'Fondling' masseur's guilt upheld after five years, three appeals

Timothy van Eyle only had two or three weeks of experience at Civic's Spa Mint in early 2019, when he massaged a woman and left her feeling "confused and uncomfortable".

In an ACT Supreme Court decision published on Thursday, half a decade later, his bid for innocence was dismissed.

In April 2021, following a two-day hearing, magistrate Jane Campbell largely rejected the man's evidence as "implausible" when she initially found him guilty of committing an act of indecency.

The magistrate instead accepted the evidence of the victim, who told the court van Eyle had moved the sheet covering her breasts and exposed them, before "fondling them in a sexual manner".

But in January 2022, van Eyle successfully appealed the guilty finding in the Supreme Court.

A key question in the case had been whether van Eyle asked the client if she wanted him to massage the "whole" of her chest, as he claimed, or the "rest" of it, as she did.

The victim said she only accepted because she didn't expect the offer to mean her breasts would be touched.

The man's evidence was he had not done "anything sexual" to the woman and used standard massaging techniques without touching her nipples.

Justice Chrissa Loukas-Karlsson ultimately found the man not guilty and said: "This is a case in which the conduct is susceptible to misinterpretation."

The saga didn't end there, with then-Director of Public Prosecutions Shane Drumgold SC taking the successful appeal to the ACT Court of Appeals.

In December 2022, a full bench found that Justice Loukas-Karlsson erred while deciding to acquit van Eyle and the case was sent back to the Supreme Court.

Van Eyle's appeal against his initial guilty verdict was therefore once again heard, this time by Justice Verity McWilliam.

MORE COURT AND CRIME NEWS:

This week, Justice McWilliam dismissed van Eyle's appeal and rejected his claims the verdict was unreasonable or the sentencing magistrate had failed to give adequate reasons for that verdict.

The judge found no reasonable doubt in the victim's evidence, unlike in van Eyle's, about what parts of her body were touched, how they were touched and whether she consented to that touching.

"Whatever led [van Eyle] asking, 'do you want me to massage the rest of your chest'," Justice McWilliam said.

"On no view of the evidence did [he] understand an affirmative answer to that question to be permission to sexually touch the complainant's breasts, including her nipples and areolae."