Karen Patricia Begley v SA Police No. SCGRG 94/1969 Judgment No. 4995 Number of Pages 17 Criminal Law and Procedure (1995) 66 Sasr 514

[1995] SASC 4995

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LANDER J

CWDS
Criminal law and procedure - Discussion of proper approach to and correct exercise of discretion to grant a voir dire - Magistrate correct in refusing to grant a voir dire. Held - no merit in proposition that alleged impropriety in investigation techniques or taking of statement from witness has capacity to taint voluntary oral evidence given on oath by witness and thereby render it inadmissible.

Nude Thai massage correctly found to be an act of prostitution. Held - an act of prostitution requires no act of sexual intercourse or ejaculation but does require a lewd offering of the body for use as opposed to simply for view, involving contact between the person accused and the person using the body for his or her sexual gratification.

Summons requiring production of documentation revealing names of people cautioned, questioned or interviewed by police at premises correctly set aside - incorrect use of subpoena process. Summary Offences Acts 4(1), s 21, s 28. Furnell v Betts 20 SASR 300; R v Williams (1976) 14 SASR 1; R v De Munck
(1918) 1 KB 635; R V Webb (1964) 1 QB 357; Ex-Parte Fergusson: Re Olah Pty Ltd
(1970) 1 NSWR 713; Samuels v Bosch (1972) 127 CLR 517; Neilson v SA Police (Unreported Judgment 4549 delivered 13th May 1994); Carter v Hayes (1994) 61 SASR 451; R v White (1976) 13 SASR 277 and Hunt v Wark and Ors. (1985) 40 SASR
489, applied. Bunning v Cross (1978) 141 CLR 54; Pollard v R (1992) 67 ALJR
193 and Foster v R (1993) 67 ALJR 550, distinguished. R v Morris-Lowe (1985) All ER 400 and R v McFarlane (1994) 2 WLR 494 considered.

HRNG ADELAIDE, 20 December 1994 #DATE 10:3:1995 #ADD 1:5:1995

Counsel for appellant:     Mr D. Peek

Solicitors for appellant:    Mr R. Bleechmore

Counsel for respondent:     Mr M. Stevens

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed

JUDGE1 LANDER J This is an appeal against the decision of a magistrate convicting the appellant, Karen Patricia Begley, of an offence against provisions of the Summary Offences Act, 1953.

2. The appellant was charged on complaint that:
    1. On the 25th day of November, 1993, at College Park she
    kept a brothel situated at 39 Payneham Road, contrary to
    section 28 of the Act, and that

2. On the same date and at the same place she was the
    occupier of premises frequented by "reputed" prostitutes
    (sic), contrary to section 21 of the Act.

3. A third count, that on the same date she was without reasonable cause in the same premises, frequented by repeated prostitutes, was withdrawn at the commencement of the hearing.

4. On the first count she was convicted and fined $100. Count 2 was dismissed without conviction or penalty.

5. Section 28 of the Summary Offences Act provides:-
    "28. (1) A person who -
    (a) keeps or manages a brothel, or assists in keeping or
    managing a brothel;

or

(b) receives money paid in a brothel in respect of
    prostitution,
    is guilty of an offence.

Penalty: For a first offence - Division 8 fine or division
    7 imprisonment.

(2) A person who acts or behaves as master or mistress,
    or as a person having the control or management, of a
    brothel will, for the purposes of this section, be taken to
    keep that brothel, whether he or she is not the keeper."

6. "Brothel" is defined for the purposes of S.28 to mean:-
    "'Brothel' means premises -

(a) to which persons resort for the purpose of
    prostitution; or

(b) occupied or used for the purpose of prostitution;"

7. Section 21 of the same Act provides:-

"(1) A person who -

(a) is the occupier of premises frequented by reputed
    thieves, prostitutes, persons without lawful means of
    support or persons of notoriously bad character; or

(b) is, without reasonable excuse, in premises
    frequented by any such persons,

is guilty of an offence.

Penalty: Division 9 fine.

(2) In a prosecution under this section, it is not
    necessary for the prosecutor to prove that the defendant
    knew that the persons frequenting the premises were reputed
    thieves, prostitutes, persons without lawful means of
    support or persons of notoriously bad character, but it is a
    defence that the defendant did not know and could not, by
    the exercise of reasonable diligence, have ascertained that
    the person frequenting the premises were such persons."

8. According to the definition in section 4(1) of the Act, unless the contrary intention appears, "prostitute" includes any male person who prostitutes his body for fee or reward.

9. It was necessary for the prosecution to establish beyond reasonable doubt in relation to the first count, the following elements:-
    1. the premises referred to in the complaint were premises;

(a) to which persons resorted for the purpose of
    prostitution, or were

(b) occupied or used for the purpose of prostitution.

2. that the appellant kept that brothel by -

(a) acting or behaving as the mistress of the brothel,
    or

(b) having control of the management of the brothel.

3. that the appellant knew that those premises were used for
    either of the purposes mentioned in point 1 above.

10. In relation to the second count, it was necessary for the prosecution to prove:-
    1. that she was the occupier of the premises,
    2. that the premises were frequented by prostitutes.

