R v Marchant
[2001] QDC 325
•17/12/2001
DISTRICT COURT OF QUEENSLAND
CITATION: R v. Marchant [2001] QDC 325 PARTIES: THE QUEEN v. TENNILLE ANNE MARCHANT FILE NO/S: Indictment 2353 of 2001 DIVISION: PROCEEDING: Application for ruling under s.592A. ORIGINATING
COURT:District Court Brisbane DELIVERED ON: 17 December 2001 DELIVERED AT: Brisbane HEARING DATE: 30 November 2001 JUDGE: McGill DCJ ORDER: Application to be listed for further hearing CATCHWORDS: CRIMINAL LAW – Indecent acts – whether occurred in
“place to which the public have access”.CONSTITUTIONAL LAW – Inconsistency of Laws –
whether prohibition of indecent acts inconsistent with
Commonwealth legislation applying Art 17 of the
International Covenant on Civil and Political Rights.WORDS AND PHRASES – “place to which the public has access”. Criminal Code s.227(1)(a).
Human Rights (Sexual Conduct) Act 1994 (Commonwealth)
International Covenant on Civil and Political Rights Art 17.Associated Provincial Picture Houses Ltd v. Wednesbury
Corporation [1948]1 KB 223 - cited
Coeriel & Anor v. The Netherlands (UNHRC
Communication 453/91) - considered
Fox v Sawdy, ex parte Fox [1980] Qd.R. 378 - applied
McIvor v Garlick [1972] VR 129 – followed
R v. Arnold [1993] 30 NSWLR 73 – applied
Schubert v. Lee (1946) 71 CLR 589 – followed
Toonen v. Australia (UNHRC Communication 488/92) –
considered
Ward v Marsh [1959] VR 26 - followedCOUNSEL: S. Vasta for the Crown
P.E. Nolan for the accusedSOLICITORS: Director of Public Prosecutions for the Crown
Harris Sushames for the accused
This is an application under s.592A of the Criminal Code for a ruling prior to the trial on whether the indictment should be quashed. The ground of the application, as set out in a summary of argument filed on behalf of the applicant, is that the provisions of s.227 of the Criminal Code, against which the applicant is charged with having offended, are inconsistent with s.4 of the Human Rights (Sexual Conduct) Act 1994 (Commonwealth). Reliance is placed on s.109 of the Australian Constitution; the requirements of the Judiciary Act as to service of notice on the Attorneys-General have been complied with.
The indictment presented on 13 September 2001 charged the applicant that on “the 13th day of April 2001 at Brisbane in the State of Queensland [she] wilfully and without lawful excuse did an indecent act at a place to which the public were permitted to have access.” This charges an offence against the first limb of s.227(1) of the Criminal Code. That section provides as follows:
“(1) Any person who –
(a)
wilfully and without lawful excuse does any indecent act in any place to which the public are permitted to have access, whether on payment of a charge for admission or not; or
(b)
wilfully does any indecent act in any place with intent to insult or offend any person;
is guilty of a misdemeanour, and is liable to imprisonment for two years.
(2) The offender may be arrested without warrant.
(3) Subsection (1) does not apply to a person who does an indecent act
under the authority of an adult entertainment permit.”
I was told the indictment followed a committal hearing. The matter has not yet been listed for trial; the application for the ruling was filed on 26 October 2001.
For the purposes of this application it was agreed that the Crown case as to the facts giving rise to the charge was as follows:
On the relevant date two police officers entered premises where they spoke to the applicant. Shortly after one paid $80[1] to a receptionist on behalf of the other, who was then taken into a room by the applicant. It was a small room, although there would have been room for a small number of additional persons apart from the two (the applicant and the officer) who were there. The door to the room was fitted with a lock, but it was not locked. The door had a peep hole at eye level. In the room the officer sat at one side while the applicant removed her clothing and committed an indecent act. There was no physical contact between them. During the period the officer was in the room on one or two occasions the other officer entered briefly. That the two men were police officers was not disclosed to the applicant or other people at the premises, at least until after the relevant facts occurred. It was not part of the Crown case that if any other member of the public had been willing to make the appropriate payment that other member of the public would have been admitted to the room with the police officer and the applicant.
