ACT Court of Appeal sets aside judge's decision to acquit masseur Timothy Van Eyle of indecency

Timothy Van Eyle had only been working at a Civic spa for two or three weeks when, in January 2019, he performed a massage that left a woman "confused and uncomfortable".

During a two-day hearing in the ACT Magistrates Court last year, the woman gave evidence that Van Eyle had asked if she wanted him to "do the rest of your chest".

She told the court she had agreed, not expecting it would involve the touching of her breasts.

According to the woman, Van Eyle proceeded to expose her breasts before "fondling them in ... what [she] perceived to be quite a sexual manner".

"It very much felt like feeling me up," the woman said of what had occurred at Spa Mint, which has since been rebranded as Mint 'n Co Massage.

Van Eyle, on the other hand, claimed he had asked if the woman wanted him to massage "the whole" of her chest after forming the opinion she was deliberately exposing herself.

He said she had told him "that'd be good", leaving him with the impression she had consented to the touching of her breasts.

Van Eyle denied touching the woman's nipples or cupping her breasts, however, saying "that would be sexual" and he was just trying to help her relax and feel "sleepy".

"I wasn't doing any nipple things or anything like that," he said in his evidence, insisting he had applied standard techniques and denying he felt sexually aroused at any stage.

Magistrate Jane Campbell largely rejected Van Eyle's evidence as "implausible" in April 2021, when she found him guilty of committing an act of indecency without consent.

Van Eyle later challenged the guilty verdict in the ACT Supreme Court, where defence lawyer Paul Edmonds argued it was unsafe or unsatisfactory.

Justice Chrissa Loukas-Karlsson upheld the appeal in January, when she said "the conduct complained of is inherently highly susceptible to misinterpretation".

"It is possible that the two participants in an incident of this sort could quite honestly report entirely difference perceptions of how the beauty treatment was administered," she said.

In light of that finding, Justice Loukas-Karlsson said she must acquit Van Eyle.

But that was not the end of the matter, with ACT Director of Public Prosecutions Shane Drumgold SC challenging the masseur's successful appeal on three grounds in August.

These included that Justice Loukas-Karlsson had erred by failing to apply, or misapplying, the legal test to determine whether a guilty verdict was unreasonable or could not be supported by the evidence, and that she had made "illogical and unreasonable" findings.

Three ACT Court of Appeal judges upheld Mr Drumgold's appeal in a decision handed down on Friday, but for different reasons.

Chief Justice Lucy McCallum and Justice Geoffrey Kennett agreed with the argument about "illogical and unreasonable" findings, with the former saying Justice Loukas-Karlsson had accepted the touching that occurred in this case had a sexual connotation.

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Chief Justice McCallum said this did not sit logically alongside the finding about the conduct being "susceptible to misinterpretation", nor did it mesh with five other reasons Justice Loukas-Karlsson had given for entertaining a doubt about Van Eyle's guilt.

Justice Kennett agreed, and also said Justice Loukas-Karlsson's reasoning had, in effect, "upheld a ground of appeal that had not been pleaded".

Justice David Mossop, meanwhile, said a legal precedent had required Justice Loukas-Karlsson to determine the appeal by considering whether the conclusion reached by Ms Campbell had been open on the evidence given during the original hearing.

He said Justice Loukas-Karlsson had instead found her own doubts about Van Eyle's guilt, without expressly considering whether Ms Campbell's conclusion had been open to her.

In those circumstances, the appeal judges set aside Justice Loukas-Karlsson's decision to overturn the finding of guilt and remitted the matter to the Supreme Court for rehearing.

Justice Mossop said Van Eyle's appeal against the finding would need to be heard again, by a judge other than Justice Loukas-Karlsson, and "determined according to law".

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