denied having told the complainant to undress or having pulled her underwear and towel down in any session (see 23/3/2021; T 754; 758; 762; 764; 777; 778-779; 785-786; 787-788; 24/3/21; T 799-801; 803; 805; 820-821); ever working close to the complainant’s anus in a way that his fingers touched her anus, or touching her anus (23/3/21; T 765; 771; 778-779; 780; 24/3/21; T 799-801; 803; 805; 807-808; 810); touching the complainant’s genital area, vagina, clitoris or labia in any session (23/2/21; T 765; 774; 777; 786-787); lifting the complainant’s bra to look at and touch her breasts (23/3/21; T 780); stretching the complainant’s legs while she was not wearing underpants or moving her legs in a position similar to a baby’s nappy being changed (24/3/21; T 806-807; 808-810; 823); and licking the complainant’s anus or vagina (24/3/21; T 810; 823). The applicant also denied that the complainant ever fell asleep or was half asleep in any of her appointments during massage treatment (23/3/21; T 77.20-50).

The complainant gave evidence that his massage treatment was very focused and that it would not have been possible for him accidentally to touch the complainant’s vagina or anus (24/3/21; T 801.17-20). The applicant also gave evidence that only one size towel was used in the appointments (23/3/21; T 742.41).

As noted earlier, the applicant said that the only sexual contact with the applicant was on Valentine’s Day 2019 and that this was at her instigation. The applicant gave evidence that, when the complainant moved his hand, he froze and did not know how to extricate himself without offending or rejecting the complainant. The complainant said he did not know how to end the situation in a way that was not offensive. The applicant said that he was particularly concerned in regard to the complainant’s response, because he was a practitioner and was male (24/3/21; T 851.30-T 852.5). (The applicant here points to s 292B of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) and the Bench Book direction and submits that his evidence as to the “freeze” response would not lightly be dismissed (10/3/22; T 471.10-25).)

In respect of the text messages in Exhibits G and H, the applicant gave evidence that in the messages with the complainant from 5 to 12 April 2019 he was initially trying to explain to the complainant and then to de-escalate a situation where she was making threats from 11 April 2019 to report his alleged licking of her during treatment the previous week, which he denied. The applicant said that he had offered to meet the complainant outside the clinic so that she would feel safe with people around, if that would make her more comfortable (24/3/21; T 827.30-35; T 871.22-26).

The applicant conceded that the code of conduct for chiropractors required the maintenance of adequate records, and stated that his records in regard to his appointments with the complainant were not “up to scratch”. The applicant said he had not been aware that the code of conduct outlined that trained translators and interpreters should be used, and agreed they were not used in his appointments with the complainant (24/3/21; T 839.1).

The applicant agreed that, in some circumstances, relationships with patients should end if they become ineffective, or compromised but that he did not end the professional relationship following the sexual contact on 14 February 2019. The applicant denied sexually exploiting the complainant or using his position to establish or pursue a sexual relationship (24/3/21; T 841.44; T 843.1-15).

In regard to the agreed facts (Ex N) the applicant agreed that on 15 January 2019 (the initial appointment) he did not give the complainant a private area to change, but said this was because she had started changing so quickly; and that he did not provide a gown, but stated he did provide a towel. The applicant gave evidence that he used bathroom towels (tendered as Ex 6) and did not use “hand towels” (24/3/21; T 844).

The applicant said he did not see the scar on the complainant’s abdomen until the fifth appointment, and otherwise did not notice what she would wear. The applicant gave evidence that, when the complainant was changing on the first appointment, he did not tell her to stop, because it was difficult to do so in English, he did not want to make her uncomfortable, and it was her choice, so he let it happen (24/3/31; T 844.22-25).

The applicant denied being sexually attracted to the complainant from day one, or at any time (24/3/21; T 844.15; T 849.38). The applicant maintained that he did not touch intimate areas (24/3/21; T 847.47-T 848.2). The applicant agreed that the “x” sent in the message to the complainant on 14 February 2019 was a “kiss”, but (as noted above) he maintained it was a mistake from habitually texting his wife. This was the only text message in which the applicant used an “x” (24/3/21; T 854.37).

In regard to Ex H (the messages on 5 April 2019 in which he had written “I think you’re very attractive. I don’t intend to get something from you or take something from you. I apologise if I made you feel uncomfortable”), the applicant gave evidence that this was because the complainant texted him “I want to know what you want to have sex with me”, which he thought was in the context of what had happened on 14 February 2019. The applicant said he thought her texts may be about how he had reacted, that she may think that he had rejected her or offended her, when she may have feelings for him. The applicant said he was trying to de-escalate the situation, saying “whatever” for her not to feel rejected and to calm down (24/3/21; T 855.40-47).

The applicant said that he sent the complainant the text messages asking to speak in person because he assumed the text message asking if he had “licked her body” was a mistake or was an incorrect message (24/3/21; T 856.5-10). The applicant said that he felt there was a very big chance of miscommunication, so he preferred to have a face to face conversation, even if it was through Google Translate (24/3/21; T 857.40-46). The applicant said that, with the subject matter being discussed, he was concerned that there was a large potential for misunderstanding, with “lick my body” being a translation or typing issue, and he did not want such a sensitive topic to be misunderstood (24/3/21; T 858.25-30). The applicant said they had not discussed or acknowledged what had happened on 14 February 2019 after it had happened, and he thought the text messages were the complainant coming back and wanting to know why he reacted the way he did. The applicant said it was an important topic which affected him strongly both professionally and in terms of his wife. The applicant said he preferred a conversation in person, so they could resolve it, and he could see if the complainant was being genuine (24/3/21; T 859.23-33).

The applicant said he repeated to the complainant that he liked and was attracted to her because he thought she had feelings for him and that, somehow, he had offended her. The applicant thought that the motivation for the complainant’s texts was the complainant feeling rejected, so he wanted to placate her so she would move on (25/3/21; T 872.7-13).

In regard to the message on 11 April 2019 (“However, you said no. I felt confused and silly. I didn’t know what to say. I am sorry many times and Feb”), the applicant said that he was “sorry many times” for what happened on 14 February 2019, not because he had sexually assaulted the complainant on a number of occasions. The applicant said he did not raise that the complainant had initiated the contact on 14 February 2019 as she was already threatening to go to the police (25/3/21; T 873.18; 876.40-41).

As to Ex L, the applicant explained that the message “I felt like you were responding to my touch...” was in reference to his having moved from the place that he would normally treat her, to a spot closer to her panty line in massaging her hip flexor, which he had not done before. The applicant felt that maybe the complainant had misinterpreted, and it may be why she had taken his hand (25/3/21; T 880.29-33).

The applicant did not think at any time that there was a criminal allegation, as it was a consensual act on 14 February 2019 that the complainant had initiated. The applicant said that he was not getting any sexual gratification from it but accepted he had participated in it (24/3/21; T 860.4). The applicant said that there was no personal interaction with the complainant over text message at all until after 4 April 2019, only conversations about appointments or her going to hospital. The applicant denied that he wanted to have sex with the complainant. The applicant said that he was concerned when the complainant stopped messaging, and was trying to re-engage her to resolve the matter. The applicant said that he was not concerned about the police or anything of that nature until he received that message from the complainant on 8 April 2019 (24/3/21; T 860.47).

The applicant called a number of character witnesses, some of whom gave evidence in person, some by AVL and some whose audio evidence from the previous trial was re­played. The witnesses included a number of long time patients of the applicant (whose identity it is not necessary here to record), as well as a friend, Mr Saroush Tallai. The applicant submits that the character evidence given by the defence witnesses was consistent as to their impressions of the applicant; emphasising that his female patients described him as respectful of their privacy and professional. One of the patients gave evidence that, while in the treatment rooms, when the applicant would go into the other treatment room she would be able to hear everything being said and done in the other room (26/3/21; T 980.10-13).

The applicant also called evidence from a nutritionist intern, Ms Rachel Lee, and a receptionist, Ms Nardine Michael, who both worked during the time the complainant attended.

Ms Michael gave evidence that she had worked for “the Back Guys” on Tuesdays from January to March 2019. Ms Michael recalled the complainant attending a few times with a man, with whom Ms Michael would chat and laugh. Ms Michael estimated that the complainant attended three times while she was there (25/3/21; T 958.35-36; T 960.33-35). (Pausing here, if the man who attended with the complainant was Mr Cotterell, this places the times when Ms Michael was working at the clinic and the complainant attended as being the initial appointments in respect of which there were no criminal charges; and it is not suggested that Mr Cotterell attended on 5 March 2019.) Ms Michael gave evidence that, while she never interrupted the applicant’s treatments, he had said that if there was ever anything she needed, to feel free to knock and come inside. Ms Michael gave evidence that the reception desk was right outside the treatment rooms and she was able to hear things coming from the rooms, including the applicant moving from one room to another, then the muffled voices of the applicant and patients in each room. Ms Michael never heard a female voice yelling out “no, no, no” or “yes, yes”. Ms Michael gave evidence that she thought 5 March 2019 was her final day. Ms Michael recalled the complainant being there, bowing and leaving. (This is the appointment that the complainant did not recall attending (25/3/21; T 960.25-29; T 962.5; T 962.22-27).)

Ms Lee gave evidence that she had worked at “the Back Guys” from December 2018 to March 2019. From the reception, with the treatment door closed, she could hear mumbled conversations in both the rooms. Patients were scheduled in 15 minute blocks, often side by side, with one patient in each room for 15 minutes (26/3/21; T 1008.42-46). Ms Lee recalled the complainant attending on two occasions with a gentleman, with whom she was conversing in English. Ms Lee gave evidence that the applicant came out with patients at the end of the appointments most of the time. The applicant spoke with the complainant after her appointments briefly, regarding prices and booking the next appointment. Nothing stood out about the complainant before she left reception, just that she bowed and said “thank you” quite often (26/3/21; T 1006.41-43; T 1008.23-24).

In closing submissions, the Crown submitted that the applicant had taken advantage of the complainant who was ‘‘vulnerable”. The Crown submitted that, at first, the complainant thought the offending might have been a mistake, or how things operated in Australia, in addition to thinking that the applicant was a medical doctor and that some of the things that initially occurred were legitimate treatment (9/3/22; T 440).

Defence counsel in closing submissions argued that anyone in the position of the complainant would recognise the applicant’s alleged conduct as “problematic”, and would likely resist or protest immediately, even if English was not their first language. It was submitted that it made no sense to say that the complainant thought it was all part of the treatment. Defence counsel for the applicant asked the jury to consider how the complainant perceived what was alleged, in light of her training and experience. (In this Court it is submitted that this submission would have carried greater weight had the jury been aware of the complainant’s work as a masseuse in Japan and in Australia (10/3/22; T 486).)

Defence counsel submitted that this was particularly so in light of the repeated alleged offending; and that the complainant’s justification that she had resolved to put up with it would not be accepted (10/3/22; T 486). The applicant’s evidence as to his treatment of the area above the sacrum was repeated to the jury in this context (10/3/22; T 492). It was further submitted that the complainant was not unfamiliar with the culture in Australia concerning massage, in light of two massage treatments given by other practitioners prior to the applicant, which also involved taking off her clothing (14/3/22; T 512). (The applicant here says that the jury would very likely have assessed these submissions differently had they been properly informed of the complainant’s work as a masseuse.)

Turning now to the respective grounds of appeal (set out above), the first relates to the exclusion by Woodburne SC DCJ in the first trial of evidence relating to the complainant’s employment in Australia in a registered brothel; which ruling was not reagitated in the second trial.

During the first trial, the applicant made two applications to cross-examine the complainant on evidence which fell within s 293(3) of the Criminal Procedure Act.

At the time of the first trial, s 293 of the Criminal Procedure Act (now s 294CB) relevantly provided as follows:

There is no dispute that the charged offences were “prescribed sexual offences” within the definition in s 3(1) of the Criminal Procedure Act.

The first application was made on the first day of the trial (22 February 2021).

The application was made in circumstances where defence had obtained information that the complainant had at relevant times worked in the sex industry in a registered brothel, the “Ginza Club” (see first s 293 judgment 24/2/21; T 6).

The application was initially brought under both ss 293(4) and (6). Later, in oral submissions, the application under s 293(6) was withdrawn and the application was continued pursuant to s 293(4) only (voir dire MFI 2, first trial, 19/2/21; 22/2/21; T 15.45-48).

The Crown tendered a voir dire bundle, tendered as voir dire Ex 1. The submissions on behalf of the applicant were marked as voir dire MFI 2, and the Crown submissions opposing leave were marked as voir dire MFI 3. Oral submissions were heard on 22 February 2021 (22/2/21; T 8.3; T 17.20).

Defence counsel submitted that the evidence sought to be led fell within s 293(4) as a result of the connection between the complainant and Mr Cotterell arising out of Mr Cotterell having located the applicant and sought out his services for the complainant, and then having paid for treatment for the complainant, in circumstances where Mr Cotterell and the complainant were connected through the complainant’s work as an escort. Counsel submitted that, but for Mr Cotterell’s involvement, the complainant would never have met the applicant (22/2/21; T 8-T 12.13).

The evidence that the defence sought leave to admit (see 19/2/21, T 7.38-10.46) was: evidence from Mr Cotterell that he met the complainant through her work as an escort (as detailed in his statement of 31 July 2019); the nature of the services between Mr Cotterell and the complainant, as referred to in his statement, namely adducing evidence as to the circumstances in which he met the complainant; evidence that the complainant had provided an address on her visa application that was the address of a registered brothel in Surry Hills; and evidence from the complainant concerning the rules and procedures of the escort work in which she was engaged.

In particular, the defence indicated that it was sought to establish (see voir dire MFI 2; 19/2/21) in submissions the following matters.

First, that the nature of the complainant’s legitimate employment within the sex industry (and at appropriately registered premises) would require her compliance with workplace rules and management guidelines regarding her dealings and interactions with clients and staff – as well as her rights relating to the same. Defence counsel indicated that what the defence sought to establish by that evidence was that “as a masseuse [the complainant] would know what proper boundaries are in delivering and/or receiving treatment”; “because of the analogy that one can draw between the nature of intimacy involved in work as a sex worker and the nature of intimacy involved in work as a chiropractor that it is likely that she would be operating in an environment where there were, for want of a better expression, rules of engagement, management rules, management directions, house rules and the like” (22/2/21; T 8.41-48).

Second, that the nature of the complainant’s employment would require her to be cognisant of the clear parameters of any contract for services with clients, given the specific services to be provided and the direct and personal/intimate nature of same.

Third, that the complainant would have been well aware of the issues of consent, and well versed in how she could withdraw consent or convey objection to particular conduct of a client. It was submitted that it was more likely that if the complainant was “familiar with working in such an environment she would more readily voice her opposition when she observed a breach herself as the person receiving the treatment” (22/2/21; T 9.24-29). Defence counsel indicated that “we seek to draw a parallel between the three situations, her knowledge as a therapist, her knowledge as a sex worker in an establishment and her knowledge of receiving chiropractic treatment in Japan. And that she would have been well aware, given the sum total of all of those experiences, of what was outside the bounds of appropriate behaviour. And if she would perceive any step over the line it is likely, given her experience in those circumstances, that she would have spoken up” (22/2/21; T 9-10).

Fourth, the process by which the complainant would be required to notify her employer about breaches by her clients of rules, guidelines, parameters of the contract(s) for services, and conduct.

As to the probative value of the evidence, this was submitted to be, first, that as a masseuse, the complainant would know the proper boundaries in delivering and receiving such treatment; and, second, that, because of the intimacy involved in being a sex worker, it was likely that there would be “rules of engagement, management rules, management directions, house rules and the like” which as an escort, the complainant would “immediately recognise any action by any client that was outside the bounds of delivering her service” (22/2/21; T 8.41-T 9.2).

Defence counsel submitted that the complainant continued to receive treatment from the applicant, in circumstances where she asserted that there were breaches of the terms of service, with which she would be more familiar, from working in such an environment; further, that, as a result, the complainant would more readily voice her opposition where she observed a breach herself while receiving treatment. Defence counsel argued that it appeared extraordinary that the complainant would keep attending for treatment over months, in the context where she worked as an escort, had been introduced to the applicant by Mr Cotterell, to whom it appeared likely she had delivered a sexual service, and in circumstances where she had discussed with Mr Cotterell what she thought to be inappropriate behaviour whilst receiving the chiropractic treatment. Defence counsel said this was also in the context where the complainant had been trained as a masseuse in Bali. Further, it was submitted that in light of the complainant’s experience as a masseuse/massage therapist and sex worker, who had also received chiropractic treatment in Japan, the complainant would have been well aware of what was outside the bounds of appropriate behaviour and would have spoken up (22/2/21; T 9.43-T 10.35).