[1] This is relevant as background only; payment is not relevant to the elements of an offence under s.227, and there is no charge before the court under the laws regulating prostitution.
Assuming that those facts would constitute an offence under s.227(1)(a), the applicant submitted that such an operation of the section was inconsistent with s.4 of the Human Rights (Sexual Conduct) Act 1994 (Commonwealth). Section 4 states as follows:
“(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on civil and political rights.
(2) For the purposes of this section, an adult is a person who is 18
years old or more”.It was agreed that at the relevant time the two people in the room were 18 years old or more, and that the indecent act alleged against the applicant amounted to sexual conduct. The applicant submitted that for the purposes of the Commonwealth Act what was alleged to have occurred here occurred in private, and that the application of s.227 in such circumstances amounted to an arbitrary interference with the privacy of the applicant.
Article 17 of the International Covenant on Civil and Political Rights[2] says:
“(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
(2) Everyone has the right to the protection of the law against such
interference or attacks”.[2] As it appears in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Commonwealth).
It is immediately apparent that s.4 of the Commonwealth Act does not prohibit all interference, under the law of a State, in sexual conduct involving only consenting adults acting in private. That is consistent with statements made by the then Attorney-General when moving the second reading of the Bill for this Act. He expected that it would not be inconsistent with State laws prohibiting incest, or regulating prostitution[3]. It is only “arbitrary” interference which is prohibited.
[3] Hansard, House of Representatives, 12 October 1994, p.1779
What interference is “arbitrary”?
The question of what interference to privacy is “arbitrary” for the purposes of article 17 of the Covenant, and therefore for the purposes of s.4 of the Commonwealth Act, is a difficult and obscure one. The term “arbitrary” has a range of meanings, as shown by the following which are given in the Macquarie Dictionary:
“1. Subject to individual will or judgment; discretionary.
2. Not attributable to any rule or law; accidental.
3. Capricious; uncertain; unreasonable.4. Uncontrolled by law; using or abusing unlimited power; despotic, tyrannical.
5. Selected at random or by convention.”
A special meaning is given as well which presumably was not intended here. Looking at the covenant, article 17 refers to “arbitrary or unlawful interference” so presumably arbitrary was not intended to mean merely unlawful. Nor presumably was it intended to provide some form of protection against accidental interference with privacy. Meaning 5 also does not seem readily to apply, but meanings 1, 3 and 4 could apply.
The word appears in other places in the Covenant. Article 6 provides, among other things, that “no one shall be arbitrarily deprived of his life”. Clearly the word there was not intended to exclude deprivation of life under due process of law, because Article 6 goes on to contemplate the existence of the death penalty, by seeking to impose restrictions on that penalty. In this context, any of the meanings would be plausible. Article 9 states, among other things, “no one shall be subjected to arbitrary arrest or detention”. Other provisions of Article 9, and the general thrust of the article, seem to me to indicate fairly clearly that it is meaning 4 which was intended there. Article 12 states, among other things, “no one shall be arbitrarily deprived of the right to enter his own country”. Again, a range of meanings is plausible. If the word was used consistently throughout the Covenant, that suggests meaning 4, although I think the presumption that the word was used in a consistent way throughout the document is in this case a weak one, and the only clear indication that emerges is that whoever drafted the Covenant did not approve of conduct which was arbitrary.
