KAREN PATRICIA BEGLEY SA POLICE No. SCGRG 94/1969 Judgment No. 5851 Number of Pages - 6 Statutes

[1996] SASC 5851

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), BOLLEN(2) AND NYLAND(3) JJ

CWDS
Statutes - acts of parliament - interpretation - particular words and phrases - appellant conducted business offering nude Thai massage - customer and masseuse both naked - evidence that some customers sexually gratified - appeal against finding that nude Thai massage constituted an act of prostitution - meaning of "prostitution" - sexual intercourse not necessary for prostitution to occur - not necessary for every customer to gain sexual gratification - sexual gratification likely in ordinary course of things - masseuse offering use of body for fee - intended to provide sexual pleasure - appeal dismissed. Summary Offences Act 1953s 4(1),s 28 and s 21(1); Magistrates Court Act 1991s 42(5)(a), referred to. R v Webb (1964)
(1964) 1 QB 357, applied. Poiner v Hannes Ex parte Poiner (1987) 2 Qd.R.242, discussed. R v De Munck (1918) 1 KB 635; Samuels v Bosch
(1972) 127 CLR 517, considered.

HRNG ADELAIDE, 10 July 1996 #DATE 24:10:1996

Counsel for appellant:     Mr W J N Wells QC

Solicitors for appellant:    Mangan Ey and Associates Pty Ltd

Counsel for respondent:     Mr A P Moss

Solicitors for respondent: Crown Solicitor's Office

ORDER
Appeal dismissed,

JUDGE1 DOYLE CJ
1. This appeal turns upon the meaning of the word "prostitution" in the Summary Offences Act 1953 ("the Act"). In particular, the question is whether what was described in evidence as a "nude Thai massage" was an act of prostitution.

2. The appellant was charged in the Magistrates Court with keeping a brothel contrary to s28 of the Act. Under that section a brothel is defined to mean premises:
    "(a) to which persons resort for the purpose of prostitution; or
    (b) occupied or used for the purpose of prostitution." The magistrate found this charge proved and recorded a conviction.

3. The appellant was also charged with being the occupier of premises frequented by prostitutes, contrary to s21(1) of the Act. The magistrate found this charge proved but dismissed it.

4. The Act does not define "prostitute", although in s4(1) it is provided that a prostitute includes "any male person who prostitutes his body for fee or reward".

5. The appellant appealed against the conviction and against the finding that the second count was proved. That appeal was heard by a single judge of this court and was dismissed. A number of grounds not presently relevant were also argued on that appeal. The order dismissing the appeal deals only with the appeal against conviction. So does the notice of appeal against that order. However, on appeal the court heard argument which challenged the conviction and the finding that count two was proved. We indicated that we would, if necessary, exercise our powers under s42(5)(a) of the MagistratesCourt Act 1991 to deal with the finding in relation to count two, the correctness of that finding not having been raised by the notice of appeal.

6. The order granting leave to appeal limited the appeal to the question of whether the facts as found amounted to an act of prostitution, and accordingly it is not necessary to deal with other issues argued upon the appeal to a single judge of this court.

7. Evidence was given before the magistrate by a customer who received a nude Thai massage. According to the magistrate the customer said that during this massage the customer was naked, and lay face down upon a massage table. The masseuse was also naked during the massage. The masseuse knelt between the legs of the customer to carry out the massage. The appellant also gave evidence. Her evidence was to much the same effect. She said that the massage was done only to the back of the customerÕs body. She said that the massage involved the application of the hands and forearm of the masseuse to the back of the customerÕs body. That is, to the back itself and the back of the legs. She said that it involved pressing one hand down onto the other hand or wrist, applying pressure and then sliding the forearm up and down the back or legs of the customer. I gather that the masseuse knelt between the legs of the customer to make it easier to apply the appropriate pressure to the customerÕs back and legs.

8. The appellant gave two reasons for the masseuse being naked. First of all, it was a business stratagem designed to attract customers. Her words were "tits sell". That does not explain the masseuse being completely naked. She also said that if the masseuse was nude she did not have to worry about the oil, applied to the customer, getting on her clothes. Nor did she have to worry about perspiring. The magistrate described that reasoning as "an unconvincing rationalisation". I agree. Apparently in argument before the single judge it was submitted that another reason for the masseuse being naked was that this would make the customer feel more comfortable with his own nudity. The single judge was not inclined to accept that, nor am I.