11. The prosecution alleged that the "Body Link" premises were used as a brothel, frequented by prostitutes and used for the purpose of prostitution all of which was known to the appellant. The particular allegations at trial were that on the 14th of November 1993 and eleven days later on the 25th acts of prostitution took place at the premises. The particular acts were constituted by a naked female massaging a naked male customer and masturbating him.

12. The prosecutor called six witnesses. Four were police officers who were, at the time, members of Operation Patriot; an operation for the policing of offences related to prostitution. The officers gave evidence of the operation which involved observations of and enquiries into the activities at the "Body Link" premises. Two customers of Body Link, William Ninnes and John Arnold were also called to give evidence of their respective visits to Body Link, Ninnes on the 14th of November 1993 and Arnold on the 25th of November 1993. They stated that they received "hand relief" or hand-to-genital masturbation from a masseuse at Body Link, Karen Carmichael. Arnold also described the masseuse using the front of her body to massage his back. The reception of the evidence of Ninnes and Arnold was objected to at trial and constitutes one of the grounds of appeal. I will return to that evidence in due course.

13. Exhibits were also tendered: 28 photographs of the "Body Link" premises together with a list describing the first 26 photographs. Also tendered were a folder described as "a staff instruction folder" and sheets of paper dated Sunday 14-25/11/93 with hand written entries in columns. These documents were seized by police officers from the reception desk of the premises on the 25th of November 1993.

14. It was necessary for the complainant to prove the authority of the Commissioner of Police or a Superintendent or Inspector of Police for the bringing of the prosecution (s30). That was done by the tender of the complainant which bore an authority under the hand of Superintendent Whittington. Nothing turns on that matter.

15. At the trial objection was raised to the evidence of Ninnes and Arnold. Further, there was objection to evidence from one of the police officers, Sergeant Slape, where he deposed to a telephone call between himself and an unidentified female at the premises of Body Link in about early October 1993.

16. The learned Magistrate did not rule upon the objections at the time the objections were made, nor did he accede to counsel's application to conduct a voir dire hearing to determine the admissibility of the evidence of Ninnes and Arnold. Instead, he took the evidence de bene esse and deferred ruling on the objections until the completion of the defence case.

17. Ms Begley gave evidence in her defence. She admitted that on the 25th November 1993 she was the proprietor and manager of the "Body Link" business conducted at 39 Payneham Road, College Park. She was also a masseuse. She said that the business offered a range of massages including full body and nude Thai massages. She denied that the full body massages and nude Thai massages available at "Body Link" were acts of prostitution or that the premises were used for prostitution or that the premises were frequented by prostitutes.

18. She described a nude Thai massage. She said it involved both the client and the masseuse being naked and the client lying on his stomach, "his legs spread out at a 'V'" and the masseuse kneeling between his outspread legs, applying her hands and forearms to the back of his body. The massage she said was only to the back of the client's body.

19. The cost of the massage varied from $40.00 for a full body massage, $50 if the masseuse was topless and $60.00 is she was naked.

20. The defence also called David Povey and Peter White. They both also gave evidence of approaches made to them by police officers as they were leaving the premises of Body Link.

21. Mr White was a handyman at the premises; Mr Povey was a client. The latter also gave evidence that he had about 20 massages or so. He said that during the massage he was naked as was the masseuse, Karen. She made no contact with his genitalia, nor did he make any contact with her genitalia.

22. His evidence was that when he was massaged, he lay for part of that time on his front and for the other part on his back.

23. He said in cross-examination that on occasions he had received the Thai massage. On these occasions the masseuse carried out the procedure naked, as was he, while he was lying face down and she was kneeling between his legs. His evidence in relation to this massage was similar to the appellant's.

24. The evidence that both men gave in relation to their encounter with the police was objected to by the prosecutor, but again it was taken de bene esse and a ruling deferred until the completion of the defence case.

25. The Magistrate found the charges proved and in doing so made a number of findings which included these findings:-
    1. That Karen Begley did not know about the activities of
    Karen Carmichael with respect to Arnold.
    2. That the evidence of Ninnes was not reliable beyond
    reasonable doubt in relation to the so-called "hand relief"
    he received.
    3. That nude Thai massages as practised by Body Link and as
    described by the appellant, did, according to the law,
    amount to acts of prostitution.
    4. That the Body Link premises was a "brothel" as defined in
    Section 27 of the Summary Offences Act on the 25th November
    1993.
    5. That the appellant was the keeper of the brothel
    conducted at those premises on the 25th November 1993.
    6. That the appellant knew that the premises were being used
    by the female masseuses who frequented those premises for
    the purpose of performing, amongst other things, so-called
    nude Thai massages, which amounted to acts of prostitution.

26. As a result the appellant was convicted of both charges. As can be seen, the learned Magistrate found the charges proved because he determined that the nude Thai massage was itself an act of prostitution and that, because it was her evidence the appellant was aware that such acts were performed on the premises and that she, again on her own evidence, managed the premises (as well as carried out the same massage procedure herself). Therefore, he found the elements of both charges were made out.

27. I turn now to the grounds of appeal. On the day the appeal came before me leave was sought and granted to Mr Peek to amend the grounds of appeal by adding ground 7A.