That the term “arbitrary” is ambiguous is shown by the analysis of some of the debates in connection with the drafting of the Covenant in McGoldrick “The Human Rights Committee – Its Role in the Development of the International Covenant on Civil and Political Rights” (1991). At pp. 342-3, the author discusses the drafting debates dealing with the use of the term “arbitrarily” in Article 6 (dealing with the right to life, referred to earlier):
“It was explained that a clause providing that no one should be deprived of his life ‘arbitrarily’ would indicate that the right was not absolute and obviate the necessity of setting out possible exceptions in detail. Others criticised the use of the term ‘arbitrary’ because it failed to express a generally recognised idea and was ambiguous. It was argued that the term ‘arbitrarily’ meant ‘illegally’ or ‘unjustly’ or both and that it should be retained as it has been used in several articles in the Universal Declaration of Human Rights and in certain articles of the draft Covenant. The term again prompted differences of opinion in the Third Committee of the General Assembly where various meanings were suggested, for example, ‘fixed or done capriciously or at pleasure; without adequate determining principle; depending on the will alone; tyrannical; despotic; without cause based upon law; not governed by any fixed rule or standard’. … During the discussions in the Third Committee, some representatives argued that the term ‘arbitrarily’ was synonymous with the expression ‘without due process of law’ and implied such guarantees as the right to a fair trial and protection against false arrest. In their considerations under the Optional Protocol, the Human Rights Committee have the task of determining in what circumstances the deprivation of life would be characterised as arbitrary and thus violate Article 6. It is difficulty to conclude other than that no clearly defined meaning of the term emerged from the drafting process. … There is little doubt that the terms of Article 6 and the inconclusiveness of the travaux preparatoires leave the Committee with the flexibility to develop and apply its own understanding of ‘arbitrary’ on a case by case basis. There seems to be no ordinary meaning or clear evidence from the travaux preparatoires to restrict that flexibility”.
In other words, in the context of Article 6, the term was used not as a reflection of an international agreement as to the acceptable exceptions to an otherwise recognised right to life, but because its ambiguity covered a lack of international agreement on the scope of such exceptions. Perhaps the same applied in the drafting of Article 17: it was there regarded as a safe term because each nation automatically assumed that any restriction it wanted to impose on privacy of the individual would not be arbitrary (as that term was understood by it). Rather than suggesting there is a specific meaning of the term in Article 17 which could be adopted by the Australian legislature, this suggests that the term was used in Article 17 because it did not have a specific meaning.
It appears that the Parliament, or at least the Government, at the time the bill was passed, intended that a much more rigorous test had to be met by a law in order to prevent it from being characterised as “arbitrary” than anything contemplated by the United Nations. The Attorney-General said[4]:
“The key word in this test is “arbitrary”. The term “arbitrary” guarantees that where laws do intrude on people’s privacy, the laws must be justified, necessary and reasonable in the circumstances. In order to meet this test, a law must have a legitimate purpose and be a proportional means to achieve that purpose. All such laws must pay due regard to the rights and dignity of the individual”.
That seems, with respect, to be making the word do a lot of work. It has echoes of the test adopted by the High Court to determine whether legislation is within the power of the Parliament where what is relied on is a power expressed by reference to a purpose[5]. Insofar as the Commonwealth Parliament’s legislative authority depended upon what was justified, necessary and reasonable in the circumstances, and proportionate to achieve the purpose of implementing within Australia an international treaty obligation, that legislation would be appropriate and adapted to that purpose, and hence be valid.
[4] Hansard, House of Representatives, 12 October 1994, p.1779.
[5] E.g., legislation for the purpose of giving effect to a treaty, under the external affairs power: Richardson v. Forestry Commission (1988) 164 CLR 261 at 311-2; Victoria v. The Commonwealth (1996) 187 CLR 416 at 486-8.
Nevertheless, some support for the interpretation of “arbitrary” used by the Attorney-General may be found in the decision of the Human Rights Committee in the matter of Toonen v. Australia (Communication 488/1992), that certain provisions in the Tasmanian Criminal Code involved the violation of rights under Article 17 requiring the repeal of the offending law. This was the determination which was the precursor to the legislation in question. The majority of the committee referred to its General Comment 16 on Article 17, in which it expressed the opinion that “the introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances”. The Committee went on to interpret the requirement of reasonableness as implying “that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case”.
Even that is a fairly vague test, and appears to draw heavily on the submissions made to the Committee on behalf of the Commonwealth of Australia which, according to the reasons of the Committee, had referred to the general comment on Article 17 and submitted that, for laws not to be arbitrary, they must be reasonable in the sense of being “based on reasonable and objective criteria and proportional to the purpose for which they are adopted”. The majority of the Committee appears to have done little more than rework the submissions made to it on behalf of the Commonwealth.