9. There was some evidence about the behaviour of customers. Apparently the appellant acknowledged in evidence, as one would have thought she had to, that some male customers found the process sexually stimulating and experienced erections during massages. When asked if many customers got erections, her answer to the question was:"Some, not many. They are generally more embarrassed than you are - than I am." She was also questioned about whether customers ejaculated. The relevant evidence is as follows:
    "A. Well, only by, when they have gone there is this wet patch on
    the bench, and you realise that that has happened. That has
    happened a few times, and that has happened on buses to men, too.
    Q. On what do you base that comment?
    A. That sometimes the erection of the penis isnÕt directly
    correlating to the manÕs state of mind, it can happen despite what
    he wants to happen, it is embarrassing for him. I mean, a massage
    is a physically pleasing thing, you know when you are massaging
    someone they should feel relaxed, they should feel good. An
    erection isnÕt something that you want to happen, or he wants to
    happen either."

10. The effect of the appellantÕs evidence was, as I understand it, that a nude Thai massage was nothing more than a massage, pretty much as one might get from a physiotherapist or any masseur or masseuse. There were practical and commercial reasons for the masseuse being naked, and practical reasons for the position which she adopted between the legs of the client. The clientÕs own nakedness was, presumably, intended only to enhance the relaxing effect which, as is common knowledge, most massages achieve. Any sexual arousal or excitement on the part of the customer was an unwanted and perhaps unfortunate by-product of a procedure which was intended to provide no more than relaxation. From the appellantÕs point of view, she was simply offering a relaxing massage. If customers wanted or expected or experienced something more, that was for them, because she was not offering anything more than a relaxing massage.

11. The magistrate who heard the evidence found that the massage practised at the appellantÕs premises "was designed by the defendant to provide sexual pleasure to male customers of the business". He rejected the appellantÕs evidence "as unreliable" to the extent that it was inconsistent with that finding. He also was satisfied beyond reasonable doubt, by way of inference, that the masseuse was "offering herself as a participant in physical acts which, in the circumstances, were designed to arouse erotic impulses and feelings for the customerÕs sexual gratification".

12. The judge who heard the appeal agreed in substance with the magistrate. He was satisfied that the physical proximity between masseuse and customer indicated that "the sexual gratification of the client must have been intended". He found that the masseuse was naked "for the purpose of lewdness and for the sexual gratification of the client". He did not accept the appellantÕs evidence to the effect that she "discouraged interest in sexual gratification". He said:"É it would be naive to think that this act was done for any purpose other than the sexual gratification of the client."

13. It is in the context of those facts and findings that the appeal was argued before us.

14. The meaning of prostitution has been considered in a number of cases. I can think of no reason why what is said in those cases should not be regarded as relevant to the meaning of the term in the Act. At the same time I recognise that one has to be careful in reasoning by way of analogy from case to case. There is a danger of extending the meaning of prostitution beyond acceptable limits if one confines oneself to looking for analogies with decided cases.

15. Most of the cases on the topic refer with approval to what Darling J said in R v De Munck (1918) 1 KB 635. That was a case in which the main issue seems to have been whether proof that sexual intercourse had not taken place meant that a conviction for procuring a person to be a prostitute could not stand. There was evidence upon which the jury might have concluded that the woman concerned had been in private with men in circumstances which, but for the medical evidence indicating the woman was a virgin, would suggest that she had had intercourse with them. It was in that context that Darling J said
(637): "... prostitution is proved if it be shown that a woman offers her body commonly for lewdness for payment in return". In R v Webb
(1964) 1 QB 357 the court took this decision as establishing that the court was (365): "... clearly treating lewdness in the expression they used as not confined to the gratification of normal sexual appetite". The court saw no reason to depart from this approach. In that case a conviction for procuring a woman to become a prostitute and for living on the earnings of prostitution was upheld. The evidence indicates that in that case the women concerned massaged clients and, upon request, masturbated them.

16. It is quite clear from this and other cases that prostitution does not necessarily involve sexual intercourse.

17. To modern eyes and ears the language of Darling J has a slightly archaic ring to it. Nor, I think, should it be treated as if it were a definition in a statute.

18. The meaning of "prostitution" was considered in passing by some members of the High Court in Samuels v Bosch (1972) 127 CLR 517. In that case McTiernan J (519) expressly approved of an observation by Bray CJ in the judgment under appeal that it was " ... an essential element of prostitution that the woman must offer herself sexually for hire ... ". In the same case Menzies J (521) said that women used premises for prostitution if they were there: " ... to offer their bodies to men for money." Gibbs J referred with approval (524) to the words of Darling J and to the judgment of the court in R v Webb (supra).