Defence counsel in oral submissions also identified the probative value of the evidence as being to aid a submission to the effect that the complainant was unlikely to have accepted the alleged behaviour “in circumstances where she was working as a sex worker in a regulated environment” and, similarly that the offences “did not occur, because she was in a special position where she had knowledge about when someone should speak up about inappropriate behaviour … because of her employment she was uniquely equipped to identify boundaries in terms of consent and appropriateness” (22/2/21; T 12.37-40; 13.13-15).

It was also submitted that the credibility of the complainant was thereby impugned (voir dire MFI 2, first trial, 19/2/21) and that this evidence “allows us to put, effectively, to the jury that her credibility is impugned by that set of circumstances”. Defence counsel said he wished to challenge evidence anticipated by the complainant to the effect that she was “unable to communicate her concerns to the accused” (22/2/21; T 14.3-4).

Defence counsel clarified that no questions would be asked as to the details of the complainant’s work, only the rules that applied to her work (22/2/21; T 10.41-46).

Defence counsel submitted that the defence case was that the alleged offences did not occur, and that, if they did occur, that the complainant was in a “special position” because she had knowledge about when someone should speak up about inappropriate behaviour (22/2/21; T 13.11-15). The defence sought to challenge the complainant’s evidence that she did not know what to say or how to say anything, was unable to express herself in English, accepted the alleged offending as part of the treatment and was not sure whether or when she felt a finger go into her vagina, or whether it was an accident. The defence submitted that the complainant had continued in her work as an escort throughout the time she was receiving treatment from the applicant, which was relevant in challenging the fact that she had attended twelve sessions following the first alleged offending (22/2/21; T 8).

The “connected set of circumstances” relied on by the defence (for the purposes of s 293(4)) was the connection of the complainant with the address of the registered brothel in Surry Hills, that Mr Cotterell had met her while she was working as an escort, that he had located the applicant, attended upon the applicant with the complainant, and that the complainant had made a complaint to him about the applicant (22/2021; T 11.37-40; 13.38-14.1). It was submitted that a Basha enquiry (R v Basha (1989) 39 A Crim R 337) should be held with Mr Cotterell to clarify the evidence he was able to give, in light of what it was submitted were actions by Mr Cotterell informed by what was said to be his relationship with the complainant, such as paying for her treatment.

The Crown opposed the application (voir dire MFI 3, 19/2/21 at [8]).

I interpose here to note that the Crown points out that, in this Court, the applicant submits that the defence sought to challenge the complainant’s evidence that she “wasn’t sure whether or when she felt a finger go into her vagina, or whether it was an accident” (referring to the applicant’s submissions at [52]). The Crown says that the submission in the first trial was, rather, that “[s]he said that when she felt a finger go into her vagina she wasn’t sure if it was an accident, and so on and so forth” (22/2/21; T 8.23-30).

The Crown submitted that there was no connecting set of circumstances, nor any temporal connection required to satisfy that the complainant was an escort at or about the time of the alleged offences. It submitted that there were no employment records from the brothel at that stage in evidence, nor was there any evidence of the complainant being a sex worker, or as to any evidence of “rules of service”, in that her evidence was that she was a part-time masseuse; and the Crown submitted that how the complainant met Mr Cotterell was irrelevant. The Crown further submitted that the distress, humiliation or embarrassment in regard to this issue would be great, and would outweigh any purported probative value. It was submitted that the defence would have plenty of opportunity to examine the complainant about why she attended the 17 appointments, which it submitted could be explained by the cultural differences between Australia and Japan (22/2/21; T 18-19).

Defence counsel said that he did not believe it necessary to seek leave to ask the complainant about her qualifications in Bali and her previous work as a masseuse but that, if required, he would seek leave to cross-examine about the complainant’s knowledge, and how she could judge treatment that was appropriate or inappropriate. Defence counsel also disagreed with the proposition that being an escort was equivalent to being a masseuse. It was submitted that the complainant could be asked in a Basha enquiry what her employment as a “masseuse” referred to, in order to clarify whether leave was required under s 293 (22/2/21; T 19).

The Crown objected to any cross-examination concerning the complainant’s massage qualifications from Bali under s 293 and s 41 of the Evidence Act 1995 (NSW) (Evidence Act), arguing that it was an improper question (22/2/21; T 22.17-23).

Woodburne SC DCJ determined that the evidence was not admissible and dismissed the application (24/2/21; T 16).

Her Honour observed that the Crown’s position was that it had no intention of adducing evidence of the complainant’s employment as a “masseuse”, nor Mr Cotterell’s evidence that he met the complainant when she was working as an escort. In light of this position of the Crown, and the line of case law from Taleb v The Queen [2015] NSWCCA 105 at [22], her Honour held that s 293(6) of the Criminal Procedure Act had no application. (As noted, the defence did not ultimately press the application under that sub-section (24/2/21; T 2; T 4).)

In regard to the application pursuant to s 293(4), her Honour observed that the defence application was seeking to cross-examine the complainant as to the following: that the complainant was familiar with working in an environment involving personal intimacy; that her work rules required her to report to her employer any breach of house rules by her clients; and that the unique nature of the complainant’s legitimate sex industry work would make her abundantly aware of sexually appropriate and inappropriate conduct, what is or is not within the ambit of conduct contemplated in a contractual arrangement for personal services between individuals (i.e., conduct to which she has or has not consented), and, moreover, what is innocent or accidental conduct as opposed to sexual misconduct (24/2/21; T 7-8).

Her Honour noted that this was in the context that the defence case was that none of the alleged offences occurred, and said that such a submission would be available on the facts of the matter whether or not leave was granted under s 293 (24/2/21; T 8).

In considering relevance, her Honour observed that there was difficulty identifying the particular evidence, and ambit of the evidence, concerning matters asserted by the defence. Her Honour noted that at the time of the application there was no evidence to establish that the complainant was a sex worker (as distinct from an escort) (24/2/21; T 9), observing that Mr Cotterell’s evidence of meeting the complainant, when she was working as an “escort”, was not necessarily synonymous with her being a sex worker. Her Honour said that the complainant’s evidence that she had worked as a masseuse, in Japan and casually in Australia, could not be taken to be assumed to be a reference to being a sex worker (24/2/21; T 9-10).

Her Honour said that nor was there evidence of rules that may operate in such workplaces or as to the nature of her employment concerning its parameters (24/2/21; T 10-11). Her Honour said that the matters asserted on behalf of the applicant were “laden with assumptions of which there is no evidence”, and were not logically probative of the facts in issue (24/2/21; T 11-12).

Her Honour observed that there was no evidence about rules said to operate in appropriately registered premises, regarding dealings and interactions between clients and staff, nor as to what the nature of such employment would require the complainant to be cognisant of; and that there was no evidence of what the complainant would be required to notify her employer of or any such processes. Her Honour did not find evidence as to the “unique nature of legitimate sex industry work” that would make the complainant aware of sexually appropriate or inappropriate conduct, that she had or had not consented to, or what was innocent, or incidental conduct as opposed to sexual misconduct (24/2/21; T 11).

Her Honour found that the comparison sought to be made between knowledge of workplace rules and therapeutic boundaries in receiving chiropractic treatment was a false one, observing that the matters submitted upon were not logically probative of the fact in issue in the proceedings. Her Honour outlined that it had not been explained how, by the asserted employment, the complainant would be specifically equipped to identify the fact that a doctor was proceeding beyond the bounds of what was accepted therapeutic massage to be administered by a chiropractor; and, despite a lack of English skills, would be specifically equipped to articulate and voice her concerns. Her Honour found that it was not demonstrated that the evidence could have a logical bearing on the issues at trial, and found that it was not relevant (24/2/21; T 11-T 13).

Her Honour noted that if the test of relevance was in fact met, then she would have to have regard to s 293(4)(a)(i) and (ii), and if that was satisfied, would be required to determine whether the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of the admission of that evidence (24/2/21; T 12-T 13).

Her Honour observed that, even if the complainant had worked as a sex worker, there was no evidence that the work was conducted “at or about the time” of the commission of the alleged offences. Further, even if such evidence existed, her Honour rejected the submission that s 293(4)(a)(ii) was satisfied because of Mr Cotterell’s disclosure of how he met the complainant, his attendances with the complainant, and his payment for some of the appointments, and rejected that such evidence might form part of a “connected set of circumstances”. Her Honour noted the authorities requiring broad construction of the section in the interests of an accused, but found that these factors did not make the fact or the nature of her employment either relevant or part of a connected set of circumstances (24/2/21; T 14-15).

Her Honour held that even if it was part of a connected set of circumstances, the complainant’s employment as a sex worker (if she was so employed) was of insufficient value to outweigh any distress, humiliation or embarrassment which the complainant might suffer. Her Honour found that the assessment of the probative value of such evidence, if any, was extremely low, and that it would cause the complainant a high degree of stress, humiliation and embarrassment, such that it would outweigh the low probative value of the evidence. Her Honour said, in relation to the complainant’s work as a masseuse, that cross-examination would need to extend beyond the “label” to the nature of that work and whether it involved sex work, and then to the details of what the sex work involved. Her Honour held that the probative value of that evidence did not or would not outweigh any distress, humiliation or embarrassment that the complainant may suffer. Her Honour therefore refused the application by the defence seeking to adduce the complainant was a sex worker (24/2/21; T 14-T 15).

In conclusion, Woodburne SC DCJ said that (as adverted to above), in any event, there was no evidence the complainant worked as a sex worker “at or about the time” of the commission of the alleged offence(s) (24/2/21; T 13); and that the manner of meeting through Mr Cotterell did not form “part of a connected set of circumstances in which the alleged sexual offences were committed” (24/2/21; T 14-15). Her Honour said that the proposed cross-examination would cause the complainant a high degree of stress, humiliation and embarrassment that would “well outweigh the low probative value of the evidence” (24/2/21; T 15-16); and similarly in relation to work as a masseuse, as the cross-examination would need to extend to whether that involved sex work (24/2/21; T 16).

The applicant takes no issue with the dismissal by Woodburne SC DCJ of the first application.

Following judgment on the first s 293 application, the Crown raised a question in the absence of the jury as to whether her Honour’s ruling related to evidence as to the massage course undertaken by the complainant in Bali; and to work as a masseuse in Japan. Defence counsel identified the perceived relevance of the Bali course as being familiarity with massage, in that it goes to the complainant’s perception of what she described as a massage that was inappropriate (see 24/2/21; T 13).

Woodburne SC DCJ considered that the comparison sought to be made based upon the complainant’s asserted employment, her knowledge of her workplace rules and the therapeutic boundaries in receiving chiropractic treatment was a false one. Ultimately, her Honour indicated that she would permit questions on the Balinese qualification subject to it not being a qualification as to sex work (24/2/21; T 17).

This led to an additional statement being obtained from the complainant as to the nature of the course she had undertaken in Bali.

At trial, the complainant confirmed her understanding that chiropractic treatment is different from relaxation massage (see 4/3/21; T 233.43-45).

On 11 March 2021, at the beginning of the thirteenth day of the first trial, defence counsel made a further application pursuant to s 293(4), arising by reference to cross-examination of the complainant the day before (see 11/3/21 T 360). By this time, the defence had obtained evidence on subpoena from the Ginza Club (see below) on which the defence sought to rely, among other things, to establish that the complainant worked at the brothel at or about the time of the offences.

The evidence given by the complainant to which defence counsel referred (10/3/21; T 351.27-38) was as follows:

Defence counsel submitted that the statement that the complainant was not comfortable showing her own underwear to strangers, regardless of their sex, was false, based upon documents produced by the Ginza Club in response to a subpoena issued at the request of the defence; and a printout of pages of the Ginza Club website (MFI 19; MFI 20) (11/3/21; T 360.49-T 361.7).

The subpoena documents included what were described as “work shifts emails” (see letter dated 1 March 2021), which referred to the complainant by a pseudonym (MFI 19). The Crown said that the documents appeared to be lists of emails received from various persons; and submitted that their proper interpretation was not clear, although the Crown accepted that the apparent time blocks appeared to suggest some form of roster. The Crown, however, said that there was no indication that the date on which an email was sent was the same day as the shifts indicated in an email was to be worked; that the emails may, for instance, have been sent the day before the relevant shift (AT 39.33-40.47).

Defence counsel applied to be permitted, in re-agitation of the first s 293 application, to cross-examine the complainant about the impugned answer (as to her feeling uncomfortable about showing strangers her underwear), submitting that otherwise the jury would have a “completely false picture” of the complainant; and that there was a “strong inference” she had lied (11/3/21; T 360.49-361.5). Defence counsel said the defence was seeking to highlight what it maintained was a “blatant lie”.

Defence counsel contended that the only conclusion from the website was that the complainant could be comfortable showing underwear to strangers (11/3/21; T 361.9-12); and said that “[o]ne would assume that in the carrying out of [sex] work that one would have to be [comfortable in showing strangers their underwear]” and that “I’m told that it’s a full service establishment, it’s not just a massage as such” (11/3/21; T 361.21-362.26); MFI 21 (further Ginza Club printout). This submission was based on the document reflecting that the Ginza Club was a “full service establishment”, providing “GFE” (or “girlfriend experiences”) and “PSE” (or “porn star experiences”).

The Crown again opposed the application (11/3/21; T 362.46-47). The Crown further submitted that the complainant’s answer to the question on 10 March 2021 (see above) was referring to her having attended other massage establishments as well, and that there was nothing to suggest that what was said was a complete lie (11/3/21; T 362.46-T 363.10).

Defence counsel submitted that the complainant was taking advantage of being told that the applicant was not able to ask her questions about her employment. The defence suggested that the application may involve asking the complainant questions on the voir dire so that her Honour could make a better judgment as to the nature of the application. (Complaint is here made that at the end of that day, her Honour proceeded to give judgment in the application without a Basha enquiry) (11/3/21; T 364.32-38; T 365.33-37).

Woodburne SC DCJ concluded that the evidence was not admissible and dismissed the second s 293 application. Her Honour said that the “false picture was not otherwise identified” but that it appeared the picture that the defence sought to have before the jury was that the complainant was a sex worker (11/3/21; T 3). Her Honour observed that the copy of the complainant’s “work shift” emails reflected that the complainant worked on 14, 26, 27 and 28 December 2018, before the first appointment with the applicant (11/3/21; T 4).

Her Honour determined that evidence that the complainant had worked at the Ginza Club and/or performed sex work and/or that her employer displayed photos of her posing in underwear on the Ginza Club website was irrelevant (11/3/21; T 5).

Her Honour observed that there was no evidence before the Court as to what was encompassed in a “girlfriend experience”, but proceeded on the basis that the complainant was a sex worker (11/3/21; T 9-10).

Her Honour held that the evidence that the complainant lied on oath was credibility evidence and considered the exception under s 103(2) of the Evidence Act (11/3/21; T 5-6).

Her Honour observed that the evidence produced did not tend to prove that the complainant knowingly or recklessly made a false representation, and that the suggestion that the complainant told a blatant lie was an assumption that a person who works in an establishment that provides full sexual services and who is shown by their employer on a website posing in their underwear, must necessarily feel comfortable showing their own underwear to strangers, which her Honour did not accept. Her Honour further said that, in her assessment, the evidence could not substantially affect the assessment of the credibility of the complainant (11/3/21; T 5-6).

Her Honour went on to say that, assuming the proposed cross-examination was relevant, and fell within the exception in s 103 of the Evidence Act, s 293 would still have to be overcome, assuming the application was made under s 293(4) (11/3/21; T 8-9).

Her Honour observed that the Ginza Club records showed only one shift in that period, being 1 April 2019, between the 16th appointment (on the Crown case) on 28 March 2019 and the 17th appointment (on the Crown case) on 4 April 2019. Her Honour said the remaining shifts took place on dates four months or more, well after (in September 2019) the indictment period. (Her Honour’s observations as to the dates the complainant worked during the indictment period were incorrect, as was raised with her Honour on the morning following the judgment being handed down – see below.)

As to s 293(4)(a)(i), her Honour (incorrectly in terms of numbers, as adverted to above) noted the shifts shown in the indictment period.

Her Honour further observed that there was no specific evidence that the complainant took part in sexual activity on the shift of 1 April 2019. Assuming such evidence existed and fell within s 293(4)(a)(i), her Honour observed that no further submissions had been made as to s 293(4)(a)(ii), and that the required connectedness had not been shown. Her Honour held that, if she was wrong, the probative value of the evidence did not outweigh any distress, humiliation or embarrassment that the complainant might suffer, and held that the evidence was not admissible. Her Honour further said that she did not accept any suggestion that the witness had answered the question in a particular way, knowing that she could not be tested on it, as there was nothing to suggest that the complainant had any understanding sufficient to have taken that calculated risk, and rejected any basis for the suggestion (11/3/21; T 10).