The matter of Toonen is somewhat unsatisfactory, because of the circumstance that both parties to the proceeding were really on the same side. The Commonwealth in its submissions conceded that Mr. Toonen had been the victim of arbitrary interference with his privacy and that consensual sexual activity in private is encompassed by the concept of privacy in Article 17. In these circumstances it is unsurprising that the Committee would conclude that:
“It is undisputed that adult consensual sexual activity in private is covered by the concept of privacy, and that Mr. Toonen is actually and currently affected by the continued existence of the Tasmanian laws.”
The Commonwealth did forward a submission prepared on behalf of Tasmania seeking to support its laws, but in its own submission vigorously attacked the arguments advanced on behalf of Tasmania. Interestingly, one member of the committee, Mr. Wenneogren, put forward a separate decision arguing that Article 17 does not establish any true right or freedom, but merely mandates that no one should be subjected to arbitrary or unlawful interference with privacy. In the present case, the interference was unlawful because it was discriminatory and therefore contrary to Article 26 of the Covenant, and it was only because of this conclusion that he would regard the laws as being in breach of Article 17.
There was also a diversity of views as to the concept of “arbitrary” in the decision of the Committee in Coeriel & Anor v. The Netherlands (Communication 453/91) where the committee concluded that Dutch regulations restricting the right to change one’s surname had operated in breach of the author’s rights under Article 17 in a way which the majority regarded as not reasonable. It concluded that the effect of the test of arbitrariness referred to in general comment 16 was that a request to have one’s change of name recognised could only be refused on grounds that were reasonable in the specific circumstances of the case, and went on to conclude, with minimal analysis, that the grounds for limiting the author’s rights under Article 17 were not reasonable.
A dissent by one member, Mr. Herndl, however, was spoken of thus in a commentary on the Covenant by Joseph Schultz and Castan (Oxford University Press, 2000) at p.358-9:
“Herndl’s well argued analysis of the nature of identity and the issue of interference with privacy is one of the few instances where a committee member has addressed this issue in some depth. Herndl however subscribes to a different meaning of ‘arbitrary’ from that adopted by the rest of the Committee. He denies that ‘arbitrariness’ equates with ‘reasonableness’. Instead, he defines ‘arbitrary’ as meaning ‘discriminatory’. Herndl’s narrower definition has not been endorsed in any other Optional Protocol case”.
It is difficult to know to what extent (if indeed at all) the meaning of the term “arbitrary” in Article 17, for the purposes of enforcing Australian law under the Commonwealth Act, is to be determined by reference to the interpretation placed on it by the Human Rights Committee. Equating “arbitrary” with “unreasonable” also throws up the question of whether, for the purposes of deciding whether a State Act is invalid as inconsistent with the Commonwealth Act, the test is whether the court thinks that the State Act is unreasonable, or whether the State legislation would be preserved if the court found that it was capable of being regarded as reasonable. The latter interpretation would recognise that in a democracy the determination of the extent to which non-absolute freedoms are to be curtailed by legislation is prima facie a matter for decision by the legislature. It would involve the sort of test of unreasonableness expounded by Lord Greene MR in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 at 230.[6] Unless that interpretation were adopted, the Commonwealth Act would operate as an invitation to judicial activism, with judges being able to strike down State legislation simply on the basis that it interfered with the matters referred to in Article 17 in a way that they regarded as unreasonable, which could mean no more than a way of which that judge personally disapproved. It would be essentially a subjective test.
[6] Applied by Gibbs J in Parramatta City Council v. Pestell (1972) 128 CLR 305 at 327, and discussed by Brennan J in Attorney –General (NSW) v. Quin (1990) 170 CLR 1 at 36.