19. There is a useful consideration of the meaning of prostitution in Poiner v Hannes Ex parte Poiner (1987) 2 Qd. R. 242 by Demack J. The other two members of the court agreed with his judgment. He said that the derivation of the word prostitute from the latin, and the meaning of the latin word, was a reminder " ... that the aspect of sale or gain is central to the meaning of the word". (246) He went on to say that the meaning included "an aspect of indiscriminate or public offering". He then said (246):
    "What is offered for sale, or exploited for gain, is the
    gratification of sexual appetites, something which changes
    according to contemporary preferences. These preferences are
    determined by the customers, rather than the courts. No doubt
    there will always be debate about whether a particular method of
    gratification of a sexual appetite for award can properly be
    categorised as prostitution ... Such debates can only be
    resolved in individual cases, and cannot be resolved by attempting
    to make a final conclusive definition of the meaning of the word
    prostitute". I respectfully agree with all that he said.

20. I have also found helpful the following remark by Bain J in R v Mickle (1978) NZLR 720 at 722:" ... prostitution is proved if it be shown that a woman actively or passively offers her body commonly for physical acts of indecency for the sexual gratification of men." I do not think that a reference to the cases on the topic is capable of advancing the matter much beyond that. As counsel for the appellant argued, correctly in my opinion, the essence of prostitution is the offering of the body for hire for the gratification or satisfaction of sexual appetites.

21. In the light of that reference to the case law, I return to the facts.

22. What was offered in the present case? As to that, the magistrate who heard the evidence has made findings which I have summarised above. I do not consider that there is any basis upon which his findings could be said to be wrong. Having heard the evidence about the nature of the massage and the manner in which it was provided, and having heard the explanation offered by the appellant for the nudity of the masseuse and customer, and for the manner in which the massage was carried out, he was satisfied that the massage was designed to provide sexual pleasure to customers. By that I take him to mean intended to and likely to provide sexual pleasure. That was a finding with which the single judge who heard the appeal agreed in substance. He also was satisfied that the circumstances under which the massage was performed established that it was carried out for the sexual gratification of the client.

23. In my opinion, in the light of those findings, there is no basis for challenging the conclusions which the magistrate reached, namely, that each charge was proved.

24. It was not necessary for the magistrate to find that every customer did or would gain sexual gratification from the massage. What he had to look at was what was likely in the ordinary course of things, and whether that result was one which was intended by the appellant. My impression is that he did not accept the appellantÕs claimed indifference about the effect of the massage upon the customerÕs sexual appetites, but quite apart from that I take the magistrate to have found that the appellant was aware of that likely effect and, in my opinion, that suffices.

25. The truth of the matter is that the appellant was not simply offering a relaxing massage, using the attraction of the naked body of the masseuse as a selling technique, in much the same way as one might use attractive surroundings or some other matter incidental to the massage itself. Of course, the massage was intended to and would provide for all customers relaxation and relief from stress, and no doubt a general feeling of well being. But the fact is that, on the magistrateÕs findings, with which I agree, the massage was carried out in a manner which was likely to cause sexual arousal (resulting in ejaculation) on the part of a significant number of customers, and likely to give sexual gratification to a significant number of customers. That was the nature of the service offered, and on the magistrateÕs findings the appellant was well aware of that. In my opinion this was not a situation in which one could say that sexual arousal or sexual gratification was the unintended result of a procedure which was not intended or designed to produce that result.

26. It follows that I reject the argument advanced by the appellant that a distinction had to be drawn between what was offered by the appellant, through those whom she employed, and what the customer might expect or gain from the massage.

27. It follows, in my opinion, that this was a case in which the masseuse offered the use of her body, to a customer who was prepared to pay the appropriate fee, for the purposes of a procedure carried out by the masseuse which was intended to and likely to provide sexual gratification to the customer.

28. In my opinion to conclude that that amounts to an act of prostitution is not to carry the meaning of prostitution to undesirable limits. I cannot see much difference between this case and R v Webb (1964) 1 QB 357. It does not follow from this that any conduct likely to cause sexual gratification of any type is prostitution. For example, it does not follow that a woman who performs an erotic striptease in front of men, or who allows an indecent film of herself to be exhibited, necessarily performs an act of prostitution, assuming of course that the element of payment is present. In the present case one has the combination of the masseuse being present in person (as distinct from represented in a film), engaging in physical contact with the client (in contrast to a striptease), that physical contact being a significant part of the whole process, and through that physical contact and the manner in which it is performed providing sexual gratification to the customer. It is the combination of these features which satisfies me that the nude Thai massage as described in evidence was an act of prostitution.

29. For those reasons I would dismiss the appeal.

JUDGE2 BOLLEN J
30. I agree with the reasoning of the Chief Justice. I would dismiss the appeal.

JUDGE3 NYLAND J
31. I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice. I have nothing further to add.