Her Honour considered that, even if the complainant had taken part in sexual activity at the Ginza Club “at or about the time of the commission of the alleged prescribed offence”, s 293(4)(a)(ii) was not satisfied as the required connectedness had not been shown (11/3/21; T 10).

He Honour refused the defence’s application for a voir dire, observing that if it was established that the complainant had been working as a sex worker, that evidence was inadmissible under s 293, resulting in there being no utility in a voir dire, and it would only operate to cause distress, humiliation and embarrassment (11/3/21; T 11).

On 12 March 2021, the morning following the second s 293 judgment, the defence raised that her Honour had referred incorrectly to the dates that the complainant had worked at the Ginza Club, recorded in MFI 19. The dates were written in Japanese, or American format; and therefore where her Honour had referred to “1/4/19” as “1 April 2019”, it in fact referred to 4 January 2019. The defence submitted that, when read correctly, the complainant had worked eight shifts before her first appointment with the applicant; and that the complainant worked 15 shifts during the period of time when the complainant attended upon the applicant (starting with the date of Count 1, on 31 January 2019, and 11 dates during the period of the indictment) (12/3/21; T 409.1-44).

Specifically, the applicant said that the documents indicated that the complainant worked after the following appointments with the applicant: 24 January 2019 (in regard to which there were no alleged offences); 5 March 2019 (in regard to which there were no alleged offences and notes this being an appointment that the complainant denied attending); 7 March 2019, when it was alleged that Count 9 was committed; 21 March 2019, when it was alleged that Count 11 was committed; and 28 March 2019, when it was alleged that Count 12 was committed (12/3/21; T 409.40-410.50).

Her Honour observed that she had assumed for the purposes of the argument that the date of 1 April 2019 to which she had previously referred, together with the earlier dates, had fallen sufficiently within the description of “at or about the time” of the commission of the alleged offences.

Her Honour held that the proper understanding of the dates did not detract from the finding that she had already made and that it supported that consideration. Her Honour found that it did not change her position, observing that it fortified her having proceeded on the basis that she did (12/3/21; 411.12-19).

The defence did not ask her Honour further to revisit her judgment, nor did the defence re-agitate or make further submissions under s 293 during the second trial.

In written submissions, the applicant identified a number of “themes” within the complainant’s evidence which the applicant submits are relevant to the considerations under s 293(4) and to which it is submitted that the evidence sought to be tendered (i.e., concerning the nature of the complainant’s work as an escort and any work the complainant had conducted in Australia as a masseuse) was relevant and which may have resulted in the jury assessing the complainant’s credibility or reliability differently.

The first of those themes was that the complainant was not aware of cultural customs in Australia concerning massage or treatment, and for this reason was not sure if the alleged offences by the applicant were normal parts of massage treatment, which provided part of the complainant’s explanation as to why she continued to attend on the applicant. One example given of this was the repeated reference to “pressure points”, in the context of what she asserted was “acupressure” treatment, concerning Counts 9 to 11, in the complainant’s evidence and Ex M. The applicant says that the jury’s consideration of the credibility of this evidence would have been informed by the level of experience of the person giving the evidence; that the jury might have considered that such evidence coming from a lay person was compelling, but may not have found such evidence compelling where coming from a person who not only had a qualification as a masseuse from Bali and had worked as a masseuse in Japan but who also may have been working, or had worked, as a masseuse in Australia.

Second, that the complainant lacked the ability to communicate in English to stop the applicant from allegedly offending or continuing to offend, to express her lack of consent or to question him.

Third, the complainant’s evidence as to her being unsure if the applicant had touched her anus or inserted his finger into her anus, and whether the “soft” thing that allegedly touched her anus was the applicant’s tongue or something else.

Fourth, the complainant’s evidence that she was uncomfortable showing her underwear to anyone, regardless of their sex.

The applicant submits that the above four areas of evidence would have been assessed differently, had the jury have been aware that the complainant worked as an escort in a licensed brothel, was advertised in her underwear on the website, and provided “girlfriend experiences”. It is submitted that the evidence of the complainant working as an escort at the Ginza Club, during the period of the alleged offending, the nature of her work at the Club, and how she was advertised, should have been held to have had probative value in how it may have affected the jury’s assessment of the complainant’s credibility and reliability.

Fifth, the evidence that the complainant attended work after appointments with the applicant, on 24 January 2019, 5 March 2019 (the disputed appointment), 7 March 2019 (the date on which she alleged that the applicant committed Count 9), 21 March 2019 (the date on which the applicant allegedly committed Count 11) and 28 March 2019 (the date on which the applicant allegedly committed Count 12). It is submitted that the jury may have assessed the credibility of the complainant, and the issue of delayed complaint, differently had this evidence been placed before them; that the jury may have considered whether it was likely that the complainant would attend work as an escort if she had been offended against in the manner alleged, without making any complaint, in accordance with the complaint directions provided.

Sixth, the complainant’s evidence that she continued to attend for treatment, despite the alleged offending, for a number of different reasons (including difficulties with sleeping, stress and physical pain from her back). The applicant complains that the jury was left to assess this evidence in the broader context of the complainant only attending class to study English twice a week. It is said that the only reference to the complainant’s “work” was made briefly in cross-examination, with the nature of the work not detailed. It is submitted that the jury may have assessed the credibility of the complainant’s evidence about the difficulties in her life in a different way, in the context of the complainant also allegedly working as an escort and/or masseuse.

Seventh, reference is made to the challenge to the complainant in cross-examination as to her attending work after appointments with the applicant on 24 January, 5 March, 7 March, 21 March and 28 March 2019. It is noted that the complainant gave evidence that she did not think she had attended an appointment with the applicant on 5 March 2019. The applicant says that the cross-examination on this topic was very limited as a result. It is said that, as a result of the s 293 rulings, counsel was unable to tender the Ginza Club records showing that the complainant’s evidence was inaccurate or untruthful, depriving the jury the opportunity properly to assess the complainant’s credibility and reliability.

Further, the applicant says that the complainant’s experience in massage in Bali and Japan was raised by the Crown in examination in chief of the complainant, despite Woodburne SC DCJ’s initial s 293 ruling. It is submitted that the leading of that selective evidence functioned to create unfairness, in circumstances where the defence was unable to cross-examine as to the complainant working, or not working, as a masseuse in Australia. The applicant says that it may have created for the jury the incorrect impression that the complainant had been trained in Bali and had worked as a masseuse only in Japan, not in Australia; and that incorrect information may have been used by the jury to draw inferences as to the complainant’s level of understanding, or absence of understanding, about the conduct or provision of massage in Australia, absent any knowledge as to her work as a masseuse in Australia. The applicant says that this was of further concern in light of the complainant’s evidence as to her purported lack of understanding as to what was culturally normal or abnormal in regard to massage treatment in Australia. Further, the applicant says that the complainant gave evidence that this lack of understanding informed her response to the alleged offences and why she continued to attend upon the applicant, despite the alleged offending.

The applicant argues that the jury would have assessed these submissions very differently had the jury been aware of the matters addressed above. It is submitted that the jury was provided with an inaccurate and incomplete picture of the complainant, to use when assessing her credibility, her reliability and the Crown case more broadly.

The applicant complains that, in light of the s 293 ruling, the defence submissions in challenge to the Crown submissions, in seeking to contend that the complainant would have known that the alleged offences were not proper health related treatment, had to be cast at a wide level of generality and limited expertise. The applicant says that defence counsel was unable to ask the jury to consider whether they found it reliable or credible that a person employed as an escort, and who had been, or was also, employed as a masseuse in Australia, would have thought that the alleged offending was proper health related treatment, was culturally Australian, or could have occurred accidentally.

It is submitted that there is a level of artificiality to the restriction placed on the defence in this regard, where there was evidence before the Court on the second s 293 application that the complainant had experience in receiving chiropractic and massage treatment in the past in Japan, was also a masseuse accredited in Bali who had worked as a masseuse in Japan and Australia, and who was working as an escort during the indictment period. It is submitted that these facts would have had a significant bearing on the jury’s consideration of the complainant’s credibility and reliability, and in the jury’s consideration of the evidence of complaint, in light of the directions. Pausing here, in final submissions on the appeal, Counsel for the applicant corrected this in saying that there was no evidence before the Court that the complainant had worked as a masseuse in Japan (as opposed to having had massages in Japan) (see AT 4.21).

It is submitted that this evidence may also have influenced how the jury assessed the evidence of the applicant as to the events on Valentine’s Day and the complainant’s denials in regard to those events. The applicant submits that it may have cast the jury’s consideration of those events in a different light, had they been aware that the complainant was either or both a qualified masseuse and a person working as an escort at the time, particularly in light of this occurring on the same day that the complainant had a falling out with Mr Cotterell, with whom she had formed a relationship while working as an escort.

In written submissions, the applicant says that, at the time of the second ruling on the defence application pursuant to s 293(4), in light of the circumstances that existed or were then known, the jury may have considered the evidence sought to be tendered capable of establishing the following facts: the complainant had stated in her visa documentation that she would be working as a masseuse in Australia; the complainant had told police that she was working casually as a masseuse in Australia; the complainant used the address of the Ginza Club as her address on her visa documentation; the Ginza Club was a registered brothel; the complainant was employed at the Ginza Club under a particular name (shown on the work shifts emails); the Ginza Club’s advertised services including “full service”, “girlfriend experiences” and “porn star experiences”; the complainant had posed for a photograph in her underwear that was used on the website for the Ginza Club; the complainant was advertised by the Ginza Club as offering a “GFE” or “girlfriend experience”; the complainant met Mr Cotterell through her work at the Ginza Club; the complainant worked shifts at the Ginza Club prior to and during the period of the indictment; and the complainant worked shifts at the Ginza Club following appointments in which it was alleged that Counts 9, 11 and 12 had allegedly been committed, wherein it had been alleged that the complainant was sexually touched and/or sexually assaulted. (The Crown points out that the first two of those matters (the visa documentation and statement to police) were not pressed by defence counsel at the trial (16/3/21; T 553).)

The applicant submits that the second judgment of Woodburne SC DCJ, in failing to grant leave pursuant to s 293(4), resulted in an error or irregularity of such a nature and degree that it could realistically have affected the jury verdicts in the second trial.

The applicant says that the evidence from the Ginza Club demonstrates that the complainant worked shifts at the Ginza Club prior to and during the period of the indictment, in January through to March 2019. The applicant says that the complainant’s work at the Ginza Club, in the hours immediately after the commission of the alleged offences on 7 March 2019, 21 March 2019 and 28 March 2019, is part of a “connected set of circumstances”; i.e., it is part of the immediate “aftermath” of the alleged offending in Counts 9, 11 and 12, as well as occurring during the commission of all of the alleged counts on the indictment.

Reliance is placed in this regard on Adams v R [2018] NSWCCA 303 (Adams v R) where Hoeben CJ at CL, Campbell and N Adams JJ agreed (at [148]) that false complaints of sexual assault by the complainant, concerning a different accused, only days before the alleged subject offences, was evidence of the relevant complainant’s sexual experience at “about the time” of the commission of the alleged offences. Reference is also made to the statement of Basten JA in GEH v R [2012] NSWCCA 150 (GEH) at [11] that the focus of the requirement as to the relevant event forming part of “a connected set of circumstances in which the alleged prescribed sexual offence was committed” is the circumstances in which the alleged offence was committed.

It is submitted that, similarly to the case of R v Morgan (1993) 30 NSWLR 543 (Morgan), the evidence that the complainant worked as an escort within hours of the commission of the alleged offences in Counts 9, 11 and 12 could have been seen by the jury as making the occurrence of the offence less likely and should have been held to have formed part of the context in which the alleged offence was committed and against which the complainant’s evidence might reasonably be evaluated.

The applicant argues that the requirements of s 293(4)(ii) (i.e., as to a connected set of circumstances) are also here satisfied (by the evidence available in this matter, the themes in the complainant’s and the Crown’s evidence), in light of the complainant’s work as an escort and the alleged offending.

Accordingly, it is submitted that the evidence sought to be tendered by the applicant with leave, fell within the ordinary meanings of each of ss 293(4)(a)(i) and (ii).

The applicant argues that the evidence sought to be tendered was relevant to facts in issue at the trial and had probative value. The applicant submits that the evidence provides contextual background to the evidence given by the complainant in regard to, among other things: the complainant’s ability to discern whether and how she was in fact allegedly touched or penetrated by the applicant in relation to various counts on the indictment; the complainant’s ability to communicate or express, verbally or non-verbally, consent or concerns in relation to the alleged offending conduct of the applicant.

The applicant says this may also have bearing on the competing evidence as to the complainant’s level of English; the level of purported distress caused to the complainant by the alleged offences by the applicant, in light of the complainant attending work at the Ginza Club after the occurrence of alleged offences in Counts 9, 11 and 12; the theme of the “vulnerability” of the complainant, in the evidence of the complainant and the submissions of the Crown, in light of her purported limited English and her characterisation of herself as a person who did not understand the cultural differences of Australia in regard to massage; and the complainant working in Australia “casually” as a “masseuse”, in circumstances where her evidence was that she did not understand what was culturally appropriate in Australia in regard to massage treatment.

The applicant emphasises that the exclusions from the prohibition in s 293(4) are to be construed liberally (referring to the observation of Leeming JA (with whom Walton J agreed) in Chia v R [2021] NSWCCA 51 (Chia v R) at [56]-[57] and Harrison J (as his Honour then was) in Taylor v The Queen (2009) 78 NSWLR 198; [2009] NSWCCA 180 at [89]); and the applicant also refers to R v Charbel Rahme [2004] NSWCCA 233 (R v Charbel Rahme) at [65] where James J (with whom Sully and Hulme JJ agreed) said (in relation to the predecessor section) that a fair consideration of the assessment of probative value under that section has to be made “of the adumbrated evidence in the event that it were to be accepted by the jury’’.

The applicant submits that, in considering the balancing test as to whether the probative value of the evidence outweighs the distress, humiliation or embarrassment the complainant might suffer, in light of the potential to affect the jury’s considerations of a proper and informed picture of the complainant, the context of the alleged offending and the impact of both upon assessments of the complainant’s credibility, the probative value of the evidence is high in the present case.

In this regard, the applicant points to evidence given by the complainant concerning the following issues in dispute in the trial: the complainant’s comfort or discomfort in removing her clothes in front of strangers of either sex; her denial of the alleged events of 14 February 2019; the complainant’s level of physical perception of whether and how she was allegedly touched or assaulted by the applicant; her alleged distress at the offences; the theme in the complainant’s evidence and the Crown’s address in relation to the complainant’s inability to express herself during the commission of the alleged offences; and the complainant’s denial of working following her appointments with the applicant on 24 January, 5 March, 7 March, 21 March and 28 March 2019 (when the applicant says that the records of the Ginza Club appeared to show that she had in fact worked on those dates).

The applicant submits that the application under s 293(4) was not one seeking to cause the mischief that s 293 was introduced to address (namely, as described by Simpson J (as her Honour then was) in R v Burton [2013] NSWCCA 335 at [70] evidence being led of the “general sexual willingness of the complainant” in the context of cases where consent was at issue). The applicant notes that Leeming JA in Chia v R observed (at [64]) that the relevant distress, humiliation and embarrassment is that over and above that which will inevitably occur; his Honour there also observing (at [65]) that the fact that complainants’ identities cannot be revealed by reason of statute, and that their evidence is given by an AVL link to a closed Court, tends to diminish the distress, humiliation and embarrassment that the complainant would suffer.

Reliance is also placed on the observations by James J (with whom Sully and Hulme JJ agreed) who said in R v Charbel Rahme at [60], in reference to evidence as to the complainant working as a “prostitute” around the time of the alleged offences that “[i]f, in the circumstances of the particular case, a choice has to be made between that degree of discomforture of the complainant and the potential conviction of an innocent accused, there then can be, surely, no doubting [sic] all of where the preponderant balance should lie”.

It is said that her Honour also erred in refusing to permit the Basha enquiry on the basis that to do so would contravene s 293, that it would have no utility and was a waste of time. The applicant says that it would not contravene s 293, in that it is conducted in the absence of the jury and would not result in admission of the evidence in the jury trial. Further, it is submitted that the utility would have been great in that it would have allowed for the scope and detail of the evidence of the complainant and Mr Cotterell to have been clarified; and would have allowed further evidence to be obtained (in order more fully to inform the balancing test). (The applicant says that the distress, humiliation and embarrassment caused to the complainant would have been limited to the greatest extent possible.)

In the alternative (under Ground 1(b)), it is submitted that, when the entirety of the evidence in the trial is considered, there is a real risk that the trial miscarried, and the applicant lost a real chance of acquittal, by reason of exclusion of the s 293 evidence, because the jury was unable properly to assess the reliability and credibility of the complainant. It is submitted that this can be seen in the limitations on cross-examination of the complainant and Mr Cotterell, the subsequent defence closing submissions, the themes in, and casting of, the complainant’s evidence in the Crown case, and the Crown’s closing address, and the implications that such evidence would have had on the jury’s consideration of the complainant’s reliability and credibility.

