O v Bradley - [2009] WASC 137

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: O -v- BRADLEY [2009] WASC 137

CORAM: BLAXELL J

HEARD: 9 FEBRUARY 2009

DELIVERED : 20 MAY 2009

FILE NO/S: SJA 1089 of 2008

BETWEEN: JASPER O
Appellant
AND
TROY BRADLEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J R PACKINGTON
File No  :PMC-PE 29830 of 2008

Catchwords:

Criminal law - Appeal from conviction for offence of being in a public place and seeking a person to act as a prostitute - Whether there is a mental element to the offence

Legislation:

Prostitution Act 2000 (WA), s 5

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M R Gunning
Respondent: Ms M Ashford

Solicitors:

Appellant: Gunning Barristers & Solicitors
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Chew v The Queen [1991‑1992] 173 CLR 626
Kaminski v The Queen [1975] WAR 143
R v Hutchinson [2003] WASCA 323
Widgee Shire Council v Bonney (1907) 4 CLR 977

BLAXELL J: This is an appeal from the appellant's conviction in the Magistrates Court at Perth, for an offence of being in a public place and seeking a person to act as a prostitute contrary to s 5(1) of the Prostitution Act 2000 (WA).
The appellant pleaded not guilty to the charge, but at the hearing before the Magistrate, admitted the facts alleged by the prosecution. In this regard, he readily accepted that at the material time he was in a public place, and that he uttered words to a female passerby, which on their plain meaning amounted to a request for her to act as a prostitute. However, it was his evidence that he was not in fact seeking for her to act as a prostitute, but said the words because he 'wanted to do something which would be of shock value'.
The appellant's counsel submitted that a necessary element of the offence was an intent to have the woman to act as a prostitute, and that this element had not been proved. In convicting the appellant, the Magistrate held that the accused's intention 'with regard to what might transpire subsequent to the utterance of his invitation' was immaterial. The prosecution was not required to prove any mental element, and by uttering the words that he did, the appellant had committed the offence. The appellant appeals from this decision on the following grounds:
GROUND ONE
1.His Honour erred in finding the offence under s5(1) of the Prostitution Act 2000 did not require the applicant to have the mental element of seeking another person to act as a prostitute, and in so finding led to a miscarriage of justice.
GROUND TWO
2.His Honour erred in holding that the words 'If I give you money will you suck my cock' once uttered amounted to an invite within the meaning of section 5(1) of the Prostitution Act 2000 and proceeded to conviction without satisfying himself beyond reasonable doubt that the words uttered in the factual circumstance was consistent with the explanation that they were said to shock and therefore did not amount to seeking a prostitute.

The relevant legislation

The Prostitution Act 2000 (the Act) regulates and prohibits certain activities associated with prostitution. In that regard, the Act does not make prostitution itself unlawful, but it prohibits the seeking of an act of prostitution while in a public place (s 5 and s 6), the inducing of any person to act as a prostitute (s 7), and the promotion or sponsorship of prostitution (s 9 and s 10). It also prohibits the engaging in an act of prostitution without use of a prophylactic (s 8), and provides for certain offences when children become involved in prostitution (s 16 ‑ s 21 inclusive). In addition, there are various provisions providing the police with increased powers of enforcement.
Section 4 of the Act provides:
When this Act refers to prostitution it means prostitution in which payment is consideration for the sexual stimulation of a person (the client) by means of physical contact between the client and another person (the prostitute), or between either of them and anything controlled by or emanating from the other, and it is irrelevant whether payment is in money or any other form.
Section 1(3) includes the following further definitions:
act as a prostitute means to take part, as a prostitute, in an act of prostitution;
act of prostitution means anything the doing of which amounts to prostitution;
The substantive offence of which the appellant was convicted is to be found in s 5, which provides as follows:
5.Seeking prostitute in or in view or within hearing of public place
(1)A person who, in or in the view or within hearing of a public place, seeks another person to act as a prostitute commits an offence under this subsection.
…
(4)For the purposes of subsection (1), a person (in this section called the offender) seeks another person to act as a prostitute if the offender -
(a)invites or requests another person to act as a prostitute; or
(b)loiters in or frequents a place for the purpose of, or with the intention of -
(i)inviting or requesting another person to act as a prostitute; or
(ii)receiving an invitation for another person to act as a prostitute.
At the time of enactment of the legislation the Minister (in the Second Reading Speech) explained the underlying purpose of these provisions as follows:
It is intended that the Bill will ensure the regulation of the activities of prostitutes and potential clients in public places … Therefore, the Bill … introduces offences to make street soliciting and kerb crawling illegal, regardless of who initiated the action, a prostitute or a client.
…
The Prostitution Bill includes provisions that not only make this conduct unlawful, but through the imposition of strict penalties, including forfeiture, are directed at empowering police more effectively to curtail this activity. In general terms, it will be an offence to be involved in street soliciting, irrespective of whether the person is a prostitute, a client or an agent; that is, a person who seeks to procure another for prostitution. Similarly, any person who in a public place seeks another to act as a prostitute or to be the client of a prostitute will commit an offence. It is intended that the effect of this provision will be to bring about a reduction in the demand for street prostitutes by targeting in the first instance those persons seeking the services of prostitutes - that is, kerb crawling - for which a penalty of a maximum of two years' imprisonment will apply. In reducing the demand for services it is reasonable to assume that supply will also diminish.

