R v De Smet

[2003] QDC 44

DISTRICT COURT OF QUEENSLAND

CITATION:	R v De Smet and Ors [2003] QDC 044
PARTIES:	R v DE SMET, Jan Rene HEWITT, Steven John & INNIS, Renee Jody
FILE NO/S:	DC No 3281 of 2002
DIVISION:	District Court
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	22-23 April 2003
JUDGE:	Forde DCJ
ORDER:	Accused discharged.
CATCHWORDS:	Knowingly – publicly exhibits – indecent act or performance – ss 227,228 Criminal Code of Queensland.
Cases relied on:
Knowledge:
Cassidy v Hawe ;ex parte Hawe (1907) St.R.Qd. 21
R v Love (1955) 39 Cr App R 30
Indecent act/performance:
R v Bryant (1984) 2 Qd R 545
Crowe v Graham (1967-1968) 121 CLR 375
R v Dunn (1973) 2 NZLR 481
R v Harkin (1989) 38 A Crim R 296
Keft v Fraser, App. No. 428 of 1985, Supreme Court of Western Australia (FC) unreported 21 April 1986.
Phillips v Police (1994) 75 A Crim R 480
COUNSEL:	J. Godbolt for the Crown. D. Walsh for accused.
SOLICITORS:	Director of Prosecutions. A.W. Bale & Sons.

SUMMING-UP

1.    Members of the jury, the accused are charged with the following offences set out in the indictment, a copy of which is before you, Mr De Smet of two counts of exhibiting an indecent performance; Mr Hewitt, two counts of exhibiting an indecent performance; and Ms Innis, two counts of indecent acts. To those charges they have pleaded not guilty and this Court has the role of determining whether on the evidence they are guilty or not guilty, and that is your role in this case.

Preliminary Matters

2.    I am now to sum-up the case to you and then you retire to consider those verdicts. Our functions are quite different. I have to ensure that the trial is conducted according to law, and your role is to ensure that you listen to all the evidence in the case, and once I give you the directions as to the law you apply the facts of the case as you find them to the law, and by that process arrive at your verdict. I may comment upon the evidence which could assist you, but whilst you are bound to follow any direction I give as to the law, you are not obliged to accept any opinion you think I may hold as to what the facts are in the case. In other words, you are the sole judges of the facts in the case.

3.   Your verdict must be unanimous, 12 out of 12, one way or the other. You must consider each of these charges separately and the separate evidence to which I shall make reference against each accused separately. There is no provision for a majority verdict in this state. It must be unanimous one way or the other on each charge. You may have different verdicts, you may have the same verdicts in relation to all of the offences. It is open to you to find the accused guilty of some, not guilty of others, guilty of all, not guilty of all. That is a matter for you, but your verdict must be unanimous in relation to each offence, and you must reach that verdict only on the evidence in the case. The evidence is what the witnesses have said from the witness-box, and there are some documentary exhibits, particularly the photographs.

4.    As I mentioned to you yesterday, the view that you undertook is to assist you with the evidence, it is not to supplant the evidence. It is to allow you to understand the evidence.

5.    What you have read or heard about this case outside this courtroom is not evidence. You must exclude that. You have regard only to the testimony and the exhibits before you in this courtroom since the trial has begun. No external influence should play a part in your deliberations.

6.    Now, a few things are not evidence in this case. This summing up is not evidence. I might refer to some of the evidence which you are prepared to act upon, but statements or arguments addressed to you, comments by the lawyers are not evidence in the case. The purpose of the opening by the prosecutor is to outline the evidence, and that is all it is, an outline. It is not the evidence in the case. Suggestions to witnesses that might have been rejected, the question does not become evidence in the case. If a witness agrees with something, then the question and answer are evidence in the case.

7.    Some evidence may directly prove something. There is a photograph which shows a sign in the booth, well, there is some direct evidence. A person may give evidence of what they saw or heard. That is direct evidence. You may accept it and act upon it or you may reject it.

8.    You may have observed that most of the evidence in this case is uncontradicted, but in addition to facts directly proved by the evidence you may also draw inferences, that is, deductions or conclusions, and those deductions or conclusions are from the facts which you find to be established by the evidence.

9.   If you are satisfied that a certain thing happened it might be right to infer that something else occurred. That will be the process of drawing an inference from facts. For example, Mr De Smet in his record of interview admitted that he was aware that the girls removed their G-strings. He said he was not aware of what happened in the private booths.