The applicant submits that the Court should make the assessment under Ground 1(b) on the basis that the jury accepted the evidence sought to be led pursuant to leave under s 293(4). Consideration should also be given to how the jury may have considered the applicant’s evidence, and in particular his evidence concerning 14 February 2019, the Google Translate messages in Ex L, and the text messages in Exhibits G and H, in light of the Liberato direction given, and how the jury may have considered the complainant’s evidence, in light of the direction from the trial judge as to the requirement for the jury to be satisfied of the complainant’s reliability and credibility beyond [a] reasonable doubt, before the applicant could be found guilty.

It is submitted that evidence of the complainant working as an escort in a registered brothel, during the indictment period, would be important evidence for the jury to weigh, in light of cross-examination that may have explored whether the complainant would have in fact been “entirely incapable” of expressing herself as claimed, in light of the nature of her work and the negotiation inherent within such work, surrounding the boundaries of consent.

Further, the applicant submits that the jury may have also viewed the complainant’s evidence as to her lack of ability to discern whether the applicant was touching or inserting his finger into her anus, and what had touched her anus in Count 12, differently in light of evidence of her working as an escort in the period of the indictment. Evidence as to the nature of the complainant’s work may also have had bearing on the jury’s consideration as to whether the complainant would have in fact done what they would have expected her to have done, when considering the issue of complaint pursuant to the directions given by the trial judge, particularly in light of her attendance at her workplace after the commission of the alleged offences in Counts 9, 11 and 12.

The applicant argues that the challenge to the complainant’s evidence that she was not comfortable being in her underwear in the presence of strangers of either gender, in the context of her being advertised on the website of the Ginza Club in her underwear, and in light of her work as an escort, may also have been viewed very differently by the jury. Similarly, the complainant’s denial of working following some of the appointments with the applicant, had the record of her shifts at the Ginza Club been able to be tendered and put before the jury, may also have affected the jury’s deliberations.

The applicant says that the jury’s consideration of the complainant’s evidence as to why she continued to attend on the applicant for treatment, despite the alleged offending, may also have been assessed in a different light by the jury, had they been informed of the nature of the complainant’s work as an escort, and that the complainant had worked as a masseuse in Australia, particularly in regard to her evidence about her lack of understanding of the culturally appropriate massage treatment in Australia.

It is submitted that a review of the record of the second trial reflects that the error said to have been made by Woodburne SC DCJ in the first trial not only had the capacity for practical injustice, but was capable of affecting the result of the applicant’s second trial. It is submitted that the failure to admit the evidence under s 293(4) resulted in, or constituted, sufficient prejudice to the applicant that a “real chance” of acquittal in regard to the offences on the indictment was lost, resulting in a miscarriage of justice.

The applicant accepts that leave is required pursuant to r 4.15 in the absence of an application pursuant to s 130A in the second trial, to have the earlier s 293 judgments revisited. The applicant submits that, if satisfied as to Ground 1 (a) or (b), then leave under r 4.15 should be granted (reference here being made to the decision of Kirk JA in Park v R [2023] NSWCCA 71 at [104] (with which Walton and Sweeney JJ agreed)) (AT 13.17-31).

As to the application of r 4.15 and the proviso, the applicant (noting Cook (a pseudonym) v R [2022] NSWCCA 282 per Adamson J as her Honour then was, with whom Bellew J agreed) submits that the evidence would have had a substantial bearing on the consideration of the jury in the second trial, emphasising the need for the jury to be satisfied that the complainant was a credible and reliable witness to find the applicant guilty beyond reasonable doubt.

The applicant says that the jury was not able to see how the complainant would have responded to the evidence sought to be tendered (citing Leeming JA (with whom Walton J agreed) in Chia v R at [70] - [71]) and it is submitted that the evidence sought to be led, tendered and put may well have had a bearing on the jury’s consideration of the credibility and reliability of the complainant, and that, in all the circumstances, the possibility cannot be excluded beyond reasonable doubt that the applicant was denied a chance of acquittal, which was fairly open to him, as a result of refusal of leave pursuant to s 293(4) (see Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) at [15]; GEH at [85]).

The applicant accepts that if he succeeds on Ground 1 it will be for the Court to determine whether to order a re-trial, or whether instead, verdicts of acquittal ought to be entered.

The Crown submits that ground 1 is not made out for the following reasons. First, whether or not there was error in application of s 293 in finding the relevant evidence was inadmissible (Ground 1(a)) is immaterial in circumstances where the evidence was inadmissible under ss 55 and/or 56 of the Evidence Act, and further under ss 102 and/or103 of the Evidence Act. Second, Woodburne SC DCJ was not in error in concluding that the relevant evidence was inadmissible pursuant to s 293. Third, that exclusion of the relevant evidence did not have the effect that the jury was unable properly to assess the credibility of the complainant. As to those matters, the Crown submits as follows.

The Crown submits that Woodburne SC DCJ was correct to conclude that evidence that the complainant had worked at the Ginza Club and/or that she performed sex work and/or that her employer displayed photos of her posing in underwear on the Ginza Club website was irrelevant to any fact in issue in the trial. It is noted that in the second trial, the defence contended that no sexual touching or assaults occurred at all (10/3/22; T 476.42-44; defence closing; 14/3/22; T 542.33-34). The Crown says that, while the prosecution was required to prove that the complainant did not consent, it was only if the applicant’s own evidence was rejected that the issue of the complainant’s “ability to be able communicate or express, verbally or non-verbally, consent or concerns” would arise.

The Crown submits that the proposition that the complainant was a sex worker, or related propositions, if accepted, could still not rationally have affected, directly or indirectly, the assessment by the jury of the probability of whether any of the assaults in fact occurred.

Insofar as the applicant here submits that the evidence would have provided “contextual background” to the complainant’s evidence, the Crown argues that none of the ways in which it is asserted it would have done so is capable of rationally affecting the assessment of the probability of the existence of a fact in issue.

First, as to the complainant’s “ability to discern whether and how she was in fact allegedly touched or penetrated by the applicant” and to communicate concerns, the Crown argues that such a submission amounts to a suggestion (based on unidentified assumptions) that a “sex worker” is more able to feel touch or penetration or to communicate consent to sexual touching and penetration than a person who is not paid for sexual activity. The Crown says that such reasoning carries a risk that those who work in sex work or similar industries may be perceived as more able, or ready, to engage consensually in other sexual activity; and that this would erode the protection of the law of victims of sexual offending who work in those industries. The Crown says that there was, and is, no evidence or reasonable inference that work as a “sex worker” would have better enabled the complainant to express dissent or concerns. The Crown says that the applicant’s submission that the evidence would have been relevant to the “theme of the ‘vulnerability’ of the complainant” also ought to be rejected for these reasons.

Second, as to the “level of purported distress caused to the complainant by the alleged offences… [in light of her] attending work at the Ginza Club” after counts 9, 11 and 12 were committed, the Crown points out that the complainant did not think she went to work on those dates (18/3/21; T 611). The Crown says that the premise that the complainant did so is not established but, in any event, even if the complainant did go to work, that is not probative of whether she felt distressed.

Third, as to the reference by the applicant to the complainant “working in Australia ‘casually’ as a ‘masseuse’”, the Crown notes that the application before her Honour was not to cross-examine the complainant about this work.

The Crown submits that Woodburne SC DCJ was correct in determining that the evidence could not substantially affect the jury’s assessment of the complainant’s credibility.

The Crown says that the Ginza Club records sought to be relied upon by the applicant did not tend to prove that the complainant knowingly or recklessly made a false representation (s 103(2)(a) of the Evidence Act). The Crown says that s 103(2) is designed to ensure that evidence relating to a witness’ general honesty is only adduced in cross-examination where there is a proper basis for concluding it has a real bearing on the likely truthfulness of the witness. The Crown says that the Ginza Club material provided no such basis, noting that the applicant himself submits only that it provided “contextual background” (referring to the applicant’s submissions at [106]).

As to s 293(4)(a)(i), the Crown says that the Ginza Club documents did not demonstrate that the complainant worked shifts at the club. The Crown says that the printout of what appear to be email inboxes is not probative of when the complainant actually may have worked; and that, even if the complainant did work at the Ginza Club over that period, that did not “form part of a connected set of circumstances” in which the offending occurred, for the purposes of s 293(4)(a)(ii). The Crown says that contemporaneity does not equate to forming part of a connected set of circumstances; nor does temporality.

As to the connection required by s 293(4)(a)(ii), the Crown points to what was said in GEH by Beech-Jones J (as his Honour then was sitting in the Court of Criminal Appeal) at [82], his Honour there referring to the “narrative of events that led to the offence”, “part of the immediate aftermath” and “a piece of any jigsaw puzzle concerning the ‘set of circumstances’ in which the offence was said to have been committed”. The Crown says that “aftermath” suggests some result, or following on, from an event; and that the complainant’s attendance at work did not result or follow on from the offences. The Crown argues that the applicant’s reliance on Adams v R in this context is misplaced. The Crown says that the temporal connection there spoken of concerned whether a sexual experience was “at or about the time” of the commission of the alleged offence, for the purposes of s 293(4)(a)(i); the Crown referring also in this context to Morgan at 544E (Gleeson CJ as his Honour then was Chief Justice of New South Wales).

The Crown notes that as the nature of the connection is left at large by the statute, the facts and circumstances of each case need to be considered (see Morgan at 544D). The Crown says that Morgan concerned circumstances far removed from the present. There, the complainant complained to her father the day after the offence that an acquaintance had sexual intercourse with her. Within an hour or two after the alleged offence, she went to bed with her boyfriend, allowing an inference that they had sexual intercourse at the time, and she made no complaint to him (Morgan at 551). The Crown says that the event in Morgan had relevance beyond what it might reveal about the complainant’s credit; it concerned an event so connected to the circumstances of the offence that it bore upon the objective likelihood of it having been committed (referring to GEH at [83] per Beech-Jones J).

In R v Charbel Rahme, evidence of the complainant’s previous (apparently voluntary) occupation as a sex worker was found not to be rendered inadmissible by the predecessor of s 293. The appreciable connection was that the appellant was charged with having forced her into prostitution, which was found to go beyond her credit and to “the very heart of the facts in issue at the trial” (R v Charbel Rahme at [59]).

The Crown argues that there are a number of distinguishing features in the present case.

First, whether the complainant actually went to work after any appointment was not established; noting that she did not think she did (cf Morgan). Second, even if she had, there was no appreciable connection between whatever she did at work and the applicant sexually touching or sexually assaulting her during chiropractic treatments (cf R v Charbel Rahme). Third, even if there was a connection, the evidence sought to be adduced by the first and second s 293 applications did not go beyond the complainant’s credit; the Crown says that defence counsel submitted as much (when saying “that allows us to put, effectively, to the jury that her credibility is impugned by that set of circumstances”) (22/2/21; T 10.19-20). It is noted also that in this Court the applicant asserts that the probative value of the evidence lay in the jury’s assessment of the credibility and reliability of the complainant (referring to the applicant’s submissions at [112], [124]); and that Ground 1 is premised upon this (referring to the applicant’s submissions at [88], [109], [112], [115]).

Finally, as to the requirement in s 293(4) that the probative value of the evidence is to outweigh any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission, the Crown says that the evidence was (if relevant at all) of extremely low probative value. The Crown points out Mr Cotterell’s statement included that the complainant’s family did not know of her job and that she believed if they found out, it would disgrace her family (24/2/21; T 15). It is noted that Mr Cotterell initially provided police with false information about how they met, to protect the complainant’s privacy (24/2/21; T 15).

The Crown addresses the applicant’s submissions as to the “themes” in the complainant’s evidence as follows.

The Crown says that evidence of the complainant’s experience as a masseuse (generally) was not excluded and that, when the Crown examined the complainant on this topic, it was not in contravention of a ruling.

The Crown notes that the first s 293 judgment did not address the massage course in Bali, or practice as a masseuse in Japan, because the judgment related to sex work. The Crown says that defence counsel had confirmed that he wished to ask about the complainant’s massage experience in Japan and Bali directed to her understanding of the “boundaries” involved in that work (see 22/2/21; T 21); (24/2/21; T 12.40); (T 13.30-38; T 13.49-14.30); (T 15.15-23; T 15.37-47); (T 16.1-36); (T 17.8). The Crown says that it was not assumed to include sex work (24/2/21; T 13.40-41, T 17-T 18.2-31).

The Crown says the first application was resolved without the need for a ruling, that the complainant could be tested on the Bali and Japan massage experience (provided they did not involve sex work) (24/2/21; T 12; 17-18. The Crown notes that a statement was obtained from the complainant on these matters (24/2/21; T 18.42-19.11) and that the complainant gave evidence in chief and in cross-examination of her massage training and experience in Japan and Bali (25/2/21; T 28-29), 4/3/21; T 226). The Crown points out that in closing address, defence counsel referred to the complainant having gone “into quite a bit of detail” about this (10/3/21; T 491.24).

The Crown says that it appeared that references to the complainant’s masseuse work in Australia may have referred to work as an escort and may have involved sex work. The Crown points out that after the first s 293 judgment, defence counsel raised that he wished to cross-examine about the complainant’s massage work in Australia but, when Woodburne SC DCJ queried its relevance, said that he would not ask about the complainant’s intention to work as a massage therapist in Australia nor would he ask about whether she did work, given that the issue of her work and experience had previously been resolved (3/3/21; T 184.32-T 185.29; T 186.4-41).

Accordingly, the Crown says that the applicant’s complaint of a “level of artificiality” by being prevented from referring to evidence concerning the complainant’s massage work and experience should be rejected.

Insofar as the applicant suggests that, if evidence of the complainant having worked as an escort, and related evidence, had been admitted, evidence to the effect that “she lacked the ability to communicate in English to stop the applicant from allegedly offending or continuing to offend, express her lack of consent or question him” would have been assessed differently by the jury, the Crown says that the central issue at the trial was whether the acts comprising the offences occurred at all, which the applicant denied (i.e., not consent).

Further, the Crown says that limited English ability was not the only reason that the complainant expressed inhibition in “stopping the applicant” from sexually offending against her. The Crown points to the evidence that she was urged to trust the applicant (1/3/21; T 89); she did not want to be rude to a doctor (1/3/21; T 92-93), (T 107-108); the applicant had promised to make her pain better (1/3/21; T 104; T 107-108); there were cultural differences (1/3/21; T 104); and she was shocked and embarrassed (1/3/21; T 112). In any event, the Crown points out that when the complainant did say, in English, “stop” and “no” the applicant disregarded this and persisted (1/3/21; T 112-113).

Insofar as the applicant submits that the complainant’s evidence that she was “unsure if the applicant had touched her anus or inserted his finger into her anus, and whether the ‘soft’ thing that allegedly touched her anus was the applicant’s tongue or something else” would have been assessed differently if the jury had been aware she worked as an escort in a licensed brothel (and of related evidence), the Crown argues that whether the complainant was employed as an escort or sex worker had no bearing upon an assessment of this evidence.

Further, as to the complainant being “unsure”, the Crown points out that the applicant’s evidence on Count 10 was not that she was uncertain about whether the applicant had either touched her anus or inserted his finger into her anus; rather, her uncertainty was as to precisely where around her tailbone he was massaging when his fingers touched her anus and he pushed her anus down (2/3/21; T 146.35-43). It is noted that in relation to Count 9, the complainant gave the following evidence (16/3/21; T 527-T 528):

The Crown says that translating a description of the relevant act into English from Japanese was thus not straightforward. In any event, the Crown argues that whether the applicant’s finger only touched her anus or was inside, is of no moment given the offence charged was of sexual touching.

As to the applicant’s submissions that the complainant attended work after appointments with him during which offences occurred, the Crown says that Ex F (a record of appointments with the applicant) and MFI 19 (the Ginza Club document) do not readily reconcile, and, again, points to the complainant’s evidence that she did not think she went to work after appointments (18/3/21; T 611).

The Crown argues that a submission that the jury may have considered the complainant’s credibility differently if she had attended work after appointments during which an offence was said to have occurred tends to invoke outdated assumptions about the way that victims of sexual offending might behave (referring to Maughan v R [2020] NSWCCA 51 at [2] (RA Hulme J), at [99] (Ierace J); Harper v R [2022] NSWCCA 211 at [118] (Button J); Rao v R [2019] NSWCCA 290 at [98]).

The Crown also points out that defence counsel asked the complainant questions about attending work and says that there was nothing to prevent defence counsel putting to her that she did so despite difficulties with sleeping, stress and physical pain in her back.

The Crown says that the Ginza Club records were emails apparently referring to work shifts, rather than days on which the complainant went to appointments with the applicant; and that it is unclear how those records would have shown the complainant was “inaccurate or untruthful” when she said that she did not think she attended an appointment with the applicant on 5 March 2019.

