A rookie Canberra masseur is no criminal mastermind and honestly believed a customer was consenting when he groped her, a court has been told.
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Timothy van Eyle appeared in the ACT Supreme Court on Monday to appeal against a finding that he committed an act of indecency without consent in January 2019.
Special Magistrate Jane Campbell found him guilty of that charge in April, saying the victim had felt too confused and uncomfortable to protest during the incident.
Van Eyle, who had only been working at what was then called Spa Mint in Civic for a few weeks at the time in question, denied doing "anything sexual" to the victim.
During a hearing in the ACT Magistrates Court, he described believing the woman was deliberately exposing her breasts to him because she wanted him to massage them.
He said he asked if she wanted him to massage "the whole" of her chest, though the woman told the court she recalled the masseur enquiring about "the rest" of her chest.
Van Eyle argued her response, "that'd be good", was an expression of consent.
But the woman told the court she had expected van Eyle would focus on muscles, like the pectorals, rather than just "feeling [her] up".
Ms Campbell ultimately accepted the woman's evidence and rejected van Eyle's, describing large parts of his account as "implausible".
In the Supreme Court on Monday, van Eyle's lawyer, Paul Edmonds, said Ms Campbell had provided four reasons for disregarding the masseur's version.
These included that some of van Eyle's statements to police and in court were inconsistent, and that the masseur must have known there was a difference, in the context of a massage, between a woman's breasts and chest.
Mr Edmonds argued each of these reasons was either illogical or based on a misreading of the evidence.
He pointed to the unchallenged evidence that van Eyle had asked, some time after beginning to massage the woman's breasts, if she was OK.
Mr Edmonds said the prosecution had previously claimed this was done as "a smokescreen" to "give [van Eyle] cover".
"[It was alleged] he was, in effect, some criminal mastermind who was thinking ahead to the prospect of being charged and coming up with some elaborate plan to escape criminal liability," the lawyer said.
In reality, according to Mr Edmonds, van Eyle had merely asked if the woman was OK to ensure she was still consenting to what he was doing.
"The obvious question is that if he knew what was doing until to this point was without consent, why would he check about consent for the remainder of his conduct?," Mr Edmonds said.
"[Van Eyle] was very conscious of seeking and obtaining consent."
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Mr Edmonds said it was conceded that the woman had not in fact consented, but he said this was "an instance of honest misinterpretation" where van Eyle had neither known, nor been reckless about, the woman's lack of consent as required by the charge.
He argued his client should therefore be acquitted or, if Justice Chrissa Loukas-Karlsson deemed it appropriate, sent back to the Magistrates Court for his case to be heard again.
But in brief oral submissions, prosecutor Sofia Janackovic argued there was nothing wrong with Ms Campbell's decision.
"No reasonable doubt ought to have been held and the [guilty] verdict was reasonable," she said.
Justice Loukas-Karlsson ultimately gave Ms Janackovic time to provide further written submissions ahead of the case's next listing on September 10.
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