There is some English authority that, in a commercial context, a prohibition on acting “arbitrarily” is to be construed as a prohibition on acting without any reasonable cause: Treloar v Bigge (1874) LR 9 Exch 151 at 155; Barrow v Isaacs [1891] 1 QB 417 at 419; Mills v. Cannon Brewery Co [1920] 2 Ch. 38 at 45. That would ordinarily mean any cause capable of being regarded as reasonable.
Plainly legislation which prohibits interference by a State through its legislation in conduct which, under an international convention to which Australia is a party, is to be protected by law is within the legislative capacity of the Commonwealth Parliament under s.51(xxix) of the Constitution. But in view of the way the Act is drafted what matters is what the term “arbitrary” really means in Article 17 of the Covenant, not what Parliament might have thought it meant, or the Attorney- General thought it ought to mean, or various members of the Human Rights Committee think it means, nor indeed by reference to the political purpose which the Commonwealth legislation was intended to achieve. I am not aware of any authority on the meaning of the word in this section of this Act, and, since I can resolve this matter without deciding this point, I propose to do so and say nothing more about it.
Is there inconsistency?
[20] At first glance, the two provisions are not obviously inconsistent. The Commonwealth Act deals with things occurring “in private”, while the Code makes an offence certain acts in a place to which the public are permitted to have access. Whether there is any inconsistency depends upon whether there is any scope for overlap; can there be a place which would satisfy the latter requirement whilst still being “in private” for the purposes of the former Act. It is only if such a situation arises that it is necessary to consider whether the operation of s.227 of the Code amounts to an arbitrary interference with privacy within the meaning of Article 17 of the Covenant. That depends on the proper construction of the relevant expressions in the two statutes.
Scope of s.227(1)(a).
The expression in s.227 “any place to which the public are permitted to have access, whether on payment of a charge for admission or not” contemplates not only places to which there would be unrestricted public access, such as a public street or public park, but also places which, although under the control or in the occupation of a particular person or entity, the public are allowed to enter, either indiscriminately or on payment of a fee[7]. The word “place” could cover a number of different areas or subdivisions of space: it could be a large enclosed area to which admission is obtained, such as the RNA Showgrounds[8], or it could be a whole building such as an historic home which is open for inspection, or a room or collection of rooms within a building[9], such as the auditorium of a theatre[10], or perhaps even some subdivision of a room, in an appropriate case.[11] It may be a temporary structure or enclosure.[12] The present case involves a room within a building; it is not necessary for me to consider whether anything less than this, or for that matter anything more than this, could be a place.
[7][8] Toomey v. Williams, ex parte Williams (1898) 8 QLJ 148 – concerning Woolloongabba Cricket Ground.
[9] Ward v Marsh [1959] VR 26 – ground floor of Myer emporium was a public place, although not all parts of the building were open to the public.
[10][11] A toilet is a public place if it is available to the public: R v Harris (1871) LR 1 CCR 282; Moloney v Whitwell [1924] VLR 454; but not if it is ordinarily used only by a limited group, such as employees: O’Sullivan v Brady [1954] SASR 140 at 142.
[12] R v Saunders (1875) 1 QBD 15.
There are a variety of authorities on whether or not particular places are public places, or places of public resort[13], but not many of them deal with the question of whether something can be too small to be within that concept. Buses[14] and railway carriages[15] have been held to be public places when in use for conveying the public. There has been some debate about whether a person inside a motor vehicle is in a public place[16]. That turns on whether the vehicle is itself in a public place, and so the issue is whether relevantly the person concerned is in the larger public place[17]. That was the issue discussed in Mansfield v. Kelly [1972] VR 744, where the view was expressed however that a caravan, a tent or other habitat or receptacle was not itself a public place although in a public place, presumably because it was not itself open to the public, and the interior was shielded from the public. In my opinion, a particular room is capable of being a place, and subject to the consideration of whether it can be said that the public is permitted to have access to it, it would be capable of being a place within the meaning of the section.
[13] An expression apparently first used in the English Vagrancy Act 1824(5 Geo IV c.83); see Ward v. Marsh [1959] VR 26 at 32 per Sholl J.