28. I will set out the grounds of appeal in full. They are:-
    1. The learned Magistrate erred in finding that the
    premises, known as "Body Link" at College Park were, on
    the 25th day of November, 1993, premises:-

(a) to which persons resorted for the purposes of
    prostitution, and

(b) were occupied and used for that purpose, and

(c) were "a brothel" as defined in Section 27 of the
    Summary Offences Act (p.47).

2. The learned Magistrate erred in that His Honour:-
    (a) failed adequately to direct himself as to the
    application of the correct test of prostitution to the facts
    found to be proven beyond reasonable doubt herein.

(b) failed to differentiate between the concepts of
    sensuousness or sensual pleasure, on the one hand, and
    sexual gratification on the other.

(c) failed to differentiate between the Thai massage as
    practised at "Body Link" premises and the practice of
    "rubbing her naked body against the customer's naked body in
    a sensual manner, with full body to body contact" (his
    Honour's reasons at p.42) as is alleged to have occurred in
    quite different premises involving different persons.

(d) failed adequately to direct himself as to, or failed
    to give due weight to, the evidence of the accused and
    defence witnesses of:-

(i) the nature of the Thai message as practised at "Body
    Link" and

(ii) the procedures adopted by staff and management for
    discouraging or terminating services to clients who showed
    an interest in sexual gratification (His Honour's reasons at
    p.44 and p.45).

(e) The learned Magistrate erred in that His Honour
    failed to direct himself as to the appellant's knowledge, or
    lack thereof, of acts alleged to have been performed (other
    than acts of actual masturbation) by masseuses other than
    the appellant herself during the relevant period.

(f) failed adequately to direct himself as to, or to
    give due weight to, evidence and submissions relating to the
    prevalence of public nudity, the prevalence of nude or
    part-nude services, including massage, and changed community
    attitudes concerning these matters when assessing what
    constitutes prostitution.

(g) incorrectly found that the nude Thai massage, as
    practised at "Body Link" amounted to an act of prostitution
    or was an act of indiscriminate lewdness or was for sexual
    purposes designed to arouse erotic impulses and feelings for
    the customers' sexual gratification (p.47 and p.45.)

3. The learned Magistrate failed to interpret sections of a
    penal statute (i.e. Sections 21 and 28 of the Summary
    Offences Act) in such a way so as narrowly to construe the
    class of acts which might amount to a criminal offence.

4. The learned Magistrate erred in that His Honour:-
    (a) misdirected and/or failed properly to direct himself
    as to the correct approach to the exercise of His Honour's
    discretion to exclude the evidence of Mr Ninnes and/or Mr
    Arnold.

(b) declined to exclude the evidence of Mr Ninnes and/or
    Mr Arnold.

5. The learned Magistrate erred in directing himself (at
    p.38 of His Honour's reasons) that Detective Baldwin's
    alleged observations of three towels in a basket similar to
    a laundry basket in the front massage room and dirty towels
    in the store room were capable of corroborating and/or did
    tend to corroborate the evidence of the prosecution witness
    Mr Arnold.

6. The learned Magistrate erred in that His Honour failed
    adequately to warn himself against proceeding on the basis
    of the evidence of the witness Mr Ninnes and/or Mr Arnold in
    all of the circumstances of the case.

7. The learned Magistrate erred in ruling (at p.12 of His
    Honour's reasons) that part of the evidence of the defence
    witnesses Messrs Povey and White was inadmissible.

7A. The learned Magistrate erred in declining to conduct
    a VOIR DIRE hearing as to the admissibility of the evidence
    of the witnesses Messrs Ninnes and Arnold.

8. The learned Magistrate erred in that His Honour:-
    (a) declined to order the prosecutor to supply a list of
    the particulars of the person spoken to by police at the
    premises of "Body Link" between 24th October 1993 and 25th
    November 1993.

(b) Set aside the subpoena issued at the instance of the
    appellant seeking the documents recording the said
    particulars. (His Honour's reasons delivered 29th July
    1994.)

9. The proceedings have miscarried and the appellant has not
    had a fair trial according to law by reason of the refusal
    of the prosecutor to supply to the appellant the information
    referred to in Ground 8 hereof.
    10. The learned Magistrate erred in that His Honour
    misapprehended, and failed adequately to direct himself as
    to:-

(a) the true nature, and strength, of the defence case.

(b) the evidence adduced and tendered by the appellant.

11. The learned Magistrate's finding that the charges
    were proven is against the weight of the evidence and/or is
    unsafe and unsatisfactory.

29. Whilst the grounds of appeal are extensive, in fact the matters that were complained of can be more precisely identified -
    1. The trial miscarried in that the learned Magistrate
    failed to conduct a voir dire into the admissibility of the
    evidence of Ninnes and Arnold.
    2. The learned Magistrate ought to have excluded the
    evidence of both of those persons and the evidence of
    Sergeant Slape.
    3. If he had excluded that evidence, which he ought to have
    done, the appellant could have successfully submitted there
    was no case to answer.
    4. In these circumstances there would not have been evidence
    of the nude Thai massage, which evidence came from the
    appellant and the witness, Mr Povey, called on her behalf.
    5. In any event, it was an error to categorize a nude Thai
    massage as an act of prostitution.