The Crown maintains that no error was occasioned in the exclusion of evidence that the complainant was a sex worker. However, in the event that this Court were to find error, the Crown submits that in the context of the applicant’s trial the applicant has not established that it was capable of or could realistically have affected the result.

The Crown says that the jury had ample opportunity to assess the credibility and reliability of the complainant, who was in examination in chief for approximately three and a half days (across five days from 25 February to 3 March 2021) and seven days in cross-examination (across nine days from 3 March 2021 to 18 March 2021). It is submitted that examination of the complainant raised humiliating and embarrassing issues, touching on matters such as her having been positioned with her genitals exposed like a baby having a nappy change; of the applicant licking her vagina; and of him digitally penetrating her anus.

It is also submitted that jury directions on appropriate assessment of credibility and reliability served to reduce any risk of miscarriage.

The Crown says that, whatever the extent to which the complainant could express herself in English, evidence of her work as an escort was incapable of having any meaningful bearing on the assessment of her evidence. The Crown says that the applicant’s submissions draw on stereotypes and assumptions rather than probative value; as does the applicant’s similar submission on the complainant’s “so-called” lack of ability to discern precisely what was happening to her during the offending. The Crown says that the submission that evidence of escort work may appropriately have influenced the jury’s consideration of whether the complainant “would in fact have done what they would have expected her to have done”, appears to invite reasoning akin to unsubstantiated “rape myths” which proceed on assumptions of how sexual assault victims are expected to behave; as does the suggestion that the jury may have considered in a different light the complainant’s evidence of why she continued treatment.

The Crown submits that the applicant has not identified matters which, taken separately or together, were of a nature and degree that could realistically have affected the verdicts and thus Ground 1(b) should be dismissed.

It is noted that the applicant concedes that r 4.15 applies. The Crown says that it was incumbent upon the applicant to make an application under s 130A(3) of the Criminal Procedure Act in respect of the second s 293 judgment by Woodburne SC DCJ at the second trial and discharge the onus of contending that it would not be in the interests of justice for the order to be binding (see Hayne v R [2022] NSWCCA 11 at [71]).

The Crown notes that the question of a s 130A(3) application was raised in the second trial, touching on the s 293 ruling by Woodburne SC DCJ (2/3/22; T 262.39-42, T 267.24-25, T 268.5-6, T 269.33-34, T 270.50-271.7, T 271.15-17, T 273.48-274.4, T 275-276.20); and defence counsel was aware that a revisitation of the rulings could be sought.

In light of the issues for determination by the jury, the Crown submits that denying the applicant the opportunity to cross-examine the complainant about whether she was a sex worker did not mean that he lost a real chance of acquittal (see Greenhalgh v R [2017] NSWCCA 94 at [47]-[48] (see also, at [7]-[21] (Basten JA)), N Adams J endorsing the statement in ARS v R [2011] NSWCCA 266 by Bathurst CJ (at [148]); Picken v R [2007] NSWCCA 319 at [20]-[21]; referring also to Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]). The Crown says that no evaluation of “the answers of the complainant … as to the issues” nominated by the applicant would have any material bearing upon consideration of the issues for determination, much less give rise to such a chance. Hence, the Crown submits that leave under r 4.15 is not warranted.

If it is concluded that error occurred and/or miscarriage of justice (that is, a departure from a trial according to law to the prejudice of the accused) was occasioned in respect of Ground 1, the Crown relies on the proviso in s 6(1) of the Criminal Appeal Act. The Crown notes that the question whether, notwithstanding any departure from a trial according to law to the prejudice of the accused, there has been no substantial miscarriage of justice, focuses upon whether the nature and effect of the error which has occurred prevents the appellate court from undertaking its assessment of whether guilt has been proved to the requisite standard (citing Plomp v The Queen (1963) 110 CLR 234 at 243; [1963] HCA 44; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [69]).

The Crown says that, in the present case, any cross-examination on the additional issues sought to be adduced by the applicant would be of marginal relevance to the issues in dispute at trial; and that this Court is not deprived of the ability to determine the nature and effect of the error (cf Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 (Kalbasi) at [13]; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (Hofer) at [54]).

As to ground 1(a), I am not persuaded that Woodburne SC DCJ erred in excluding the evidence sought to be tendered in the second s 293 application at the first trial.

Before turning to the s 293(4) application itself, I should add that in my opinion no error has been shown in the refusal by her Honour to conduct a Basha enquiry (as the applicant here contends), noting that there is no express challenge to this on the present appeal. That decision was a discretionary one, made well into the second week of the trial, in circumstances where the defence counsel had submitted that this would enable her Honour to make a better judgement on the value of the application(11/3/21; T 365.33-37). In submissions at the first trial, defence counsel seemed to be suggesting that an application would involve questions of the complainant. In submissions in this Court the applicant suggests that this would have encompassed evidence from Mr Cotterell as well.

Whatever the ambit of the proposed questioning in any Basha enquiry, any usefulness of such an enquiry could only go to the exercise her Honour was required to carry out in assessing the relevance and probative value of the evidence sought to be tendered (and the matters required to be determined by s 293 including the likely distress, humiliation and embarrassment to the complainant).

The second s 293 application to adduce the evidence focused largely on the desire to challenge the credibility of the complainant arising from her answers in cross-examination expressing discomfort at strangers seeing her in her underwear; and as to her credibility and reliability on other aspects of the evidence, such as her lack of awareness of cultural customs in Australia, ability to complain and whether she attended work after various of the appointments.

Her Honour’s observations that the complainant had said she was not comfortable showing her underwear to strangers, not that she had not done so; and that the assertion of a lie was based on an assumption as to the complaint of a person working in a brothel on that issue were in my opinion well-founded. A Basha enquiry in order to test the complainant’s reaction to evidence of such photographs was not the only way in which her evidence as to discomfort could have been tested. As was conceded in oral argument on this appeal, the possibility of testing the complainant’s credibility on the question of her discomfort at others seeing her in her underwear in some “denuded middle ground” was not explained at trial (see the discussions at AT 8).

In any event, as already noted, the refusal to conduct a Basha enquiry is not the subject of a ground of appeal.

As to the asserted error in relation to the s 293 application, I do not accept that the evidence sought to be tendered satisfied s 293(4).

Accepting that the work shift emails appear to indicate that the complainant worked shifts at the Ginza Club over the period of the events in the indictment (although they do not establish that she did), assuming that the complainant did work these shifts (and assuming that the complainant did perform sexual services during those shifts), I would accept that this would be evidence of sexual activity in which the complainant participated at “about the time” of the commission of (or at least some of) the alleged prescribed sexual offences. What I do not accept is that those events form part of a connected set of circumstances in which the alleged prescribed sexual offences were committed.

As the majority of the High Court (Gordon ACJ, Edelman, Steward and Gleeson JJ) recently said in Cook (a pseudonym) v The King [2024] HCA 26 (at [44]), the effect of the additional requirement in s 293(4)(a)(ii) is that the operation of s 293(4)(a) is narrowed “to near-contemporaneous events that [are] sufficiently integrated with the alleged offending so that it can be said that the events are part of the circumstances of the alleged occurrence of the sexual offence”. Whatever services the complainant provided at the Ginza Club over the period of the indictment and, more particularly, any such services provided after the events in question were in my opinion separate from the circumstances of, and not sufficiently integrated with, the offences.

They are not part of the immediate aftermath of the offending, in the sense in which this was considered in Morgan; nor is it more than an assumption that distress of the kind the complainant said she felt when the incidents in Counts 9, 11 and 12 occurred would have made it unlikely that she would be able to perform the services required of her (whatever they were) at the Ginza Club. There is no connection in my opinion between the sexual offending during the chiropractic treatments and whatever services were provided at the Ginza Club.

Moreover, the probative value of the evidence sought to be tendered was in my opinion low. The complainant herself distinguished between therapeutic massage and relaxation massage. The complainant said that chiropractic was “more medical treatment”; and that “relaxation massage is just a massage to relax” (4/3/21; T 233.38-39).

Her understanding of the former (and the cultural customs concerning its administration in Australia) would logically be different from her understanding of relaxation massage techniques. I do not accept that the evidence establishes that an analogy can be drawn between the intimacy of a chiropractic therapist and that of a masseuse working at a registered brothel. The suggestion that because the complainant worked at a registered brothel she would have had a better understanding of the proper boundaries of therapeutic treatment or would be better placed to discuss what had happened in brief incidents during the massages is tenuous; and the suggestion that she was better able to communicate complaint or lack of consent by reason of her being a sex worker is based on no more than assumption (or stereotypical thinking).

Further, the distress, humiliation or embarrassment likely to be suffered was high, particularly in light of the evidence given by Mr Cotterell as to the disgrace within her family if her employment at the Ginza Club were to become known.

Therefore Ground 1(a) is not made good.

As to ground 1(b), the applicant must demonstrate that the error or irregularity has been to his prejudice (Hofer at [41] and [47]; Filippou at [4] and [13]); i.e., that what occurred had “the capacity for practical injustice” or was “capable of affecting the result of the trial” (Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74]; Hofer at [41], [47] (Keifel CJ, Keane and Gleeson JJ) and at [118] – [123] (Gageler J); Ilievski v R; Nolan v R (No 2) (2023) 112 NSWLR 375; [2023] NSWCCA 248 (Ilievski) at [89] (Dhanji J, Lonergan J agreeing, Beech-Jones CJ at CL (as his Honour then was) dissenting); Zhou v R [2021] NSWCCA 278).

As noted by the Crown, this focuses on the nature and potential impact of the irregularity and requires an assessment of all of the circumstances of the trial (Ilievski at [89]; Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [120]–[141] (N Adams J); AW v R [2023] NSWCCA 92 at [48]–[51]). In AK v The Queen [2022] NSWCCA 175 at [2]-[3] (Beech-Jones CJ at CL (as his Honour then was)) it was said that in most cases this involves the necessity to demonstrate some connection between the relevant defect or irregularity and the outcome.

I do not accept that the exclusion of this evidence caused the trial to miscarry or was to the prejudice of the applicant.

The jury was well placed to assess the credibility of the complainant having regard to her oral evidence, the contemporaneous notes she had made, her complaints to others at the time, and the evidence of text messages between the complainant and the applicant; particularly when the jury had the opportunity to consider that evidence in the context of the evidence given by the applicant and other witnesses.

To the extent that the applicant’s submissions suggest that the jury may have assessed the complainant’s evidence differently had the jury been aware of her employment as an escort or sex worker (or simply had the jury been aware that she worked at a registered brothel), this seems to be based on a belief that juries will apply outdated stereotypical assumptions as to how sex workers or sexual assault victims behave.

As noted above, the fact that the complainant may have worked as a sex worker (in a “full service” brothel) says nothing about her ability as a patient undergoing chiropractic treatment to discern precisely what was occurring during those treatments, nor does it say anything about her ability to voice her concerns or complaints at the time.

Even if there had been error demonstrated in the exclusion of the evidence, I am not persuaded that the applicant was thereby deprived of a real opportunity of acquittal given the low probative value of the evidence and the compelling evidence in the text messages (to which I refer in the context of Ground 2).

Thus, Ground 1(b) is not made good (and it is not necessary to address r 4.15 and the proviso).

For the above reasons, Ground 1 is not made good.

Ground 2 is the unreasonable verdict ground.

The applicant argues that the jury’s verdicts were unreasonable and unsupported by the evidence. In particular, the applicant points to inconsistencies in the complainant’s evidence that the applicant maintains, when considered in light of all of the evidence, gives rise to a reasonable doubt that is unable to be resolved by reference to the jury’s advantage in hearing and seeing the evidence. It is submitted that the complainant’s credibility and reliability are fundamentally undermined by independent evidence tendered at the trial and evidence of other Crown witnesses; and that, individually and cumulatively, the issues and inconsistencies arising from the preponderance of the evidence irretrievably undermine the complainant’s evidence (and therefore the Crown case). The applicant says the complainant was significantly shaken in cross-examination and that this should have raised reasonable doubts for the jury as to the complainant’s credibility or reliability. The applicant submits that the evidence of the complainant lacks credibility for reasons that are not explained by the manner in which her evidence was given.

The applicant here places weight on inconsistencies in the complainant’s evidence (including when compared with other evidence such as the complainant’s own notes, her counsellor (Ms Sato’s) notes and evidence of text communications); as well as other matters which the applicant maintains cast doubt on the complainant’s credibility. I consider those matters under the headings used by the applicant in his submissions; interposing the Crown’s response thereto.

The applicant points at the outset to the various documents in which the complainant made representations about what happened in her consultations with the applicant.

As to the notes made by the complainant about the appointments (Ex 18) from 15 January 2019 the applicant says that the complainant’s explanation for keeping such a record (if anything happened or in case she might have to protect herself) gives rise to some apprehension as to the complainant’s allegations as a result of this frame of mind existing prior to anything allegedly occurring. Further the applicant says that a number of central allegations (such as the alleged touching of her genitals in Count 1) were not recorded in Ex 18. The applicant argues that the complainant’s justification for this (that “I made those notes for my self-understanding, and it wasn’t written for other people to read, it’s not so detailed”) should not be accepted (12/3/21; T 439.36-37).

The Crown points out that when it was put to the complainant that she started keeping the notes because she was suspicious on 15 January 2019 of what had taken place, the complainant said (4/3/21; T 221.28-36):

The Crown says that the complainant’s priority was to rid herself of lower back and groin pain, which was inhibiting her walking, sleeping and sitting (4/3/21; T 221.43-50, T 233.48-234). The Crown says that the complainant did not write that she was suspicious of the applicant but wrote to the effect that she was shocked by the fact that she had to remove all her clothing, and had to show her body with underwear on (4/3/21; T 229.38-44):

As to Ex L (the Google Translate messages from the applicant’s phone) the applicant notes that this only shows the communication from applicant to the complainant; and that it records communications during the appointments, and some communications translated to be sent as text messages, which were duplicated in Exhibits G and H. The applicant submits that there is an available inference that Ex L likely captures all of the communications from the applicant to the complainant from the second appointment onwards. The Crown refers to the apparent deletion from Ex L as pointing against such an inference (see further below).

The applicant identifies various inconsistencies in the complainant’s evidence.

First, as to the first five appointments, in her evidence in the first trial the complainant said that, in each of the first two appointments (15 and 17 January 2019), the applicant pulled down her underwear to her thigh but in the complainant’s contemporaneous notes, she said that in each of those appointments, the applicant pulled her underpants down to her hip. It is noted that in Ms Sato’s notes, in relation to the first appointment, the complainant said that the applicant lowered her panties so that her “bottom was fully exposed”, and in relation to the second appointment, simply said that “he pulled down my panties”. The Crown submits that careful consideration is required of indications by the complainant or the interpreter of a lack of a direct translation, or possible use of more than one word. One example to which the Crown refers is that in Japanese the same word for lower back and hip is normally used (10/3/21; T 316.30-31). The Crown says that when the complainant was asked to indicated hips on a diagram, it appears that she indicated generally the same area as she did with the lower back (10/3/21; T 318.3-5) and that the complainant also indicated that one of the interpreters may have used the term “groin” when the complainant meant “hip joint”, and another interpreter used a different Japanese word, creating confusion (10/3/21; T 335.29-32).

As to the first two appointments, the Crown says that there is no material inconsistency between the complainant’s evidence, what she intended to write in her note, and Ms Sato’s record; that where the notes of the first appointment state “[h]e pulled my underpants to my hip”, the complainant “used the incorrect [Japanese] letters”, and wanted to write “[h]e lowered my underpants to my thighs” (10/3/21; T 355.39-356.7); the word “hips” was a mistake (10/3/21; T 356.7-16). To the extent that the applicant suggests there is a relevant discrepancy between “bottom was fully exposed” and “he pulled down my panties”, the Crown says that the complainant’s note that “[i]n Japan they normally provide paper undie” suggests that the part of her body that would normally be covered by “undies” was exposed (Ex 18 at [1])

As to the third appointment (on 22 January 2019), the applicant notes that in her evidence the complainant said that while the applicant was giving her an oil massage, she felt that his fingers were very close to her anus but she did not record that observation in her contemporaneous notes, whereas Ms Sato’s notes record that she said that the massage was extending over towards her vagina and anus.

As to the third appointment, the Crown says that it was not put to the complainant in cross-examination that she failed to record in her personal notes that the applicant’s fingers were very close to her anus. It is noted that Ms Sato recorded that the complainant told her that the “session proceeded somewhat similar to the first and second sessions, but I felt that his massage was getting gradually extending over towards my vagina and anus areas repeatedly” (Ex M at [3]). Thus the Crown says that this indicates that the third massage was moving closer to her vagina and anus areas. The Crown submits that this readily reconciles with the complainant’s description in evidence, that she felt his fingers were “very close” to her anus (26/2/21; T 65.26-27) (referring also to her evidence at (11/3/21; T 401.13-16) and (11/3/21; T 401.47-50, T 403.6-9)).