The proceedings before the Magistrate

The evidence of the complainant came in the form of a statement which was tendered by consent. It was her evidence that during the late afternoon of 16 April 2008 she was with her sister walking a dog along Centre Street, Queens Park, towards Lansing Street. The footpath that she was walking along abutted a park. A car then pulled over to the kerb beside the complainant and her sister. The passenger side window of the car was down and there was only one male person inside. It was not in issue that that person was the appellant.
The complainant assumed that the driver of the car wanted some directions, so she stopped walking and bent down to look inside. When she did this, the appellant said words to the effect: 'If I give you money will you suck my cock?' The complainant was shocked to hear this and she immediately stood up and backed away from the car.
The car then drove off down Lansing Street which was a cul de sac, so the appellant had to turn around and come back. As a result, the complainant was able to obtain the vehicle registration number which she then reported to the police (who subsequently charged the appellant).
It was the appellant's evidence that prior to the incident in Centre Street, he had been driving from his workplace in Redcliffe towards his girlfriend's house in Bentley. In order to reach his girlfriend's house, he had to cross the railway line, but the railway crossing was blocked by police. He then attempted to cross at other locations, but everywhere he went the traffic was very heavy and each time he had to turn back and retrace his movements.
It was in the course of these attempts to cross the railway line that the appellant saw the complainant and her sister walking down Centre Street. The appellant then pulled up alongside them with his window wound down, and when the complainant bent down to see what he wanted, he uttered the words complained of.
According to the accused, he was under no misapprehension that the two women were prostitutes. They were not dressed like prostitutes but had trainers and tracksuit pants on. He had no intention of persuading the complainant to perform an act of prostitution and had no money to pay for such an act. It was his evidence that he said the words because he was 'frustrated about the traffic problems', and 'wanted to cause or bring about something of a shock value'.
It should be noted that there was no evidence before the Magistrate to show that the park or the particular area where the complainant was walking were places that were notorious for 'kerb crawling' or for activities associated with prostitution.
It was submitted on behalf of the appellant that the prosecution had failed to prove a necessary element of the offence. That element was said to be the state of mind of the accused, and a required intent at the time of uttering the words that 'subsequent to the seeking there would be an engaging in an act of prostitution between him and the complainant'.
In rejecting this submission, the Magistrate noted that the words were uttered by the appellant intentionally, and on their plain meaning were an invitation or request to the complainant for her to act as prostitute. In these circumstances the offence constituted by s 5 of the Act did not expressly require any mental element (as distinct from circumstances where the alleged offence was constituted by a loitering with intent). Furthermore, the Magistrate did not consider that there was any implied mental element of the offence, and his Honour in any event noted s 23 of the Criminal Code (WA) which provides that:
Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted in whole or part by an act or omission, the result intended to be caused by an act or omission is immaterial.
Accordingly, his Honour held that the appellant's intention with regard to what might have transpired after the utterance of his invitation was immaterial. Simply by uttering the words that he did, the appellant had committed the offence.