30. It seems to me that the logical way to approach this matter is to determine firstly whether there should have been a voir dire hearing and the extent of it. Secondly, to determine what evidence ought to have been admitted. Thirdly, to assume a hypothetical "no case to answer submission" on that evidence and if a conclusion is reached, that such a submission would fail, to lastly consider whether the nude Thai massage is an act of prostitution.

31. Grounds 4, 6 and 7A of the grounds of appeal relate to the failure of the learned Magistrate to conduct an inquiry into the admissibility of the evidence of the two prosecution witnesses, Arnold and Ninnes.

32. Ninnes gave evidence that he attended at the premises on 14th November 1993. It was the second time he had been there. Some seven months earlier he had attended for a massage and undergone a "sports massage" which he described as "just a body massage, back and front." On 14th November, when he attended at the premises he was told by the appellant to take a seat in the waiting room. Later he went into a room. He paid a girl $60.00. He was naked and the masseuse (Becky) was naked. She rubbed oil over his body and masturbated him with her hand and he was then given tissues to clean himself with and he left.

33. He was then interviewed by a Police officer, Detective O'Shea. His evidence in relation to what happened with Detective O'Shea is not relevant to the proof of the charges. However, I shall return to aspects of the evidence later.

34. Arnold's evidence was that he had been to the premises on three occasions. He had on those occasions received similar treatment. He went to the premises on 25th november, after making an appointment earlier that day. He gave a girl, who later massaged him, $60.00. The girl left the room with the money and when leaving asked him to undress. she returned, undressed and rubbed oil over the back of his body and massaged the back of his body for 10 minutes. She rubbed the front of her body on his back.

35. He then lay on his back and she massaged his chest. After a further five minutes she masturbated him and he ejaculated. He left and he also was interviewed by a police officer.

36. In due course the learned Magistrate refused to find that Ninnes' evidence was capable of proving the acts described. He did so because he had reservations about Ninnes' credibility.

37. The learned Magistrate believed Arnold. He concluded that Arnold was massaged and masturbated as he described. He found that the masseuse was Karen Carmichael, also known as Becky.

38. He also found that Arnold had attended at the premises on three former occasions and had been massaged and masturbated in the manner described.

39. He also concluded that the acts of masturbation described by Arnold were acts of prostitution. Ex-parte Fergusson re Olah Pty Ltd (1970) 1 NSWR 713. Moreover, he found that the rubbing of the front of the masseuse's naked body on the back of Arnold's naked body was an act of prostitution. Neilson v S.A. Police. (Matheson J, unreported Judgment No. S4549, delivered on 12th May 1994.)

40. However, he found that there was a reasonable possibility that the acts of masturbation and the massages that Karen Carmichael performed took place without the defendant's authority or knowledge.

41. It is the fact then that neither Ninnes' evidence, nor Arnold's evidence was used by the Magistrate for the purpose of arriving at his decision.

42. I do not agree, however, with Mr Steven's submission that the grounds of appeal relating to the evidence of Arnold and Ninnes are themselves therefore irrelevant. These grounds of appeal stem not from the use to which the evidence was ultimately put, but from the course of action which the defence was forced to take as a result of the failure to rule on the admissibility of the evidence before the close of the prosecution case.

43. At trial, on several occasions, Mr Bleechmore requested a voir dire hearing on the admissibility of the evidence. Each time this request was made, it was denied by the learned Magistrate. The evidence was received de bene esse and submissions and the Magistrate's ruling were deferred until the completion of the defence case.

44. There is reference in the transcript to Mr Bleechmore requesting the delaying of a ruling on the admissibility of the evidence, but I do not understand that to mean that he ever resiled or abandoned the first application that he made, i.e. that a voir dire ought to have been held in relation to this evidence.

45. If he was right to admit that evidence then, even if a voir dire hearing had been had, the evidence would have been admitted before the defence closed its case.

46. In particular, if the evidence of Arnold was properly admitted, a submission of 'no case to answer' was bound to fail. There would have been on Arnold's evidence, sufficient to require an answer on the element of the offence relating to an act of prostitution.

47. There are two questions. The first is whether there ought to have been a voir dire hearing, the second and more important, whether the evidence of either or both of the witnesses was rightly admitted.

48. It was submitted to me that the evidence of Arnold and Ninnes was critical to the prosecution case. It was the only evidence called by the prosecution which detailed the activities which took place at Body Link. Put simply, it was submitted that if there had been a voir dire and if it had been conducted properly, then the evidence would have been excluded, the appellant would not have needed to go into the witness box, and her resulting conviction upon her own evidence would not have occurred.

49. In deciding whether to conduct a hearing on the voir dire a Magistrate must exercise his or her judicial discretion, having regard to the circumstances of the case (Furnell v Betts 20 SASR 300 at p.301). The exercise of that discretion will be governed by the evidence that is sought to be led and the said to be grounds of exclusion.

50. While acknowledging that the granting of a voir dire is a discretionary matter, Mr Peek, who appeared for the appellant, submitted that the Magistrate failed to adequately direct himself as to the proper approach to and the correct exercise of this discretion and as to the strength of the factors tending towards exclusion.