As to the fourth appointment (on 24 January 2019), the applicant notes that in her evidence the complainant said that the applicant put his hand in her underpants, and touched her genital area, but there was no mention of the applicant touching the complainant’s genital area in her contemporaneous notes, nor in the counsellor’s notes.

The Crown says that the complainant’s personal notes did not purport to be a record of evidence akin to what might be recorded in a police statement or given in evidence (“I made those notes for my self-understanding, and it wasn’t written for other people to read, so it’s not so detailed”) (12/3/21; T 439.36-37); and that it was not the purpose of either set of notes to create a comprehensive and sequential narrative of everything that took place. The Crown says that submissions by the applicant which fix on “inconsistencies” (see below) ill-conceive that each ought to be treated as if it were such a record.

As to the applicant’s submission in relation to the fourth appointment, that there was “no mention” of the applicant touching the complainant’s genital area in the complainant’s notes, or in Ms Sato’s notes, the Crown refers to the complainant’s notes, which stated that, “I feel that the areas he was touching. I am worried but it may be an accident” (Ex 18 at [4]-[5]). The Crown says that, on a sensible reading, this shows the complainant was worried about what the applicant was touching. Ms Sato’s notes record that the fourth visit involved “continuously escalating his massage towards my vagina and anus” (Ex M at [4]).

As to the fifth appointment (on 29 January 2019), the applicant points to the complainant’s evidence that the applicant massaged her “pubic area” in a circular motion, and the lack of reference to the applicant touching the complainant’s genitals in the complainant’s contemporaneous notes, or in the notes made by her counsellor.

As to the fifth appointment and the asserted inconsistency between the complainant’s evidence, her personal note and Ms Sato’s note (that she gave evidence the applicant massaged her “pubic area” but did not refer to him touching her genitals in her own notes or in Ms Sato’s notes), the Crown says that the complainant gave evidence that the applicant instructed her to turn onto her back, which she did, and he massaged her thigh and groin areas, then put her underpants down to the level of “pubic” and began to massage her pubic area in a circular motion (1/3/21; T 83). The Crown says that “Pubic area” did not necessarily refer to genitals specifically. The Crown argues that consistently with the evidence, the complainant recorded in her own note that she felt that “the areas he is touching are expanding”, and Ms Sato that it was “[s]imilar to the previous sessions” – which included massaging increasingly close to her vagina and anus (Ex 18 at [5]; Ex M at [5]).

As to Count 1 (arising from the sixth appointment on 31 January 2019), the complainant was challenged in cross-examination as to how her genital area could be touched whilst she was lying face down, when she had earlier agreed that in that position her groin could not be seen. The applicant says that her response that the groin also covers the areas right next to the female genitals, and that those can be seen, amounts to a concession that there was no touching of the “genital area” required to ground Count 1.

As to the sixth appointment, the Crown says that the complainant did not concede that there was no touching of the “female genital area”, “required to ground Count 1” (cf the applicant’s submissions at [144]). The Crown notes in this regard that in the context of counts 3 and 4 the complainant explained that “female genital area” covered her vagina, labia and clitoris (1/3/21; T 107.8-15).

The Crown points out that the complainant’s evidence was, first, that when the applicant was massaging her “butt cheeks” his “hands or fingers or finger were very close to my female genital area. I thought it even touched my female genital area, as well as my anus” (1/3/21; T 87.32-36); and, second, the applicant then asked her to turn over and massaged focussing on the groin area (1/3/21; T 87.38-44). It is noted that the complainant’s evidence was that the applicant asked her to remove her underpants completely; and that his hand “actually touched my female genital area a number of times” (1/3/21; T 87.38-40; 49-50). The Crown says that, as the Crown Prosecutor made plain in closing address, it was this touching, while the complainant lay on her back with her underpants off, that formed the gravamen of the offending in Count 1 (9/3/21; T 447.47-48).

The Crown says that the assertions by the applicant of inconsistencies in evidence for Count 1 appear to relate entirely to evidence of when the complainant was lying on her stomach, not on her back. In any case, the Crown notes that the complainant confirmed that when she was lying face down, the applicant reached down to her female genital area (12/3/21; T 435.29-436.17) and, further, the complainant was referring to what could be seen when she was lying down, not what was touched.

As to Count 2 (arising from the seventh appointment on 5 February 2019), the applicant points to the lack of reference in the notes to the applicant touching the complainant’s genitals while massaging her groin as she lay on her back. The counsellor’s notes refer to the applicant “massaging my vagina and anal areas”.

As to the seventh appointment, the Crown notes that the complainant’s note recorded “[s]ame as the previous time” (i.e., Count 1) (Ex 18 at [7]). The Crown says that there is no relevant inconsistency between evidence that the applicant touched the complainant’s genitals (clitoris and vagina) while massaging her groin as she lay on her back, and Ms Sato’s note that he massaged her vagina and anal areas. The act in Count 2 was massaging her clitoris and labia areas (referring to Crown closing 9/3/22; T 448.16). The complainant gave evidence she lay on her stomach, received a massage, then turned over and he massaged her groin, his fingers touched her female genital area, and he massaged those areas (1/3/21; T 91-92.6-8; T 103-104).

As to Counts 3 and 4 (arising from the eighth appointment on 7 February 2019), the applicant points out that the allegation (Count 3) of touching the genital area and anus of the complainant while she was lying face down on the table was not mentioned in the complainant’s contemporaneous notes nor in the counsellor’s notes; and that while the allegation (Count 4) of digital penetration of the vagina was referred to in the complainant’s contemporaneous notes and in the counsellor’s notes, the complainant said that at the time she thought it might have been an accident.

The applicant says that the complainant’s description of herself as half-asleep/half-awake is not believable in the circumstances, where it was said that, immediately preceding Count 4, was the commission of Count 3. It is submitted that it is extremely unlikely that, immediately following Count 3, the complainant would be falling asleep during the treatment, creating the alleged opportunity for Count 4.

The Crown says that, contrary to that which is suggested by the applicant’s submissions at [149], it was not said that Count 3 immediately preceded Count 4. The Crown notes that the complainant gave evidence that when she went into the room for the session, she removed her clothing, and was instructed to lie on her stomach, which she did (1/3/21; T 105.25); that she was very sleepy that day and was half asleep when the applicant inserted his finger into her vagina (Count 4) (1/3/21; T 106.1-4); that after that, the applicant asked her to turn and she lay on her back and, as he massaged her groin and thigh areas upwards, his fingers touched her vagina, labia and clitoris (Count 3) (1/3/21; T 106.35-107.15). The Crown says that the applicant’s submission at [149] of the unlikelihood of Count 4 following on from Count 3, misconceives the sequence of events.

The Crown submits that it is understandable that the complainant did not refer specifically to the indecent touching in Count 3 in her own record or with Ms Sato; saying that the act of penetration in Count 4 was more shocking and prominent. It is noted that the complainant did not simply state “she thought it might have been an accident”; in her personal notes she recorded that it may have been an accident “because of oil” and that “[i]t would be embarrassing if it was my mistake while he was treating me best he can. I can [sic, could] ask him nicely if it was in Japanese” (Ex 18 at [8]). The Crown also notes that the complainant told Ms Sato she gave him the benefit of the doubt (Ex M at [8]).

As to Counts 5, 6 and 7 (arising from the ninth appointment on 12 February 2019) it is noted by the applicant that these allegations were not referred to in the complainant’s contemporaneous notes but were referred to in the counsellor’s notes. The applicant says that there is no record of a conversation in Ex L akin to that which the complainant alleged; namely, through Google Translate, the applicant said “[t]he type of massage I’m giving you is not ordinary regular massage”. The applicant submits that this raises a significant doubt as to the veracity of this evidence.

The Crown says that the complainant’s response in cross-examination, of “I think he did” to the suggestion that the applicant did not put his finger in her anus, was because she was lying down and was not looking at her anus or his fingers; however, she felt something inserted in her anus, which from the sensation she thought was a finger (15/3/21; T 461.49-462.13). The Crown says that this evidence did not denote uncertainty; rather, it supported her credibility as endeavouring to listen to questions and answer them accurately.

The Crown says that, generally consistent with the complainant’s personal notes, the actual acts which comprised Counts 6 and 7 are not described in terms, but her embarrassment is recorded. The Crown submits that the entry for this date is compelling in its record of the difficulty she felt that she was in, and of her shock and panic (“I couldn’t move”; she felt “sick, gross, gross, gross”) (Ex 18 at [9]).

The Crown says that it did not follow from the absence of a record of the applicant’s statement, that “[t]he type of massage I’m giving you is not ordinary regular massage”, or the complainant’s response, in Ex L (data from the applicant’s phone) that the exchange did not occur. It is noted that the Cellebrite download produced “messages” on Google Translate, but which were not sent between phones unless copied and pasted into a messaging application (2/3/22; T 301.1-2, T 302.45-304; 15/3/21; T 484.29-30; 24/3/21; T 861.12-15). The complainant said the applicant showed her the translation on his phone (15/3/21; T 465.7). The Crown notes that the evidence did not establish what may be retained by Google Translate, for how long, or the effect on recovery of deletions or attempted deletions. The Crown notes that the complainant’s own phone was not examined, as she preferred not to part with it for an unknown period (2/3/21; T 315.13-316.14).

The Crown also points out that the applicant deleted some entries from his phone (MFI 24–25/3/21; T 879-880); that he deleted a Google Translate search dated 12 April 2019, which stated among other things that he “took the massage further”, after “I touched… you down there”, “I thought we were going to have sex”, and denied licking her (MFI 24 – 25/3/21; T 879-881); Ex L p 6, item 8. The Crown says that Ex L itself appears also to show records of searches that were deleted, where the text has not been recovered (items 7, 9, and 10), from 12 and 15 April 2019.

As to Count 8 (arising from the eleventh appointment on 19 February 2019) it is noted by the applicant that in her contemporaneous notes, the complainant said “That idiot touched me again ... It was the same way of touching as previously”, and that Ms Sato’s notes refer to massaging the complainant’s clitoris, but not to inserting a finger into her anus.

The applicant submits that after the alleged offences in Counts 5, 6 and 7, and the alleged interaction with the applicant following the commission of those offences, the evidence by the complainant in relation to Count 8 that she was not sure what was going on, and was confused by what she was experiencing, because the applicant had promised not to offend further and she was not sure if she was dreaming, should not be accepted.

The applicant says that the transcript of the electronic communications between the applicant and the complainant (Ex L) contains nothing resembling the communications of which the complainant gave evidence (that she told the applicant that she wanted him to give her a regular massage, and that she did not want him to do something towards her “like this what happened today”).

The Crown says that the complainant’s evidence of what she felt was not simply that she was not “sure what was going on”; that the context of that statement in the complainant’s evidence was in response to being asked whether she said anything to the applicant after he touched her (“I was very shocked and I was actually panicking at that time… and then because I was panicking at that time I was not really sure what’s going on. What is it really is? I was very much confused. I just wondered what, why? I told him not to touch those areas. He said he promise not to do that but he did…”) (2/3/21; T 126.47-127.5). The Crown says that the applicant proffers no rational reason why the jury ought to have doubted the credibility of this evidence.

As to Count 9 (7 March 2019) the applicant points to inconsistencies between references in the complainant’s evidence to the applicant touching her anus, Ms Sato’s notes (Ex M) (that the applicant inserted his finger into her anus), and her own notes (Ex 18), in which the complainant said “When he is pressing pressure points on my buttock and his back finger slipped into my anus. Is his finger slipping?”. The applicant submits that there is reasonable apprehension about the complainant’s evidence that she was unsure as to what was occurring, and that because the applicant had said twice that he would not do it again, she believed it was not sexual harassment.

The Crown says that the complainant’s evidence that she was not sure whether the applicant’s finger entered her anus or just touched it was reflected in a charge of sexual touching rather than sexual assault; and that the fact that the complainant was uncertain whether the more serious act occurred does not warrant “apprehension” that she was unsure “as to what was occurring”, or a reasonable doubt that an act of touching her anus was established.

As to Count 10 (arising from the fourteenth appointment on 14 March 2019) the applicant points to the evidence that the applicant touched her anus, whereas Ms Sato’s notes and the complainant’s contemporaneous notes described the insertion of a finger into the complainant’s anus. Insofar as the complainant said that she was not sure whether the finger had been inserted or was touching her anus, and in evidence said there was a difference in translation by Ms Sato and the interpreter who assisted in the preparation of her police statement, the applicant notes that the complainant conceded that the Japanese words for “touched” and “pressed” were different; and says that the complainant continued to maintain that she was unable to resolve whether she was being sexually harassed or if it was treatment.

The Crown submits that the complainant’s explanation as to this (that she asked Ms Sato, who thought she could say his finger was inserted (16/3/21; T 534.25-50), but that the police interpreter said it would be “touched” (16/3/21; T 535.1-5)) was not an “attempt to justify” a lack of certainty; the complainant was candid in her evidence of asking about it.

As to Count 11 (arising out of the fifteenth appointment on 21 March 2019) (an allegation of sexual touching of the complainant’s anus again (in the same fashion as Counts 9 and 10) in the contemporaneous notes), the complainant stated that the applicant put his finger in her anus. The counsellor’s notes state “same as 12th”, (which apparently is a reference to the twelfth appointment with the applicant on 26 February, on which date no sexual offence is specified, and no charges were laid). It is noted that the complainant continued to maintain that at that stage she still did not know if it was proper treatment or not.

The Crown points out that Count 11 was similarly touching the complainant’s anus and pressing down. The Crown says that Ms Sato’s notes, the complainant’s note and her evidence reflect similar thought processes.

As to Count 12 (arising out of the sixteenth appointment on 28 March 2019), the complainant alleged either the touching or the inserting of his finger into her anus, and was still unsure as to whether it was accidental or part of the treatment, and gave evidence that she thought her anus may also have been licked (an uncharged act). The applicant notes that there was no (dated) reference to the appointment with the applicant on 28 March 2019 in the complainant’s contemporaneous notes. In the notes taken by Ms Sato, she felt that he licked her anus, but as she did not see it, she was not sure if he really did so.

The Crown says that [16] of the complainant’s notes correlated with 28 March 2019 (17/3/21; T 585.20-28). It is noted that the complainant described the applicant’s finger going into her anus, and that when she was “stretching as usual, without underpants, I felt that he licked my anus!!” (Ex 18 at [16]). Count 12, in any event, was a sexual touching charge.

The Crown says that the complainant expressed no uncertainty about this much. Rather, the complainant said that she was not sure that the applicant pressing or touching her anus or inserting his finger was deliberate, or could have been accidental or part of the treatment. The complainant was hesitant about taking her underpants off, but he took them off even though she said “no, no”; he said it was “necessary” (Ex 18 at [16]). Insofar as the applicant criticises the complainant for not being certain that the applicant licked her anus during this appointment, the Crown says that the complainant exhibited appropriate restraint against exaggeration.

As to Count 13 (arising out of the seventeenth appointment on 4 April 2019), the applicant submits that the complainant’s evidence in chief that she could not see the shape of the hand-held massager on her abdomen during that appointment, without her glasses or contact lenses, cannot be reconciled with her alleged ability to “see” the applicant lick her vagina during the same consultation after the use of the hand-held massager.

It is submitted that the complainant’s evidence on Count 13 was inconsistent with her contemporaneous notes, which did not refer to her having seen the alleged offence (and which the applicant says implied she did not), but simply recording that she heard the sound of a mouth opening and there was his head. The applicant notes that there was no reference in the notes to any response by the complainant but that Ms Sato’s notes include that she said “No” so that the applicant would stop. The applicant notes that in cross-examination the complainant gave evidence that she did not remember saying that. The applicant submits that there is a real doubt as to the credibility and reliability of the evidence concerning Count 13, and says that irreconcilable evidence given by the complainant on these topics is entirely unexplained.

The applicant says that the inconsistent evidence concerning the hand-held massager included when it was first used, whether it had been used on the first appointment or only on the final appointment, whether it had been used near her vagina or not, whether it had been referred to as a “vibrator” or not, whether she had been able to respond verbally or if she had responded verbally or not.

The Crown says that there was no inconsistency between the complainant having seen the hand-held massager (vibrator) on the windowsill in the search warrant video, which was pointed out by a police officer, and not being able to see the shape of the vibrator without her glasses on in the course of treatment. It is noted that the complainant had glasses on when she watched the video (MFI 6 recording titled ‘201909836_94363_BEHI_Day 13 - Thurs 11 Mar 2021’ at 00:00:53). The Crown says that the contention that it follows the complainant would not have been able to see the applicant lick her vagina should be rejected. The Crown says that the complainant could plainly see his head and felt the lick. The Crown says that if she could not see his tongue it was an unmistakable inference that that was what was occurring; and that this was supported by her note of having heard his mouth and seeing his head.