10. When the police visited there were observations by them as to some acts involving manipulation of the genitalia. Mr De Smet was the manager, the owner of the business. There was a daily manager, Mr Hewitt.

11. What inference can you draw from those particular facts of admissions made by Mr De Smet? You may only draw reasonable inferences, and your inferences must be based upon facts you find proved by the evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.

12. Now, if there is an inference reasonably open which is adverse to the accused, that is, pointing to his or her guilt, and an inference in his or her favour, that is, one consistent with innocence, you may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in your minds.

13. For example, if, having heard all the evidence, there are two inferences open as to whether Mr De Smet had knowledge of what actually occurred in the booth, after considering all the evidence you are left with a reasonable doubt as to his guilt, that is, as to what his knowledge was, then of course it would be your duty to acquit.

14. It is difficult to look inside someone's head to determine what knowledge or intent they have, but you must look at the evidence and ask yourself whether it is proved beyond a reasonable doubt, but particularly in counts 1 to 4, that there was this knowledge by the accused on each of them.

15. A reasonable doubt is such as you, the jury, consider to be reasonable on a consideration of the evidence. It is, therefore, for you and each of you to say whether you have a doubt you consider reasonable.

16. Now, if at the end of your deliberations on any one of these charges you do have a reasonable doubt about the guilt of the particular accused on that charge, then the charge has not been proved beyond a reasonable doubt. It is not sufficient for you to think that, oh, well, they probably knew what was going on. That is not good enough. It has to be that higher standard beyond a reasonable doubt.

17. The burden of proof rests on the prosecution to prove the guilt of each of these accused on the particular offences. There is no burden on the defendants to establish their innocence. They are presumed to be innocent. They may be convicted only if the prosecution establishes their guilt of the offences charged beyond a reasonable doubt. This means in order to convict you must be satisfied beyond a reasonable doubt of each element of these offences before you can convict on any one, and I will explain the elements later to you.

18. If you have a reasonable doubt about any one of those elements, of course, it is your duty to acquit. It is for you to decide whether you are satisfied beyond a reasonable doubt that the prosecution has proved the elements of the offences. If you are not left with any such doubt your duty is to convict and to find the particular defendant guilty of the charge with which you are dealing.

19. Now, in this case none of the defendants gave evidence, and there is no obligation on them to so do. That is their right. They are not bound to give or call evidence. They are entitled to insist, as every one of you could if you were charged, that the prosecution prove its case. Their silence in Court is not evidence against them. It does not constitute an admission by them, and may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make way in assessing whether the prosecution has proved its case beyond a reasonable doubt.

20. You should also dismiss any feelings of sympathy or prejudice against the parties. No such emotion has any part to play in your decision. Nor should you allow public opinion to influence you. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. Matters may concern you in this case as to the reliability of the witnesses, but it is for you to decide what evidence to accept and what evidence to reject in the case.

21. You have heard the police officers give evidence in the case, and you have heard their concessions, their evidence in the case, and you also had the benefit of the records of interview of each of the accused, but remember that the record of interview, being statements out of Court, are not admissible against the other two accused in the case.

22. I will comment shortly about the police evidence. It is for you to assess the evidence, and the weight of the evidence in this case.

23. Now, there are a couple of other matters. There were admissions made by each of the accused in this case, and I will talk to you about that, but before you can act upon those admissions, you would have to be satisfied they were made. Well, you have heard the recording, and was the statement true.

24. Well, at this stage you have those particular statements before you, but you will have the benefit of the tapes, and I will talk to you about some aspects of those records of interview, but before you can act upon them, were they made, were they true, before you can rely upon any confessional type evidence in the case.

25. When you retire, if you have any further questions, of course, you must write it down and give it to the Bailiff.

26. I mentioned earlier about the view, and I will repeat that. It can be used by you to assist in understanding and applying the evidence you have heard, but it is not evidence, itself. The witnesses have described the scene to you, the photographs were tendered, and that is the evidence you should act upon and you should not substitute what you saw when you went to the scene for it. Instead, you should use that view that you went on to the Valley to assist your understanding of the evidence.

27. Although the defendants have been tried together you must give the case against and for each of them separate consideration. Separately consider the evidence admitted in relation to the particular defendant, whether it be for or against him or her.