51. In R v Williams (1976) 14 SASR 1 at p.3 Wells J stated:
    "...where evidence, if admitted, would have a powerful, or
    could have a close to decisive, effect upon the outcome of
    the trial, the voir dire procedure has been found to be
    conducive to a smooth hearing, and to avoid the risk of a
    miscarriage of justice caused by the jury's inability to put
    an offending item of evidence out of their minds"

52. It seems to me that the learned Magistrate ought to have ruled on the admissibility of the evidence of Ninnes and Arnold before the close of the prosecution case. It seems that he ruled that the evidence was admissible subject to the general objection. I understand that general objection to be that the evidence ought not to be admitted unless a voir dire was had.

53. It was said that the learned Magistrate could not have so ruled before the close of the prosecution case without conducting a voir dire examination.

54. To determine whether a voir dire examination was appropriate it is necessary to understand what evidence was sought to be led and what the grounds of objection to the evidence were.

55. I have already identified the evidence of Ninnes and Arnold. Their evidence was of visits to the premises and of nude Thai massages and acts of masturbation. The prosecutor wished to call them, in the trial, to establish what had been performed on their bodies.

56. Two grounds of exclusion were argued before the Magistrate. Firstly, that any evidence to be given would be involuntary and therefore inadmissible, and secondly, that the evidence should be excluded on the basis of unfairness to the defendant or on grounds of public policy.

57. For reasons that I will later express, I believe that both grounds are misconceived. However, as the arguments were pursued with vigour, I shall attempt to deal with them as they were advanced.

58. It was submitted that witness statements were likely to have been obtained by overbearing behaviour, threats or rewards held out by police as well as unlawful detainment because no caution was given to the two men. The statements were said to be tainted by impropriety and illegality.

59. Both Ninnes and the interviewing police officer, Detective O'Shea, gave evidence about the circumstances in which Ninnes made his statement to the police. Similar evidence about Arnold's statement to the police was provided by Arnold and Detective Baldwin.

60. At the time that their statements were taken, neither witness was told that they were not obliged to answer questions about their visits to Body Link. Under cross-examination both clearly stated that had they been so advised they would probably have refused to answer questions. However, no attempt was or could have been made to tender their statements. They were witnesses, not persons accused.

61. I agree with the learned Magistrate's finding that the two statements were not and could not have been tendered.

62. Mr Peek submitted that a reading of the evidence given at trial by the police witnesses indicates that at the time statements were taken from Arnold and Ninnes, the police witnesses believed that the appellant was guilty and they therefore set out to gather evidence to support their belief.

63. It was further put to me that Sergeant Slape gave evidence that he "bluffed and exercised power" over civilians and suggested to them what had "really" happened when investigating an alleged offence.

64. In response Mr Stevens submitted that the evidence did not reveal any impropriety in relation to Arnold. At trial Arnold was strenuously cross-examined at length about the subject.

65. It may be that Arnold did feel uncomfortable when questioned by the Police Officer Digby. This is understandable given the circumstances. However I do not believe that improper investigatory techniques were adopted. Arnold categorically denied that he felt under any pressure to make a statement.
    "Q. Did you think you were allowed to walk away at any
    stage, out of the police car and leave.

A. I suppose I could have.

Q. No, at the time, did you think that.

A. Not really. I wasn't put under pressure to make a
    statement."

Arnold also made it clear that no suggestions were made to him as to what had occurred at Body Link.
    "Q. In effect, is it so that Digby said to you, 'Have
    you been getting hand relief in a brothel there?'.

A. No, he didn't say that.

Q. What did he say.

A. He just asked me had I been on the premises of Body Link
    and I said yes, and he asked me would I make a statement of
    what happened down there and I said, 'Yes, okay,' and that
    was it.'"

66. I have nothing before me to lead me to the conclusion that Arnold did feel pressured or that the police acted improperly towards him. Nor can it be concluded that his evidence was in any way untrue.

67. I should also mention the evidence in relation to Ninnes. In cross-examination Ninnes admitted that he had signed a statement which was, in one aspect, false.
    "Q. 'I have been to the premises once before and
    received hand relief from a person', that was false.

A. That's false, yeah.

Q. Why did you sign it.

A. I suppose I was under some sort of pressure, maybe
    mentally. I wasn't prepared for something like that."

68. While cross-examination did reveal this falsehood in the witness' statement, further examination did not uncover any evidence of impropriety by police. Clearly Ninnes felt embarrassed and guilty as a result of the activities which took place at Body Link; he stated that he made a statement to keep the police happy.

69. Whilst the Magistrate was right to find that the falsity of Ninnes' statement as to "hand relief" on an earlier occasion seriously affected the credibility of his evidence at trial as to "hand relief" on the relevant date, that does not establish proof of impropriety or "overbearing behaviour, threats or rewards held out by police".

70. I must say I have some difficulty with the propositions advanced. The two persons were witnesses. They had not been charged with anything. They were not complaining about how statements had been obtained from them. The prosecution was not seeking to prove their statements, nor was the prosecution seeking to prove any of their evidence to be false. The prosecution was simply calling these two persons to give evidence and lead their evidence from statements that had been previously obtained. The evidence they were to give was oral evidence. It could not have been said to have been improperly or illegally obtained.

