Johns v Tallmadge

[2006] QDC 421

[2006] QDC 421

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD 2462 of 2006

ANTHONY JAMES JOHNS	Appellant (Plaintiff)
and
LISA JOANNA TALLMADGE	Respondent (Defendant)

BRISBANE

..DATE 04/12/2006

JUDGMENT

Catchwords

Justices Act 1886 s 222, s 223, s 225 - appeal to District Court from dismissal of charges relating to advertising "services offered" contrary to s 93 of the Prostitution Act 1999 - Magistrate had no or insufficient evidence to conclude that the advertisement on a page of a website generally related to premises in Queensland which page was headed
"Tours - Sydney" did not relate to prostitution services provided in Queensland (as well as Sydney).

HIS HONOUR: This is a prosecutor's appeal under s 222 of the Justices Act 1886 against a Magistrate's determination that her Court had no jurisdiction to entertain two charges against the respondent under section 93 of the Prostitution Act 1999.

The first charge was under subsection(1) of publishing an advertisement for prostitution that "describes the services offered".  The second charge was brought under subsection (2) and related to publishing an advertisement for prostitution that was "not in the approved form".

At the outset before the Magistrate Mr de Batista, the respondent's counsel indicated that he wished to raise a point of law as to whether the Act actually covered the defendant's conduct.  "We can either deal with that point of law at the outset [or] I'm happy to deal with it at the end of the evidence".

The Magistrate showed some enthusiasm for hearing the argument in advance of the taking of evidence but stated "I probably would reserve a determination until the conclusion of the matter".  For all that appears no exhibits were tendered although duplicate copies of the notices to appear 10827114 and 10827113 have been transmitted to this Court by the Magistrates Court and it is apparent that the Magistrate had a hard copy or hard copies of some material which had been downloaded from an internet website which the prosecution say is associated with the respondent.
There was talk of the Magistrate having a magnifying glass to assist her reading of the printed material.  Page 24 of the transcript has the prosecution Sergeant Rantalla offering to tender a page and receiving the Magistrate's thanks.

The sergeant went on to say that there was no laptop available to be able to view the material on a CD which had been described as available on page 23.  The sergeant had told her Honour that the arresting officer had prepared "an image on a CD as to exactly how the website presents...so your Honour could peruse it and see how in real life it would be viewed and perhaps would be easier than looking at this tiny writing on the paper".

Mr de Batista indicated, as one would expect of any counsel, that he would wish to see the CD before it was made available to the Magistrate.  It is totally mysterious at the moment whether it was made available to her.  There occurred some things which were not recorded following her return after the luncheon adjournment.

No one present in Court today has any confidence that if printed material or the CD were given into the custody of the Magistrates Court it would easily be retrieved for viewing now. 

The Magistrate published reasons to the parties on her return from lunch which culminated in the dismissal of the charges for lack of jurisdiction. 
The view was taken that the purpose of the Prostitution Act of regulating prostitution in Queensland governed, with the consequence that the allegedly offending internet advertising was not caught because it related to services that were to be offered in New South Wales.

The page on the website which described services in some detail was apparently headed "Tour Page - Sydney" and called up by some process such as clicking a mouse on an icon indicating tours.  My understanding that what might have been advertised was tours in which clients might be taken to Sydney is at variance with Mr Nolan's advice that so far as there might be touring it would be by the respondent alone so that she might be available to clients in Sydney. 

That confusion underlines the overall difficulty in this matter which is the total or almost total lack of evidence against which the Magistrate made her determination.  It may have been a determination made to the surprise of the participants when the Court adjourned for lunch.  As matters stood Mr de Batista was still anxious to view the CD before it was presented to the Court.

Sergeant Rantalla had in much the same way as a Crown prosecutor opens a case to a jury given an overview of what the prosecution contended the facts to be to her Honour.  Those were that the respondent operated from premises at Kuraby in Queensland and had placed or caused to be placed advertisements on the internet. 
It was indicated that the web site referred to the respondent's local base.  In relation to any activities there it was not contended that there was any description of the services offered.  Sergeant Rantalla had submitted to the Magistrate at page 3 that while the respondent contended that;

"the website actually is directed at clients within New South Wales however it's on a website that advertises services to Queensland customers as well so it's all interrelated".

The sergeant placed much reliance on the High Court's decision in Dow Jones and Company Inc v Gutnick [2002] HCA 56; 194 ALR 433 which tended to establish a publication in Queensland given that publication was held to have occurred in Victoria of material downloaded there which had been uploaded on to the worldwide web in the United States. Victoria was held to be the place of appropriate jurisdiction to entertain a defamation claim by a resident of Victoria.

Really, this case is very different from that.  With respect to her Honour I think she erred in regarding the prosecution as agreeing that the description of the services offered was confined to a description of services offered outside Queensland.  What her Honour noted was the prosecutor's agreement "that the publication that describes the services offered was confined to the site entitled 'Tour Page - Sydney'".

In my opinion, the sergeant was communicating to the Court the concern that the description of the services under the heading of Sydney was tantamount to an advertisement that similar services would be available in Queensland.  In my opinion, it may well turn out to be the case, that the website must be viewed as a whole as a single advertisement, and not approached by reference to its component parts or pages.   Although her Honour called  a "Tour - Sydney" a "site", it seems to me that it was a part of a single site which the prosecution contends is associated with the respondent in a relevant way; it remains to be seen whether it can be established.

I have been very concerned today not to inappropriately assist the prosecution to have two bites of the cherry, so to speak, by changing the way in which this case is formulated in the face of an unexpected reverse in the form of her Honour's decision. 

In this instance it seems to me that decision was made somewhat peremptorily, and with both Sergeant Rantalla and Mr De Batista expecting that there would have been more material before the Court.  I think it is a situation in which the jurisdictional argument was capable of determination only on the basis of sufficient evidence being before the Court, and there was not sufficient evidence before the Court.

I may say that, for purposes of today, at least, I accept that the Prostitution Act is designed to regulate prostitution activities which would physically occur in this State, and that the Act is unlikely to have any valid effect in respect of advertising in this State of services that may be offered elsewhere, but not in Queensland. I think that, below, the prosecutor was attempting to get before her Honour a case of advertising of activities that might occur in Queensland, whether or not they occurred also in New South Wales and other places, and that the Magistrate failed to appreciate that.

The Court therefore sets aside the order of the Magistrate dismissing the charges. The next question is how they ought to proceed. Mr Nolan has vacillated as to whether there ought to be a rehearing under section 223 which would occur in this Court. As it happens, there is no evidence whatsoever available at this stage, so that rehearing would have to occur on the basis of evidence to be adduced in this Court.

The alternative is to make an order under section 225 of The Justices Act, returning the matter to the Magistrates Court. That is what Mr Katter was seeking, although he indicated he would not raise difficulties in the way of further proceedings occurring in this Court. I am entirely neutral about the matter. It is common ground that the matter can not proceed further today. Mr Nolan's expectation is that there will be an agreed statement of facts at some point that would make time to achieve.

Order as per initialled draft. It allows the appeal against the Magistrate's orders and remits the matter to the Magistrates Court under s 225.

...

HIS HONOUR: The defendant respondent is to have a certificate under section 15 of the Appeal Costs Fund Act 1973 to protect her.

...

HIS HONOUR:  To protect her in respect of her own costs and the costs she must pay the appellant.

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