A masseur found guilty of an indecency charge has been acquitted on appeal, with a judge saying the man's massaging of a client's breasts was "susceptible to misinterpretation" and it was possible he believed the woman was consenting.
"On the evidence, I must return a verdict of not guilty," Justice Chrissa Loukas-Karlsson said in an ACT Supreme Court judgment published on Friday.
This overturned the April 2021 decision of special magistrate Jane Campbell, who had found Timothy van Eyle guilty of committing an act of indecency without consent.
During the original hearing, the ACT Magistrates Court heard Mr van Eyle had only just started working at Spa Mint, in Civic, when he gave a woman a full body massage in January 2019.
The woman gave evidence that Mr van Eyle was massaging around her chest and collarbone area when he asked: "Do you want me to do the rest of your chest?"
She said she responded in the affirmative because, while she was unsure exactly what that would entail, she did not believe it would involve her breasts being touched.
The woman claimed, however, that Mr van Eyle proceeded to expose her breasts before "fondling them in a sexual manner" instead of focusing on muscles as she had expected.
"She explained that she felt confused and uncomfortable about the incident," Ms Campbell said.
Mr van Eyle gave evidence that he had not done "anything sexual" to the woman, claiming he had used standard relaxation techniques and not touched her nipples.
He also said he had asked the client about "the whole of [her] chest", rather than "the rest".
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After hearing the appeal, Justice Loukas-Karlsson said the key issue was whether Mr van Eyle had been reckless about the woman's lack of consent to him touching her breasts.
"This is a case in which the conduct is susceptible to misinterpretation," the judge said.
"It is entirely reasonably possible on examining all the evidence that the [woman] and [Mr van Eyle] have both honestly reported different perceptions of the treatment. In my view, that is a reasonable possibility in this case.
"That is, it is a reasonable possibility that [Mr van Eyle] was giving truthful evidence when he testified that he believed the [woman] had indicated consent to the massage he undertook."
Mr van Eyle's lawyer, Paul Edmonds, told The Canberra Times the man was "relieved that justice has been done in his matter and that his name has been cleared".
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