71. I cannot see that there was any merit at all in the points of objection.

72. In the hearing before me, Mr Peek, in his written submissions, wrote:-
    "In these circumstances it was crucial for the Magistrate to
    consider whether such evidence should be excluded both
    because practices adopted by the police were such as may
    produce unreliable, untruthful or exaggerated statements by
    civilian witnesses placed in a particular position by the
    police and, perhaps even more importantly, pursuant to the
Bunning v Cross (1978) 141 CLR 54 discretion. See as to
    this the recent High Court decisions of Pollard v R (1992)
67 ALJR 193 and Foster v R (1993) 67 ALJR 550."

73. That seems to be the same submission in another form. The cases relied on are, of course, authorities for the exclusion of the confessions of accused persons. They are not authority for the proposition advanced.

74. In my view, neither the grounds advanced before the Magistrate, nor the grounds advanced before me, could ever have led to the exclusion of the evidence.

75. As there were no grounds advanced before the Magistrate that could have led to the exclusion of the evidence, it could not be said that the Magistrate was wrong to reject the application for a voir dire hearing. Indeed, to be entirely fair to the learned Magistrate, in my opinion, he was right to reject the application.

76. A separate ground for exclusion of the evidence was advanced before me. It was put that the learned Magistrate could have, not should have, excluded the evidence upon the basis that both Ninnes and Arnold were accomplices.

77. It is clear from his judgment that the Magistrate approached the evidence of Arnold and Ninnes with caution. He specifically referred to Scott v Killian (1985-1986) 40 SASR 37 and recognized the danger of acting upon the evidence if uncorroborated, ultimately refusing to rely upon the evidence of Ninnes. Whether or not Detective Baldwin's alleged observations as set out in ground 5 were capable of corroborating Arnold's evidence is not a matter of importance since his evidence was not used as a basis for conviction. Mr Peek conceded as much in submissions.

78. A further ground of appeal in relation to the admission of evidence is contained in Ground 3. The appellant complains about the Magistrate's finding that aspects of the evidence of Povey and White was inadmissible. The defence sought to lead evidence of police dealings with Povey and White upon leaving the Body Link premises to help prove alleged improper conduct on the part of police towards Ninnes and Arnold in similar circumstances.

79. The learned Magistrate held that the evidence was irrelevant, that what occurred between White and Povey and the police on other occasions was not logically probative of what was said and done by other detectives to Arnold and Ninnes. In any event I could not see how proof of any of the matters would have gone to the admissibility of the evidence of Ninnes and Arnold. Nothing that was put before me leads me to doubt the correctness of the Magistrate's finding on this point.

80. Whilst I believe it would have been appropriate to rule in all respects on the admissibility of Ninnes' and Arnold's evidence before or at the close of the prosecution case, I otherwise agree with all of the learned Magistrate's rulings on the admissibility of evidence.

81. It seems, in all fairness to the learned Magistrate, that both the prosecutor and counsel for the appellant agreed; at the end of the prosecution case, that their submissions and his Honour's ruling on the evidence taken de bene esse be deferred until the evidence for the defence has been completed.

82. It follows that if he had ruled there would have been evidence before him, namely Arnold's, capable of making out the elements of both offences.

83. In these circumstances a submission of 'no case to answer' would have been bound to fail and the course of the trial would have been no different than in fact occurred. In other words, the appellant would have been obliged to give evidence.

84. The evidence of Ninnes was found not to be reliable beyond reasonable doubt in relation to the "hand relief" and the appellant was found not to have known about the activities of Karen Carmichael with respect to Arnold.

85. The appellant was convicted upon her own evidence.

86. Accordingly, as Mr Peek said in submissions, the case against the appellant stood or fell upon the learned Magistrate's decision that a nude Thai massage was an act of prostitution. I have already described nude Thai massage as deposed to by Ms Begley.

87. The learned Magistrate accepted the appellant's evidence as to the physical acts involved in the services offered by Body Link. However, he was not prepared to accept her evidence as to the inherent nature of those acts. He found the nude Thai massages to be sexual acts and thereby acts of prostitution.

88. It is the learned Magistrate's interpretation of the inherent nature of the nude Thai Massages which forms the basis of grounds 1, 2 and 3 of the grounds of appeal.

89. Mr Peek referred him to early decisions which dealt with the definition of prostitution and prostitute submitting that the central focus of the law has always been on an act of sexual intercourse. He referred to R v Justices of Parts of Holland, Lincolnshire (1882) 46 JP 312 at p.312 and p.313, and Skinner v R (1913) 16 CLR 336.

90. Mr Peek did, however, concede that an act of prostitution could be committed without there being an act of sexual intercourse; R v De Munck
(1918) 1 KB 635 at p.637 and that masturbation or hand relief has in more recent authority been accepted as prostitution.

91. R v De Munck (1918) 1KB 635, the judgment of the court (Darling, Lord Coleridge and Salter JJ) was delivered by Darling J. He said at p.637 that
    "We have to decide what is a prostitute or what is
    prostitution. The argument advanced on behalf of the
    appellant practically was that the offering by a woman of
    her body for the gratification of the sexual passions of
    men, even if it is done as a regular trade, indiscriminately
    and for gain, is not prostitution unless the men's passions
    are gratified by the act of sexual connection and not
    otherwise. We have come to the conclusion that that
    contention is not well founded ..."