The merits of the appeal

The appellant's submissions on appeal are not the same as those that were made to the Magistrate. The appellant no longer contends that the prosecution had to prove that he intended to follow through on the invitation or request. In that regard:
30.It is accepted that a person's intention when uttering the words to follow through with the act of prostitution is not necessary and indeed it is not fatal as it may be that the intention is to solicit or request a prostitute but not go through with the physical act later on.
Instead, the appellant submits that the necessary mental element of the offence was that 'the invite was intended as an invitation'. Accordingly, in the particular circumstances of the present case, it is said that the offence did not occur because the appellant's intention at the time of uttering the words was to cause shock and not to invite an act of prostitution. It is also said that the absence of the required intent was objectively confirmed by the surrounding circumstances which made it hard to conclude that the appellant was seeking a prostitute notwithstanding the words that he used.
The question whether the offence includes an element of intent, turns upon the proper construction of s 5 of the Act. In that regard, the fundamental starting point is that under the criminal law of Western Australia it is never necessary to have recourse to the common law doctrine of mens rea (Widgee Shire Council v Bonney (1907) 4 CLR 977, 981). The reason for this is that pursuant to s 2 and s 4 of the Criminal Code Act Compilation Act 1913 (WA):
No person shall be liable to be tried or punished in Western Australia as for an offence, except under the express provisions of the Code, or some other statute law of Western Australia.
Accordingly, in R v Hutchinson [2003] WASCA 323, McKechnie J (with whom Malcolm CJ agreed) held:
Unless knowledge or intention are elements of the offence created by statute, either expressly or by necessary implication, then the prosecution does not have to prove knowledge or intention.
There are many instances where the Criminal Code or some other statute creates an offence which expressly includes knowledge or intent as a constituent element. A very pertinent example is the offence of seeking a person to act as a prostitute in circumstances as alleged in s 5(4)(b) of the Prostitution Act. When it is alleged that a person was loitering in or frequenting a public place for the purpose of seeking another to act as a prostitute, it must be proved that he had the intention of making such an invitation or request. (As a matter of logic the reason why it should be necessary to prove such an intent in those circumstances is quite obvious).
There are very few instances where in the absence of any express provision, the courts have nevertheless considered that a particular knowledge or intent was a constituent element of an offence. Once instance was in Kaminski v The Queen [1975] WAR 143 where Burt J (at 146) held:
In my opinion, although it is not for the purposes of this case necessary to so hold, in the crime of robbery an intention to cause a specific result in the sense of s 28 is also involved in the use of and in the threat to use violence 'in order to' obtain the thing stolen or to prevent or overcome resistance to its being stolen.
Another example can be found in the decision of the High Court in Chew v The Queen [1991‑1992] 173 CLR 626 concerning s 229(4) of the Companies (Western Australia) Code (which made it an offence for an officer or employee of a corporation to 'make improper use of his position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or for any other person or to cause detriment to the corporation'.)
A majority of the court held that the offence had a mental element in that it was necessary to prove that at the material time the officer or employee had the purpose of gaining an advantage or causing the relevant detriment. In effect, the court gave the word 'to' a purposive rather than a causative construction. In adopting this construction, the majority held (at 632 ‑ 633):
The historical and contextual relationship of s 229(4) with s 229(3) leads us to the conclusion that 'to' in s 229(4) should be read as 'in order to'. Had we not come to that conclusion, we would have considered that the provision was ambiguous in that respect. In that event, all other indicia having failed, the provision, being penal in character,, should be interpreted in favour of the strict, that is the purposive, meaning in preference to the causative meaning (R v Adams (1935) 53 CLR 563 at pp 567‑568; Beckwith v The Queen [1976] 135 CLR 569 at p 576; Waugh v Kippen (1986) 160 CLR 156 at p 164).
In concluding that the purposive interpretation is to be preferred, we have not found it necessary to deal with s 23 of the Criminal Code (WA). The answer to the critical question turns simply on the construction of the provisions of s 229(4). Once, as a matter of interpretation, the conclusion is reached that 'to' means 'in order to', s 229(4) expressly declares purpose to be an element of the offence and purpose, in the context of that sub‑section, is the equivalent of a specific intention (cf Chandler v Director of Public Prosecution [1964] AC 763 at pp 794 796). In terms of the second paragraph of s 23, 'the intention to cause a particular result is expressly declared [by s 229(4)] to be an element of the offence constituted … by an act or omission'.
Counsel have also drawn my attention to the unpublished judgment of Templeman J (on 19 March 2007) in the matter or Kirkman v Valand (SJA 1114 of 2006). This was an appeal from the dismissal of a complaint against the respondent for an offence under s 5 of the Prostitution Act. The facts were that the respondent approached an undercover police officer who was posing as a prostitute. It was his evidence that he was not seeking an act of prostitution but was merely curious to know whether or not she was a prostitute. The conversation that he had with her was recorded and it essentially comprised his negotiation of an act of prostitution in return for payment of $100. However, the conversation came to an end when the respondent said that he was not going to 'solicit street prostitutes' and that he would 'give it a miss'.
The Magistrate had dismissed the charge on the basis that there was a mental element to the offence and that her Honour was not satisfied beyond reasonable doubt that the respondent 'was intending to follow through with his very silly curious approach to this woman'. In refusing the appeal, Templeman J held as follows:
It is common ground, and I accept, that with all respect to the Magistrate she did err in holding that it was necessary, in order to prove intent, that the person seeking the prostitute intended to follow through; that is, as I understand it, to accept in due course the services that were on offer from the prostitute. That is not so. The point is encapsulated very neatly in the appellant's outline of submissions:
The question of whether a person commits an offence depends on the doing of the elements described in section 5(1); not a person's further intent.
In my view, the essential question is whether the respondent did, on the evidence, seek another person to act as a prostitute. Senior counsel for the appellant submits that, viewed objectively, the acts of the respondent and the words he spoke clearly constituted a seeking. Counsel submits that the respondent's intention is irrelevant. He relies on the second limb of section 23 of the Criminal Code. …
I accept that on one view, the words used by the respondent and his actions are capable of constituting 'seeking' for the purposes of this act. But, in my view, the respondent's conduct, viewed objectively, and without any pre‑conceived notions about his intention, is equally consistent with an innocent interpretation, as he explained. He said he was not in fact seeking. Not only did the respondent have no intention to seek the police officer to act as a prostitute; I do not think he did so. He was merely curious to find out whether that is what she was about. (Emphasis added)
I agree with his Honour's view that the offence under s 5(1) and (4)(a) does not include an element that 'the person seeking the prostitute intended to follow through'. However, to the extent that the decision in Kirkman suggests that some other intent might be an element of the offence, I would respectfully disagree. Before outlining my reasons for that conclusion, I note in passing that the facts in that case are readily distinguishable from those in the present matter. In that regard, although there were negotiations for an act of prostitution, the total conversation that the respondent had with the undercover police officer made it clear that he was not in the end making an invitation or request.
In any event it is my opinion that on a proper construction of the Act, there is no mental element to the offence constituted by s 5(1) when committed in the circumstances as set out in s 5(4)(a). It is also my opinion that but for s 5(4)(a) there would be a mental element to the offence, because the natural and ordinary meaning of the word 'seeks' necessarily implies a state of mind involving an attempt to find or achieve something.