28. In respect of each charge each defendant is entitled to have the case decided on the evidence, and on the law that applies to him or her, and as it relating to each particular charge. So you must return separate verdicts in respect to each defendant and separate verdicts on each charge.

Elements of the offences

29. Now, they are some preliminary matters. We talked earlier about the elements of the offences, and if you have before you the charges there you will ready see what is meant by the particular elements of the offences.

30. Counts 1 through to 4 are similar in relation to the elements, and our criminal provides that:

"Any person who knowingly and without lawful justification or excuse publicly exhibits any indecent show or performance, whether on payment of a charge for admission to see the show or performance or not is guilty of a misdemeanour."

So it does not matter whether they are paid or not in relation to this particular charge.

31. Firstly, the date as amended, which was not objected to is the relevant date. That is really not in contention in this case.

32. Counts 1 and 3 concern the allegation of exposing the genitalia by the female accused Ms Innes, and counts 2 and 4 concern the manipulation of the genitalia by another dancer. I just mention that as identifying each of the counts 1 to 4.

33. So the first matter with which we are dealing is element - is knowingly - and I will comment upon the general concept of these elements, and then I will take you to the relevant evidence in more detail for each accused, Mr De Smet and Mr Hewitt, respectively.

34. “Knowingly” means knowledge of the nature of the business as to whether a reasonable person would have knowledge of the nature of the acts. So you look at what knowledge was available. It is an essential element or ingredient of the offence relating to both the publicly exhibiting and the indecent performance.

35. In relation to count 1, for example, Mr De Smet mentioned that he was accepting that he was aware of dancers dancing naked and, obviously, exposing themselves. That particular admission is, of course, only admissible against him. It appeared in his record of interview.

36. On count 2 there were the observations by the police officers of the manipulation of the genitalia. Mr De Smet denied knowledge of what occurred in the private booths.

37. In relation to the further details of the evidence - I will just put that off for the moment and move to the next element, without lawful excuse or justification. That merely means whether it is authorised, justified or excused by law. For example, if there was a performance in a licensed smoke room, as it is called, or cabaret which allows nudity, then the licence would cover that and you would say, well, that is justified or excused by law, or if someone obtains a warrant to enter your property you may think they are doing it illegally, but they are entitled to do so because there is a warrant.

38. Well, in this particular case there is a lack of evidence as to whether there was any such justification or excuse, so you may have a little difficulty with that element.

39. The next element is publicly exhibited. Before I move immediately onto that, it probably is relevant to just go back to the knowledge aspect. On counts 1 and 3 I have mentioned Mr De Smet's evidence. In relation to Mr Hewitt he accepted that he was aware that there was this exposure of their genitalia, so that is relevant to the knowledge.

40. In relation to counts 2 and 4 there was a denial by Mr De Smet about knowledge. The fact that he denies that he has no knowledge of, say, an indecent act or public exhibition is not the end of the matter. There is evidence that this particular place was opened for some month or so. There were performances going on. Mr De Smet was running his business. It becomes a matter of inference whether you are satisfied he had that requisite knowledge.

41. Mr Hewitt, on the other hand, in his record of interview stated that he was aware that some girls touched their genitals during the strip. Of course, that evidence is not admissible against Mr De Smet because it was made out of Court in a record of interview to the police. Mr De Smet was not there, and that was a statement made by Mr Hewitt. Mr De Smet denied he had knowledge of what happened in the private booths.

42. There was, however, evidence from the police officers who observed the second dancer manipulating her genitalia in the private booth.

43. So you look at all of the circumstances in determining whether you can infer, and that there was no other rational inference open to you in this case, whether there was knowledge by each of these accused on counts 2 and 4 being the relevant matters I am talking about at the moment.

44. So leaving, therefore, this question of knowledge - I have spoken about without lawful excuse - to move onto publicly exhibiting. Now, whether the public pays or not is irrelevant. The publicly exhibits - a patron does not physically enter the stage area, for example, or that area behind the booth, but it is open to patrons to view.

45. If the place is one to which the public have access, then it is open for you to find that the performance was publicly shown. It is only necessary that members of the public can view such activities. It is not strictly the private or public nature of the cubicle in question. It is whether the public have access.