The Crown notes that the complainant did not remember the applicant using the “hand-held massager” at her first appointment (11/3/21; T 383). Further, the Crown notes that the words “near her vagina” were not the complainant’s words; they were introduced by the questioner in cross-examination (18/3/21; T 607.19-33). Ms Sato’s record was “closer towards my vagina”; and the Crown says that, not inconsistently, the complainant gave evidence that the applicant applied the machine on her thigh and groin. The complainant said the applicant called the machine a “vibrator” when he introduced it; she referred to it as a “vibrator machine” (3/3/21; T 169.27-40). The Crown submits that no “serious concerns” of her reliability and credibility arise in relation to Count 13.

The applicant submits that the complainant’s evidence relating to Counts 1 and 2 cannot prove the offence of aggravated sexual touching beyond reasonable doubt in circumstances where the context of the alleged offending was during chiropractic treatment of the groin and hip flexors. The Crown says that this should be rejected.

In regard to Counts 1, 2 and 7, it is submitted that the inconsistencies in the complainant’s evidence, and the concessions which the complainant made in cross-examination, taken in isolation, should have raised a reasonable doubt as to those counts. In relation to all the counts, it is submitted that the inconsistencies between the complainant’s evidence and other versions she gave of these incidents should have given rise to doubts. It is submitted that the inconsistencies in the complainant’s evidence, taken with the other issues raised by the applicant (see below) cumulatively raise unassailable doubt as to the complainant’s reliability and credibility.

The Crown says that many of the complaints of “inconsistencies” between the complainant’s evidence and other evidence concern the complainant’s personal notes and notes made by her counsellor. In relation to this, the Crown emphasises the following: first, that variations in the terms in which a complainant discloses sexual assault may be explained by context (referring to a restricted decision – [2023] NSWCCA 223 at [94](3)), where Adamson JA, Wright and Fagan JJ agreeing, cited Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [91] (Hoeben CJ at CL, Button and N Adams JJ agreeing); and, second, that some Japanese words did not have direct English translations.

It is noted that one must examine the issue from the complainant’s point of view and with due consideration of the circumstances in which records were made; and that some discrepancies in narratives are to be expected. The Crown points to the complainant’s explanation of the purpose of her personal notes as being a “personal diary, just a journal, a diary” (4/3/21; T 219.24-29); and that Ms Sato’s notes were a summary to assist the complainant with a document for the police (4/3/21; T 219.24-29); Ex M, (1/3/22; T 204.50-205.2).

Beyond the inconsistencies identified in the complainant’s evidence, the applicant says that her general response to cross-examination was not impressive and should give rise to concerns as to reliability, if not credibility. It is said that there were occasions where the complainant was evasive, unresponsive or refused to answer questions (the two examples being given here are at 4/3/21; T 229.22-23 and 18/3/21; T 604.33-34). The applicant says that on some issues, the complainant would deny propositions clearly demonstrated by independent evidence, or state that she did not remember, despite the evidence given in examination in chief. The applicant points by way of example to the records of her work at the Ginza Club (which due to the s 293 ruling were not able to be tendered as an exhibit) going to whether she worked after the appointments on 24 January, 5 March, 7 March, 21 March and 28 March 2019; and to the dispute as to whether the complainant attended an appointment on 5 March 2019.

The applicant contrasts the complainant’s poor memory in cross-examination with the clarity of the memory she purported to have during her examination in chief. The applicant says that the complainant attempted to justify inconsistencies by blaming either the interpreter who had assisted in the preparation of her police statement, or one of the two interpreters who had interpreted for her during the trial (referring to 11/3/21; T 380.8-29).

The applicant says that the complainant would also provide a range of excuses when inconsistencies were put to her. By way of example, the applicant says that when it was raised that the allegation in Count 1 was not included in her police statement, the complainant provided various excuses, including that she was not mentally strong enough to talk about it, it was a male interpreter, that she could not explain herself well enough, and that she had used an indirect expression (15/3/21; T 454.49-456.43). The applicant says that there were also portions of cross-examination where the complainant would add details absent from her examination in chief, her police statement, and Exhibits M and 18 that were always adverse to the interests of the applicant (4/3/21; T 229.34-230.9).

The Crown says that the jury was also well placed to evaluate whether the complainant “attempted to justify inconsistencies” by “blaming” interpreters or whether her explanations ought to be accepted, even if the applicant dismisses her evidence as “excuses”. The Crown says that, in the single example of this given by the applicant (in submissions at fn 341), the complainant expressed uncertainty whether a phrase in her statement “[i]n Japan, if you’re at a doctor of chiropractor” was an expression she used, that “maybe” the interpreter translated it that way (11/3/21; T 380-381). It is noted that the court interpreter explained, at her Honour’s request, that the complainant used the phrase in evidence “manipulative therapist”, which could be translated as “chiropractor or osteopath or massage” (11/3/21; T 381.20).

The applicant says that a significant issue in dispute was the complainant’s evidence concerning why she continued to attend for treatment despite the offending. The applicant says that the complainant offered a myriad of reasons, including that: she thought the applicant was a medical doctor; he was performing medical practices; he had promised to make her better and cure her problems (1/3/21; T 92.17-25; 1/3/21; T 104.23-32); she was not familiar with massage in Australia; she was under an apprehension that there were cultural differences; she thought she could trust the applicant, that it would be rude to doubt him (1/3/21; T 104.23-32; 1/3/21; T 107.39-50); he touched her accidentally, that he did not really care about touching those areas (1/3/21; T 107.39-50); and she was improving, getting positive effects and was feeling better (1/3/21; T 107.48-50). The applicant again here complains that he was denied leave to lead evidence of the complainant’s work as a masseuse in Australia which may have raised doubts as to this evidence.

The applicant argues that the complainant’s evidence (concerning her not being sure about whether she was being offended against) appears only logical until the commission of Counts 5, 6 and 7 (12 February 2019, at the ninth appointment) during which appointment the complainant alleged that the applicant informed her that it was not a usual massage, that he had never given a massage of that kind before, and that she would not have to pay anything additional. The applicant notes that despite this, the complainant attended again for treatment on 14 February 2019, and again the following week, when Count 8 was allegedly committed against her. The applicant argues that, from then, on the complainant’s own account, the complainant must have know that what was occurring was not legitimate treatment. The applicant points out that on the complainant’s account the applicant had confirmed that his conduct was not part of the treatment and she had told him never to give her that kind of massage again. The applicant notes that despite this, the complainant went back, allegedly because the applicant promised he would not do it again.

It is submitted that the complainant’s evidence in this regard cannot be reconciled with her other evidence as to the reasons that she continued to attend for treatment on five more occasions, including: “I couldn’t make the appointment by myself”; “By that time, I was emotionally quite tired, and I couldn’t think clearly”; “But I had also paid for the package deal”; “He promised he wouldn’t touch me”; “Maybe he thought I didn’t want him to touch me because of my period, but this time I wasn’t having a period”; “I thought he got my message that I didn’t want him to touch me sexually”; “I had only a few sessions left”; “If I put up with it, I won’t have any problems”; “Once I finished the package, I would feel better”; “I wasn’t sure if it was treatment or sexual harassment”; “I was very distressed, I had sleepless nights, I was quite mentally fatigued”; “I wasn’t sure about a refund and talking would increase my stress”; “Apart from the incident I had so many things going on, I wasn’t feeling well including my stomach issue, sometimes suddenly needing to go to the toilet so even during normal everyday life I was having lots of stress”; “If I put up with this the problems will be fixed”; “I was having lots of stresses and so many things were happening so I couldn’t calmly make decisions when something is right or wrong”; “I couldn’t find another place for treatment”; “Even if I go somewhere else, I’d have the same treatment”; and “If the treatment was normal, it would be the same wherever I go” (15/3/21; T 496.35-44; 16/3/21; T 546.12-38).

The applicant says that the complainant’s evidence that she attended on 4 April 2019, after being offended against on 28 March 2019, because she was unable to make an appointment in English, is illogical and is undermined by the regular contact with the applicant by text message to re-schedule and set up appointments with him. Also, it is submitted that her evidence that she could not ask the applicant about his conduct is undermined by her doing so by text message following 4 April 2019. It is noted that the complainant’s other evidence was that she wanted to think about what had happened when she got home.

The applicant argues that the above reasons are contradictory, in regard to the complainant’s comprehension of what was occurring and the wrongfulness of it, but submits that even when the complainant (on her account) was aware that the alleged offending was not part of any legitimate treatment, the complainant continued to attend appointments with the applicant.

It is submitted that this evidence would have been even more inexplicable had leave been granted under s 293(4) for the adducing of the evidence as to the complainant’s masseuse qualifications from Bali, her work as a masseuse in Japan and Australia, and/or her work as an escort.

As to the applicant’s submission that the reasons the complainant gave for continuing treatments despite the sexual offending cannot be reconciled with her other evidence, the Crown submits that when the complainant’s evidence is considered in context, from the sense of discomfort she felt initially to the blatant serious offending on 4 April 2019, her evidence is compelling. The Crown points to the progressive narrative of events as showing the cultural, linguistic, social and poor health pressures that the complainant faced. The Crown says that the broad overview of events illustrates in general terms the complainant’s evolving thoughts. The Crown also refers to the fact that at times the complainant contemplated that the applicant may have touched her accidentally and points to the nature of the massages and the brevity of some of the offending. By way of example, the Crown notes that the penetration of her vagina on 7 February 2019 was for “one second or less” (1/3/21; T 105-106); and on 7 March 2019 his hand touched her anus for one to three seconds (2/3/21; T 137-138).

The applicant says that it became clear in the cross-examination of the complainant that her description of the applicant’s treatment omitted significant details. The applicant says that the complainant conceded that there were aspects of the treatment that she had not included or to which she had not referred (8/3/21; T 258.21-259.29; 8/3/21; T 263.10-264.3; 11/3/21; T 390.20-50; 11/3/21; T 396.34-48 ); noting that the complainant largely agreed with the consistent treatment routine outlined in cross-examination (8/3/21; T 259.27-263.13; 10/3/21; T 315.19-32; 10/3/21; T 322.10-333.19; T 391.40-43).

The applicant argues that the omission of some aspects of the treatment in her evidence undermines the reliability (“if not credibility”) of the complainant’s evidence. The applicant says that the complainant also resiled from aspects of her evidence concerning the treatment, conceding in cross-examination that the towels used were an average sized bath towel, as tendered as Ex 6 (10/3/21; T 333.21-38), bigger than the “hand towel” that she described in examination in chief (11/3/21; T 381.33-48). The applicant says that, following this concession, the complainant’s evidence as to the use of the towel was unreliable, in that she could not recall or did not remember clearly, but then would also deny propositions put to her (10/3/21; T 333.40-334.9; T 347.42-348.18).

The applicant further says that aspects of the complainant’s evidence were contradicted by the evidence of witnesses who worked at the applicant’s business. It is noted that there was no reference in the complainant’s examination in chief to any other treatment provided by the applicant or his leaving the room to attend to another patient in the adjoining room. The applicant refers in this regard to the evidence of the two witnesses who were working at reception (Ms Michael and Ms Lee) as well as the evidence of the patient referred to above. It is noted that the complainant gave evidence that during her treatment she could hear voices coming from the reception area, being the room next to the treatment room (26/2/21; T 67.20-24).

The Crown says that details of (lawful chiropractic) treatment received, or not received, and whether the towel used was described as a hand towel or average sized bath towel, were not material to establishing the offences. It is noted that the complainant said that the applicant never opened towels (1/3/21; T 88.27-28).

The Crown says that evidence given by Ms Lee and Ms Michael, and by patients, of what they could hear at times is also not significant to an assessment of whether the offending occurred. It is noted that they never interrupted the applicant while he was with a client with the door closed (even if, per Ms Michael, he gave them an opportunity to do so) (25/3/21; T 960); (26/3/21; T 1006). The receptionists could only hear mumbling or muffled noises from treatment rooms (26/3/21; T 1006), (26/3/21; T 1008-1009). It is noted that the complainant did not say she “yelled out” “no, no, no”; rather, she gave evidence that she “said no, no” many times when the applicant pulled down her underwear (3/3/21; T 170.25), (17/3/21; T 585.37-38), (18/3/21; T 605.41-43) and that some exchanges were on Google Translate.

The applicant refers to the dispute as to what occurred during the complainant’s appointment on 14 February 2019.

It is submitted that the case for the applicant as to the events on Valentine’s Day is corroborated by the independent evidence tendered at the trial in Ex L (Google Translate messages from the applicant’s phone) and the text messages between the complainant and applicant following the last appointment on 4 April 2019 (Ex H).

The applicant submits that the entries on 14 February 2019, having regard to the other messages in Ex L, are aberrant, and not consistent with the usual communication by the applicant, further lending support to the applicant’s evidence. The applicant says this is also corroborated by the text messages in Exhibits G and H, which commenced on 5 April, continued on 8 April, then 11 April and end on 12 April 2019. The applicant says that, aside from the question to the complainant as to whether the applicant licked the complainant in the appointment on 4 April 2019, and a later allegation that he did so, the only allegations or complaints in these messages are limited to references to “February” and, more specifically, to “Valentine’s Day”.

The applicant emphasises that there are no complaints in the messages referring to other time periods of the alleged offending, such as January or March; nor to any other types of alleged offending, such as other touching, insertion of the applicant’s finger or licking of the complainant. It is noted that the complainant agreed, in regard to the text messages that she sent to the applicant, that the only complaints in those messages were in regard to licking her body on 4 April 2019 and touching her “crotch” in February 2019 (15/3/21; T 489.1-10). Further, the applicant points out that despite what is contained in the text messages from the complainant, nowhere in her evidence did she allege that the applicant said to her that he did or did not want to have sex with her. It is submitted that the exchanges on this topic could only have been in reference to the evidence given by the applicant as to the events of Valentine’s Day, 14 February 2019.

The complainant’s evidence in cross-examination was that her reference in the text messages to ‘‘Valentine’s Day” was an error or mistake. The applicant says this should not be accepted, in light of the preponderance of the evidence, particularly in light of the complainant’s agreement in cross-examination that, when she texted the applicant ‘‘You touched my crotch in February”, she was referring to what she had said in the text message which stated “Why did you touch my pussy? Why Valentine’s Day?”. The applicant says that the complainant’s inability to provide a satisfactory response as to why she not only referred to Valentine’s Day, but also referred to “February”, gives rise to further concerns as to the reliability and credibility of the complainant’s evidence.

The applicant says that, aside from what appear to be references to the events of 14 February 2019, he otherwise denied any inappropriate behaviour (including licking the complainant). The applicant says that the only references made by him to anything having occurred are to a singular “act” in “February”. The applicant refers to evidence from his friend, Mr Tallai, that, shortly following the applicant’s arrest (and presumably before receipt of the evidence in the brief) he had lunch with the applicant, who told him that the complainant had taken his hand and “put it on her private parts” on 14 February 2019 (8/3/22; T 391.38). The applicant says that this evidence as to the detail and timing of this disclosure to Mr Tallai tends against the submissions by the Crown that the applicant’s evidence concerning 14 February 2019 was an invention by the applicant.

The Crown says that resolution of competing testimony of what occurred at the applicant’s rooms on 14 February 2019 was quintessentially a function of the jury in determining where the truth of what occurred that day lay, including by taking into account text exchanges, and explanations given for them. The Crown says that the jury was entitled not to accept the applicant’s explanation that an “x” at the end of the message on 14 February 2019 was an accident (the Crown points out that the applicant also did not tell Mr Tallai, his best friend, about any text messages) (8/3/22; T 385-396).

As to the dispute whether the complainant attended for an appointment on 5 March 2019, the applicant relied on Ex F, the complainant’s account statement from “the Back Guys”, which recorded that the complainant attended an appointment on 5 March 2019. The applicant said that the complainant had rescheduled an earlier appointment for that date. The applicant says that the accuracy of Ex F as a record of the complainant’s attendances was not challenged. Further, it is said that Ex L corroborates that the complainant attended that day. (Pausing here, I note that there are Google Translate entries on this date in Ex L.) The applicant says that the absence of any evidence in Exhibits G or H on 5 March 2019 lends support to the exchange in Ex L as having occurred during an appointment, as did the timing of the entries in Ex L. Ms Michael, one of the receptionist interns, gave evidence that she recalled 5 March 2019, which she thought was her last day. She also recalled that the complainant had attended on that date (25/3/21; T 963.28-964.29).