92. He went on to say:
    "The Court is of the opinion that the term 'common
    prostitute' in the statute is not limited so as to mean only
    one who permits acts of lewdness with all and sundry, or
    with such as hire her, when such acts are in the nature of
    ordinary sexual connection. We are of opinion that
    prostitution is proved if it be shown that a woman offers
    her body commonly for lewdness for payment in return."

93. R v De Munck was followed by the Court of Criminal Appeal in R v Webb
(1964) 1QB 357.

94. Mr Peek submitted that the original focus of the definition of prostitution, i.e. sexual intercourse, must always be borne in mind when deciding if some act other than an act of sexual intercourse constitutes prostitution.

95. In Ex-Parte Fergusson: Re Olah Pty Ltd (supra) O'Brien J said:
    "In the next place I should, in relation to this question of
    indecency or prostitution, mention that doubt seemed to lie
    at the back of submissions of counsel for both sides that
    activities which were described as 'relief massage' and
    'French love', but which ought less euphoniously to be
    described as masturbation of the male by the female, did not
    fall within the meaning of prostitution. Indecent conduct
    it may well be, but prostitution it certainly is, if done by
    a female indiscriminately for males for monetary reward."

96. These authorities all confirm that an act of prostitution may still be committed without an act of intercourse occurring.

97. What is necessary to be proved is not necessarily an act of intercourse, but that the person charged has offered his/her body commonly for lewdness.

98. Any act of prostitution must contain an element of sexual gratification for reward. The behaviour must be lewd; (see R v De Munck at p.637 and Saumels v Bosch (1972) 127 CLR 517 at p.524) as opposed to merely indecent.

99. An act of prostitution will occur when a person indiscriminately or commonly offers his or her body for the sexual gratification of another person for reward. Gibbs J said in Samuels v Bosch (1972) 127 CLR 517 at p.524:
    "The ordinary meaning of 'prostitution' is 'the offering of
    the body to indiscriminate lewdness for hire'."

100. I was referred to the definition of 'lewd' in the Macquarie Dictionary which states:
    "1. inclined to, characterised by, or inciting to lust
    or lechery."

101. The essence of Mr Peek's submissions was that in 1994 the nude Thai massage is not an act which can be characterised as lewd and as a result the Magistrate did not adopt the correct approach in finding that, on the facts, prostitution was proved beyond reasonable doubt.

102. Mr Stevens argued that the nude Thai massage did indeed involve a woman offering her body commonly for lewdness for payment. In doing so he placed reliance on the recent decision in this court of Matheson J in Neilson v S.A. Police (unreported judgment S4549 delivered 13th May 1994).

103. That case involved a "Thai massage" which consisted of a massage conducted by a masseuse, with her whole body coming into contact with a male customer while both were naked. A fee was charged.

104. In Neilson v S.A. Police the learned Magistrate found: "That the defendant received the sum of $60.00 from Broadbent for the so-called 'Thai massage' which, but for the intervention of the police, would have involved the defendant rubbing her naked body against Broadbent's naked body in a sensual manner, with full body to body contact."

105. It was argued before his Honour that that contact was not sufficient to find an act of prostitution. His Honour rejected that argument, finding that the conduct described above was an act of prostitution.

106. Mr Stevens argued that the case at bar could not be distinguished from Neilson v S.A. Police despite the fact that Ms Begley described a massage where only the naked masseuse's hands deliberately came into contact with her naked male customer.

107. In my opinion the Nude Thai massage provided at Body Link was not merely a sensual act but an act, which when judged objectively, was designed to provide sexual gratification. With respect, I agree with the decision of Matheson J in Neilson v S.A. Police.

108. I think there must be some contact between the person offering the use of the body and the person paying the fee. That must be so, because otherwise a striptease dancer might be said to be committing an act of prostitution. Although the comment of Widgery J at p.360, during argument in R v Webb might suggest otherwise, I do not think that an exotic dancer, without performing more than a dance, would be understood to be performing an act of prostitution. I therefore think that an act of prostitution requires that the offer of the body means an offer to use the body, rather than simply view the body.

109. Notwithstanding the comment of Widgery J, I think that is consistent with R v Webb (supra) and in particular the statement of Lord Parker at p.498:
    "From a purely practical point of view, it would be
    artificial, to say the least, to draw a distinction between
    the case of a woman who takes a passive role and one in
    which she takes an active role. Indeed, it can be said with
    some force that some activity on her part is of the very
    essence of prostitution. It cannot matter whether she whips
    the man or the man whips her; it cannot matter whether he
    masturbates himself on her or she masturbates him. In our
    judgment, the expression used by Darling J, 'a woman offers
    her body commonly for lewdness', means no more and was
    intended to mean no more than 'offers herself', and it
    includes, at any rate, such a case as this where a woman
    offers herself as a participant in physical acts of
    indecency for the sexual gratification of men."

110. That statement was recently cited with approval in R v McFarlane (1994) 2 WLR 494.

111. Given that understanding of what amounts to prostitution, it is my opinion that the service that the appellant, on her own account offered, and which was offered by others, to her knowledge, on the premises, did amount to acts of prostitution.