46. “Exhibited” is another aspect that I want to talk to you about, because that is another element, you will see in line three, of each of those offences - 1 to 4. Mr De Smet accepts that he told the daily manager, who is Mr Hewitt, on the relevant date, how to handle the business. He says that he takes full responsibility for what the girls do on stage, but not in the private rooms.

47. Exhibit means to hold out or to show. An exhibition is a display of interesting things. An exhibitor is one who exhibits. It is clear, on the evidence of Mr De Smet, that he was the person responsible for the subject exhibition.

48. It is a matter for you as to whether there is other evidence, given Mr Hewitt was the daily manager, who collected the money, advised the prospective clients of the nature of the acts, whether he could be said in any way to be exhibiting.

49. If you are not satisfied beyond a reasonable doubt that he was the exhibitor, then I shall talk to you shortly about an alternative way of approaching any case against him.

50. Now, the next element is an indecent performance. As the case was argued, this is probably the most important part for your deliberation, but of course on each of these, you must be satisfied of each of the elements, beyond a reasonable doubt.

Indecent act or performance

51. So I want to talk to you now about what is an indecent act or performance. Indecent performance relates to Counts 1 to 4, but relevantly, it also arises in Counts 5 and 6 of being an indecent act - the act, of course, being the performance relevantly, on Counts 1 and 3 and the act by that other dancer in manipulating her genitalia, was the act relevant to Counts 2 and 4.

52. Much depends upon the context in which the word "indecent" is used. In order to constitute the offence, there is in this case required an element of moral turpitude, that is depraved or shameful act involved. The accused must have acted in a base or shameful manner. The emphasise throughout falls on some bodily act of the accused that is indecent, judged by prevailing community standards.

53. You are required to determine whether the act as described and in the circumstances in which it is carried out is indecent, having regard to current community standards, accepted by ordinary decent minded, but not unduly sensitive people in Australia, considering where this occurred, in the Valley, the building, the setting and the circumstances, the class of persons and the ages of persons who visit such an establishment.

54. The question is, relevantly, on Counts 1, 3, 5 and 6, whether exposing the genital area and relevantly, on Counts 2 and 4, the manipulating the vulva area, by reason of the extent and manner in which it is done, whether they transgressed the generally accepted bounds of decency.

55. The intended audience for the show, you may think, is a relevant consideration to be taken into account, as part of all of the relevant circumstancess, in deciding whether the ac offends the standards of the community in relation to moral turpitude.

56. To perform an act might amount to an indecent public act or performance in one set of circumstances, for example, on the street, but in other circumstances, it would not be so, for example, in a theatre performance.

57. The question is, given the circumstances of this case, is the act indecent? Consider the intended audience was over 18, the audience were in the privacy of booths, the act of exposure of the genitalia or manipulating the genitalia in those circumstances and generally, the nature of the establishment.

58. One must have regard, amongst other things, to the audience, or the nature of the public place, in determining whether the particular act or performance is indecent. An act may be indecent not because persons seeing it may react to same, but simply because such acts, in all the circumstances, are an affront to a person's sensibility and likely to arouse in others shock, shame or disquiet or revulsion.

59. Now, whether the acts in this case of exposing genitalia or manipulating genitalia does so, is a matter for you. In so doing, look at all the circumstances, the venue, the type of people, who frequent the venue, the people who are allowed in, the privacy of the booths and I remind you to look at the particular setting and circumstances. For example, these acts may not be indecent at a legalised brothel. Therefore, because it's a peep show, does it mean that the acts become indecent?

60. Does it transgress the generally accepted bounds of decency in that setting and in those circumstances? Having mentioned a legalised brothel, as it was mentioned in address, the setting up of those may not reflect the views of some members of the community.

61. The Government, who represents the electorate, have passed a law. You may think that the law represents the values in the community and you may think that what occurs in a legal brothel may include all type of conduct which includes the matters with which we are dealing here; however, some of you as individuals, may be against legalised brothels. That does not mean that the acts which occur there are indecent.

62. I use that as an example. In arriving at your decision as a group, you are required to reflect community values. You should not be oversensitive to these matters, if you are to reflect community values. You look at all of the circumstances and the setting in which the acts occurred, in arriving at your verdict, as to whether you are satisfied beyond a reasonable doubt, that this was an indecent performance or act.

The summing up dealt with other issues.

VERDICTS: NOT GUILTY TO ALL CHARGES.