However, s 5(4)(a) overrides the natural and ordinary meaning of 'seeks' by stipulating that a person seeks another person to act as a prostitute if he 'invites or requests' that other person to do so. Unlike a 'seeking', which involves a combination of a person's actions with a particular intent, an 'inviting' or 'requesting' occurs regardless of the particular state of mind of the person who issues the same. In that regard, the relevant definitions in the Shorter Oxford English Dictionary are as follows:
Invite: Ask (a person) to do something assumed to be agreeable or advantageous. b Politely request (something) from a person. 3 Entice or encourage (a person) to do something or to go somewhere.
Request: The action or an instance of asking or calling for something; the fact of being asked for something; … Ask to be favoured with or given (a thing), ask for; express a wish or desire that, to do; ask to be allowed to do; ask (a person) to do something.
I also consider that my view as to the proper construction of s 5 is supported by the underlying purposes of the Act. In this regard, it is very significant that prostitution in itself is not rendered unlawful. The Act only prohibits or regulates those aspects of prostitution which are likely to have a detrimental impact on children in particular, and on members of the public in general. Accordingly, activities associated with prostitution (not involving children) which take place on private properties behind closed doors are subject to only limited regulation concerning promotion, sponsorship, and use of prophylactics. In respect of street prostitution, the Act is not concerned with the act of prostitution in itself but with the negative impacts of 'kerb crawling' and other nuisances brought about by prostitutes plying their trade in public.
In the present instance, the appellant uttered words to the complainant which would necessarily be understood by her as an invitation or request for her to act as a prostitute. This is the type of nuisance that the Act aims to prevent, and from an objective point of view, it made no difference to her whether those words were intended seriously or for the purpose of shocking her. Even if it is accepted that the appellant intended to shock the complainant, the simple fact is that he did so by issuing an invitation or request for her to act as a prostitute. It necessarily follows that by uttering the words in a public place, the appellant committed the offence of which he was rightly convicted.
It also follows that the appeal should be dismissed.