112. The fee for the Thai massage was $60 as compared to $40 for a "normal" massage. While I accept that the duration of the former massage was longer than the latter it is an inescapable conclusion that the additional fee was also paid for the masseuse to be naked.

113. The naked masseuse knelt for part of the massage between the legs of her naked client. Given the physical proximity of the two people during the conduct of the massage, the sexual gratification of the client must have been intended. I do not accept Mr Peek's submission that the masseuse was naked in order to make his client feel more comfortable with his own nudity. Nor do I accept the suggestion that the masseuse was naked so as to prevent oil from getting on her clothes. The appellant herself admitted that the provision of massages in the nude was partially a business decision. In her words "tits sell". The masseuse was naked, in my opinion, for the purpose of lewdness and for the sexual gratification of the client.

114. The appellant acknowledged that some customers did become sexually excited and experienced erections during the massages. The massages were promoted as "The sensual remedy to the strain of a busy business world" and the staff of Body Link were instructed to advise clients that the services offered included "a range of head-to-toe massages" and a "more creative body sliding massage".

115. I do not accept that the appellant discouraged interest in sexual gratification. Indeed, on the contrary, it would be naive to think that this act was done for any purpose other than the sexual gratification of the client. In my opinion each of the elements of the definition of prostitution as commonly understood was made out. There was an offer of the body and the body was used: it was offered in circumstances of lewdness; the offer was indiscriminate; it was offered for reward. I therefore agree with the learned Magistrate when he concluded that the nude Thai massages by themselves amounted to acts of prostitution within the meaning of Sections 27 and 28 of the Summary Offences Act. Grounds 1, 2, 3 and 11 of the appeal must therefore fail.

116. There are other grounds of appeal, which, for completeness, I ought to deal with. Grounds 8 and 9 of the appeal relate to an application at trial by Mr Bleechmore for an order that the prosecutor supply a list of particulars of the persons spoken to by police at "Body Link" between 24th October 1993 and 25th November 1993.

117. During the trial the learned Magistrate ruled on the application, refusing it.

118. In cross-examination Mr Bleechmore (who appeared at trial for the appellant) elicited from F.C.C. Baldwin that a computer list existed of males, other than Arnold and Ninnes, who were spoken to by police as they left Body Link. The prosecution declined to produce the list.

119. On the application of the appellant, the Registrar issued a summons, pursuant to Section 20 of the Magistrates Court Act to the Commissioner of Police, returnable for the 7th June 1994. The summons required the production of the list or any other documents or computer disks containing names of people cautioned, questioned or interviewed by police inside or in the vicinity of Body Link at the relevant times including the police officers involved.

120. The summons was objected to on the grounds that firstly it was too wide and that it described the material sought too broadly and, secondly, that the "list" was not relevant to any issue at trial. At trial, Mr Bleechmore conceded the first ground of objection and conceded that the description should be read down for the purpose of the application to have the summons struck out or set aside. However, Mr Bleechmore argued that the list would enable him to identify police officers who spoke to 5 or 6 prospective defence witnesses. If called, those witnesses' evidence would support the defence application to exclude the evidence of Arnold and Ninnes on the grounds of unfairness or public policy. Secondly, it was put that the list would enable the defence to locate other potential witnesses who could testify as to the nature of the business conducted at Body Link. Both grounds of relevance were dismissed by the Magistrate.

121. On appeal, Mr Peek submitted the prosecutor should have supplied statements or in their absence names and addresses of potential witnesses. He cited Carter v Hayes (1994) 61 SASR 451 in support of his submission. In that case in a judgment delivered by King CJ, (Bollen and Mullighan JJ concurring) the Full Court said the material must have evidentiary value. A document may have evidentiary value, even though it, itself, is not admissible, if it provides either material for cross-examination or information which, if in another form, might be admissible.

122. The document, in my opinion, satisfied none of the above. It would not have been itself relevant. It would not have given information that could have been used for cross-examination. Nor if it had been in another form, was it admissible.

123. The police investigating techniques about which much was made and which occupied much of the trial, was, as I have determined, as did the Magistrate, irrelevant.

124. It was also submitted that the information, if produced, could uncover other witnesses who could attest to the activities which took place at Body Link in support of the defence case. By not allowing access to this information a possible line of investigation was closed to the defence.

125. The learned Magistrate relied on R v White (1976) 13 SASR 277 at 282:
    "Its only function would be to serve as a source of leads
    for the appellant's solicitors by means of which they hoped
    to find some witness or witnesses who might be able to give
    relevant evidence. This is not a legitimate issue of the
    subpoena duces tecum and we consider that the trial Judge
    was correct, on this ground alone, in refusing to compel
production of the book." and Hunt v Wark and Others (1985) 40 SASR 489 at p.493, where King CJ said:
    "The subpoena process may not be used ... as a means of
    obtaining information in the hope that it may lead to the
    ascertainment of witnesses or evidentiary documents."

126. It seems to me that the subpoena process was being used contrary to the injunction in those cases. I think the Magistrate was right to set aside the summons.

127. As a result, in my opinion, all grounds of appeal fail and the appeal must be dismissed.

128. I will hear the parties as to costs.