The complainant initially said that she did not remember going to the surgery on 5 March 2019 (15/3/21; T 500;16/3/21; T 507), and then denied that she had attended (16/3/21; T 515). The applicant submits that the complainant’s eventual refusal to accept that she attended on 5 March 2019 may be reflective of her realisation that the absence of any record of that attendance in Ex 18 undermined her evidence that she made near contemporaneous notes of each appointment.

The Crown says that it was no reflection on credibility or reliability that the complainant did not remember whether she went to work after five appointments, or that she did not remember attending an appointment on 5 March 2019. The Crown says that it ought not be assumed the “roster” showed that work fell on the same day it was sent, so there is no reliable record of when the complainant may have worked; and that the jury was best placed to assess whether the tone of the cross-examination at times was argumentative and so eliciting more steadfast responses.

The applicant argues that Ex L, containing the Google Translate messages on the applicant’s phone, further undermines the evidence of the complainant and corroborates his own evidence. As noted above, Ex L only shows the communication from the applicant to the complainant. It records communications during the appointments and some communications then sent as text messages, duplicated in Exhibits G and H. As already noted, the applicant submits that an available inference in regard to Ex L is that it likely captures all of the communications from the applicant to the complainant from the second appointment onwards, due to the complainant’s purportedly limited level of English and the evidence of both the complainant and the applicant.

The applicant says that there are no communications within Ex L that can be said to be inculpatory or amount to an admission as to any of the offences and that they appear to have related to treatment, bookings for appointments and checks on the complainant’s health and welfare. The applicant says that none of the messages in Ex L appear inappropriate, apart from those which occurred on 14 February 2019. The applicant says that the fact that Ex L appears to reflect that the communication exchanges facilitated by Google Translate during the appointments could often be lengthy, undermines the complainant’s evidence that she was unable to express her concerns, questions or complaints to the applicant in regard to his alleged conduct.

The applicant also raises the inconsistency between the complainant’s evidence that, after the appointment on 31 January 2019, she communicated to Mr Cotterell her concerns about the treatment and Mr Cotterell’s evidence as to the date of the complaint being at the end of February (after the falling out between him and the complainant on 14 February 2019) (2/3/22; T 262.22-T 263.50). The applicant says that the timing of the alleged complaint to Mr Cotterell in late February 2019, after his falling out with the complainant, lends further support to the applicant’s evidence that the only sexual contact with the complainant occurred at her instigation on 14 February 2019. (Pausing here, the precise basis for this submission is not clear.) Further, the applicant says this is consistent with the only appointment in which the applicant asked the complainant to remove her underwear being on 31 January 2019, when he used the technique for lymphatic drainage. It is noted that the only other complaint to Mr Cotterell occurred in June 2019.

The applicant also points to inconsistency as to the complainant’s level of ability to speak English.

The applicant points to Mr Cotterell’s evidence (see above) that he had no difficulties in communicating with the complainant in English, provided that he spoke slowly, which the applicant says is consistent with the evidence of Ms Michael and Ms Lee, who had observed Mr Cotterell only speaking in English with the complainant (25/3/21;T 959.46-960.19; 26/3/21; T 1003.33-48). The applicant also points to the evidence of the complainant’s host mother, Ms Stamboulidis, as to her communications with the complainant in English. It is submitted that the complainant’s denial that she said or could have said the word “inappropriately” to Ms Stamboulidis should not be accepted (1/3/22; T 193.24).

The applicant says that there was inconsistent evidence from the complainant as to her level of English at the time of the alleged offences (noting her evidence wavered from being that she has such limited English that she could not express herself at all, to at other times stating that that she communicated using the words such as “yes”, “no”, “stop”, “painful” and “sleepy”, and to having told to Ms Sato (as reflected in Ex M) in relation to Counts 5, 6 and 7, that she had said “why are you doing this to me?”). The applicant says that the complainant’s evidence as to her English ability vacillated throughout her evidence “to adapt to the evidence she was seeking to give at the time of the answer, and she downplayed her level of English ability”. The applicant says that this is undermined by the independent witness evidence and should not be accepted.

It is submitted that the identified deficiencies in the evidence of the complainant, demonstrated individually and cumulatively, give rise to reasonable doubt as to her reliability and credibility. It is further submitted that such a doubt is not able to be resolved by reference to the advantage enjoyed by the trial jury in the second trial (reference being made to what the High Court said in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39]). The applicant submits that, by comparison, his evidence was cogent, consistent and unshaken in cross-examination; that it was further supported by the independent evidence in Exhibits F, L, G and H. It is submitted that, at the very least, the applicant’s account is reasonably possible and, as a result, a verdict of acquittal should be entered. Even if the applicant’s evidence is put to one side, it is submitted that the Court could not be satisfied of the reliability and credibility of the complainant.

The Crown submits that, on an independent assessment of the whole of the evidence at trial, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. In response to the matters raised by the applicant in relation to Ground 2, the Crown submits as follows.

The Crown says that the complainant readily acknowledged that her reference to Valentine’s Day in her text to the applicant that stated “I do not understand. I wanted to know what you think. Ask again. Why did you touch my pussy? Why Valentine’s Day?” was a mistake; and points to the complainant’s account of the applicant’s allegation that she had placed her hands over her underpants on Valentine’s Day (15/3/21; T 485.41). The Crown Prosecutor submitted to the jury that the applicant’s evidence that she instigated sexual contact that day was a poor attempt to explain the content of text messages (10/3/22; T 471.5). The Crown says that it was well open to the jury so to reason. The Crown says that the complainant was not “unable” to provide “a satisfactory response”; rather, that such a submission is but a characterisation that was open for the jury to reject (cf applicant’s submissions at [181]).

Finally, the Crown points to the advantage of the jury in seeing and hearing the witnesses (albeit that the complainant’s evidence was by audio-visual recording). The Crown says that, to a degree, the extent of its advantage can be discerned from the transcript, such as witnessing her become increasingly upset as she gave evidence (2/3/21; T 150). The Crown says that it fell to the jury to evaluate the complainant’s evidence in light of the evidence of others and the jury was best placed to assess the complainant’s general response to cross-examination (citing Lee v R [2023] NSWCCA 70 at [28]).

The Crown notes that this Court proceeds upon the assumption that the complainant’s evidence was assessed by the jury as credible and reliable (Pell at [39]). Insofar as the applicant contends that there were “occasions” where the complainant was said to be “evasive, unresponsive or refused to answer questions”, the Crown says that he only identifies two so-called such occasions from the seven and a half days of cross-examination (see submissions at [167]); and on both occasions, the question was not ultimately pressed (4/3/21; T 229.22-23; 18/3/21; T 604.33-45).

There was no dispute as to the applicable principles on an unreasonable verdict ground (see M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (Dansie)).

This Court must determine whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the applicant is guilty of the offence for which he has been convicted, i.e., whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see Dansie at [8]).

I have reviewed the evidence carefully and I am not left with a reasonable doubt as to the guilt of the applicant.

Addressing the matters raised by the applicant in this context I note as follows.

I do not accept that there should be some apprehension arising from the explanation(s) given by the complainant as to why the complainant made the handwritten contemporaneous notes. It does not appear to me implausible that the complainant may have started making a record of her treatments before any suspicion as to the applicant’s conduct; if for no other reason than that it is not inconsistent with experience of human nature that some people keep diaries or records of things in their personal or professional lives and here was a person having treatment for apparently chronic pain. There is no basis for a suggestion that the notes were made for some nefarious purpose and having been provided with a colour copy of the relevant note it appears that they were handwritten at different times (being in different coloured pens).

Nor does it suggest to me a state of mind that might be overly suspicious or misconstrue events because of some apprehension or suspicion of misconduct from the outset. Rather, the tenor of the notes makes clear the complainant’s concern that she might be misconstruing what had happened or that it might be accidental and is consistent with her explanation that she gave the applicant the benefit of the doubt.

As to the weight placed by the applicant on the fact that some incidents were not recorded in the notes – (such as the touching of genitals in Count 1), this must be treated with some caution given that by this stage (the sixth appointment) what was occurring seems to have been a progression of touching in areas increasingly close to the complainant’s vagina and anus.

I do not accept that the complainant’s answer in cross-examination amounts to a concession that there was no touching of the female genital area and the complaint by the applicant that this could not have occurred when the complainant was lying on her stomach suffers from the problem that the offending was said to have occurred when she lay on her back.

As to the inconsistencies identified by the applicant between the complainant’s notes, Ms Sato’s notes, her evidence and the text communications, given the context and particularly given the possibility for confusion in translation, I do not see these as giving rise to a reasonable doubt. The suggestion that reference to difficulty in translation was some kind of convenient excuse does not grapple with the accredited interpreter’s own recognition of there being some Japanese words with no direct translation into English.

As the Crown submissions make clear, the identified inconsistencies in the evidence of the offences have a logical explanation. The concerns raised by the applicant as to the evidence concerning Ground 13, and the vibrator for example, can readily be explained by the complainant seeing an object on the windowsill and assuming this was the object to which the applicant was referring. That says nothing about the credibility of her evidence as to the applicant licking her vagina.

The applicant focusses on Counts 1, 2 and 7 when submitting that these in isolation should have raised a “reasonable” doubt.

I have already made my observations in relation to Count 1.

Count 2 was touching her genitalia while massaging her groin. The complainant’s notes recorded “same as previous time” – an incident of touching her female genital area. The evidence was that the complainant understood female genital area as including the area of clitoris and vagina. The perceived inconsistency between that and Ms Sato’s note of massaging her vagina and anal areas does not raise reasonable doubt.

Count 7 was digital penetration of her anus. In relation to Count 7, the absence of references in the contemporaneous notes to digital penetration was something the jury could actively take into account, but it needs to be understood by reference to the record in her notes of her reaction to this and her evidence as to the conversation in which she says the applicant said he was not giving her an ordinary regular massage.

The fact that there was no record of this in the notes or Ex L is not conclusive that the exchange did not occur, since there was evidence of deletion of entries in Google Translate from the applicant’s phone.

The complainant’s evidence in cross-examination that she thought he put his finger in her anus does not raise a reasonable doubt, when taken into consideration with her evidence that she felt something inserted in her anus but was lying down and not looking at her anus or his fingers.

The fact that something other than “ordinary regular massage” has occurred and that she had told the applicant she did not want that kind of massage makes understandable the subsequent entry in her notes in relation to the appointment on 14 February 2019 that “there was nothing today” and her subsequent irritation in relation to Count 8 that he had “touched her”.

In between Counts 7 and 8 was, of course, the Valentine’s Day appointment as to which there was a clear dispute between the complainant and the applicant. The later text message from the complainant that refers to Valentine’s Day makes clear that there was an appointment on that day (as the complainant herself accepts). The dispute is as to what occurred on that day (the applicant says consensual sexual contact instigated by the complainant; the complainant says no sexual contact). Unless the complainant was (as she says) simply mistaken as to the date, this seems a clear recognition that there was sexual contact of some kind; and it seems perhaps unlikely that one would readily mistake “Valentine’s Day” for another non-descriptive day.

That said, the applicant’s account is also problematic insofar as, on his own account, there had been no sexual contact between them up to that point; it was shocking to him and caused him to “freeze”; he knew it was inappropriate and unprofessional conduct; and yet he did nothing more than say “stop” and laugh; and then continued to treat the complainant on a number of further occasions.

Ultimately, it was essentially a jury question to determine which account to believe, or some amalgam of the accounts. (The suggestion by the applicant that there was some connection between the break-up of the relationship between Mr Cotterell and the complainant; and the applicant’s text message has no basis in the evidence as far as I can see other than the temporal coincidence between the two.)

Accepting that the evidence of the applicant’s friend Mr Tallai as to the Valentine’s Day incident is credible, it nevertheless does not lead me to doubt that on the occasions on which the complainant did accuse the applicant of inappropriate sexual conduct, such conduct did occur.

As to the significance placed by the complainant on the complainant continuing to attend for treatment, again the jury was best placed to assess the complainant’s credibility as to the explanation for attending. I do not accept that had evidence of her work at the Ginza Club been permitted, this would likely have caused the jury a significant doubt. It does not give rise to a reasonable doubt in my mind. What the complainant did at the Ginza Club does not make implausible or not believable her uncertainty as to whether what was happening in the earlier appointments was accidental or not. It is not implausible that the complainant’s perceptions were affected by the cultural and language differences at play.

Similarly, I place no weight on the fact that the complainant did not give evidence as to the entire scope of the treatment regime; or as to the evidence as to the size of the towel that was used.

I note that the applicant also identified a number of “themes” throughout the complainant’s evidence that were in dispute beyond the denial of the commission of the alleged offences and uncharged acts. First, that the applicant directed the complainant to remove her clothing, resulting in her being treated in her bra and underwear. Second, that in some consultations the applicant directed the complainant to remove her underwear, and in some consultations then removed her underwear himself. Third, that the applicant had, on some occasions after the first appointment, remained in the treatment room, either at the beginning and or end of the appointment, while the complainant was changing her clothes.

Those themes do not cause me to have a reasonable doubt as to the applicant’s guilt. Nor does the evidence of the nutritionist interns in circumstances where there is no suggestion that there was any loud complaint made by the applicant. The risk that the interns might come into the treatment room during treatment says nothing – since the taking of risks of detection is not unknown by those engaged in sexual offending.

As to the contradiction in the evidence as to the timing of complaint to Mr Cotterell, again I see nothing flowing from that. The complainant’s notes herself record that she had raised with Mr Cotterell at an early stage (after Count 1) and the conclusion that the first treatment had been paid for makes it more explicable that the complainant would feel concern to finish the treatment (especially if paid for by Mr Cotterell and she might be called upon to repay it).

As to the submission that the complainant’s credibility was undermined because she could say some words in English, I do not accept this. It is not in dispute (even on the applicant’s case) that the complainant’s level of English was limited – since he used Google Translate with her. The evidence given, through an interpreter, at trial, seems (from a review of the transcript) amply to support the view that she was nowhere near fluent in English. Being able to say “yes”, “no”, “stop”, “painful” or “sleepy” hardly exhibits a mastery of the English language and does not undermine her credibility.

As to the fact that the complainant did not recall attending the 5 March 2019 appointment recorded in Ex F, this does not give rise to a reasonable doubt. The applicant’s evidence was that it was a rescheduled appointment. Whether the complainant forgot about it (as may be the case if it was uncontroversial) or the applicant’s records were again “not up to scratch” (as he seems to have conceded was the case for some of those); this dispute does not in my opinion undermine the credibility of the complainant so as to give rise to a reasonable doubt as to the applicant’s guilt. (The recollection of Ms Michael that the applicant attended on that day does not raise such a doubt given that her recollection was qualified to some degree (she “thought” it was her last day) and it seems inconsistent with her recollection that the complainant attended with a man on the about three occasions she saw her.)

The most compelling evidence in my view is that comprised by the April 2019 messages (see Exhibits DH and L). The applicant’s response to the complainant’s messages, far from being a denial of sexual misconduct (other than the denial of licking her body) accepts that there was sexual contact at least in February and his protestation that he only said he found her sexually attractive to placate her is something that it was open for the jury to find self-serving and implausible.

Having reviewed the evidence, and taking into account the advantage of the jury, I am not left with a reasonable doubt as to the applicant’s guilt on the charges of which he was convicted.

Ground 2 is not therefore made good.

I would extend the time for appeal (having regard to Ms Teague’s explanation for the delay) and would give leave to appeal (having regard to the seriousness of the convictions and the arguable nature of Ground 1); but would dismiss the appeal.

CAMPBELL J: I have had the great advantage of considering the President’s comprehensive judgment in draft. I agree for the reasons expressed by her Honour that Grounds 1(a) and 1(b) have not been made out. I agree with her Honour that it is not necessary to address the operation of Rule 4.15 Supreme Court (Criminal Appeal) Rules 2021 or the proviso to s 6(1) Criminal Appeal Act 1912 (NSW).

I also agree with her Honour’s analysis of Ground 2, the unreasonable verdict Ground. Her Honour’s detailed analysis of the evidence and arguments, with respect, accords very substantially with my own appreciation of the course of the trial garnered from my own consideration of the written record. I observe that the applicant did not raise any complaint about any aspect of the summing up at the second trial. I accept, as the applicant argued, that there were differences in detail between the various accounts in evidence given by or attributed to the complainant. In the abstract these differences were capable of giving rise to a question about the reliability of the complainant’s account in this somewhat complicated case involving 13 counts of sexual offences extending over a period of some 2 months. However, whether the differences were inconsistencies casting a doubt on the reliability of the complainant’s account was quintessentially a matter for the jury. I am satisfied that it was well open to the jury in the exercise of its fact finding powers to reject the applicant’s account and accept the reliability of the complainant’s evidence beyond reasonable doubt. I agree with the orders proposed by the President.

BUTTON J: I agree with Ward P. In my own assessment of ground two, I consider that the text messages of the applicant provide significant support for the Crown proposition that the disputed occasions of sexual contact had indeed occurred.