[14] R v. Holmes (1853) Dears CC 207 at 209, 169 ER 697; 22 LJMC 122 and see Milne v. Mutch [1927] VLR 190 – tram carrying passengers.
[15] Langrish v. Archer (1882) 10 QBD 44; Re Freestone (1856) 1 H&N 93, 156 ER 1131.
[16] See R v. Mojelski (1967) 60 WWR 355; McKenzie v. Stratton [1971] VR 848; and see R v. Weller (The Times, 18 April 1894) – interior of a horse drawn cab was a public place.
[17] See for example Walker v. Crawshaw [1924] NZLR 93 – intercourse in the back seat of a car parked in a public street held to be in public.
What is meant by the next part of the phrase, “the public are permitted to have access”? In my opinion, there must be some temporal connection between the access of the public and the doing of the indecent act; I think it unlikely that the legislature intended that the doing of an indecent act in an empty theatre to which the doors were closed and locked would be made an offence, merely because at other times of the day the public would be permitted to come into the theatre on payment of an appropriate admission fee (or indeed, without payment of a fee[18]). On the other hand, it would be unduly restrictive of the operation of the section to exclude from its scope an indecent act done before paying customers in a theatre, merely because during the actual time when the indecent act was done the doors were locked, or in some other way more of the public were denied admission. I do not think that it is necessary for the public to have immediate access to the place at the moment the indecent act is done[19], so long as the public were permitted to have access to the place in a way which enabled members of the public, if necessary on payment of the appropriate admission fee, to be present when the indecent act was done.
[18] McAney v. Kearney; ex parte Kearney [1966] Qd.R. 306 at 317. This is the converse of Sewell v. Taylor (1859) 7 CBNS 160, 141 ER 776 where a private house was held to be a “place of public resort” while a public auction was being held there.
[19] In Frischkorn v. Rush [1957] QWN 7, Hanger J held that the bar of a hotel was a public place notwithstanding that it was past closing time and the front door of the hotel and the door to the bar were closed, because there were in fact a number of members of the public who were still there, having come there when it was open to the public, and they had not yet dispersed.
The expression used in s.227 is similar to the term “place of public resort” which appeared in s.3 of the Vagrant Act 1851,[20] which was held to include a theatre, or a sporting venue, even if it was one at which a charge of admission was made[21]. The later Vagrants, Gaming and Other Offences Act 1931 in s.2 defined “public place” very broadly, and in a way which included a place “open to access by the public, whether on payment or otherwise”. Other definitions of “public place” in terms similar to the wording used in s.227 were to be found in a number of English statutes, including the Licensing Act 1902 s.8., the Public Order Act 1936, s.9(1), the Prevention of Crime Act 1953 s.1, the Firearms Act 1968 s.574, and the Indecent Displays (Control) Act 1981 s.1(3).
[20] 15 Vic No 4, a pre-separation NSW Act.
[21] Toomey v. Williams (1898) 8 QLJ 148.
The present facts raise the issue of whether a place can be one “to which the public are permitted to have access” if they are allowed to have access only one at a time[22]. The argument for the Crown is that the section refers to a place to which the public is permitted to have access but not necessarily in any particular numbers, and it would be sufficient if the public had access one at a time. As long as there was an open invitation which a member of the public could accept to go into the cubicle and view the indecent act, subject only to the cubicle being vacant at the time, the place fell within the definition, even if only one person or a small group of people could view the indecent act at any particular time. The place would fall within the terms of this section if the public access to it could be enjoyed consecutively. The position was in principle no different from the situation where the capacity of the public to have access to the particular place was limited by the size of the place. In theory that could happen with a place of almost any size, so long as the potential public was larger. The Brisbane Cricket Ground would not cease to be a public place merely because it filled up and no more members of the public could obtain admission.
[22] Or perhaps in very small numbers; the evidence in this case I was told was that it would have been possible for at least two and possibly three people to be presented in the cubicle with the applicant at the time the relevant act was performed.
For some purposes at least the distinction has been drawn between a public place to which anyone can enter[23], subject perhaps to paying an entry fee and perhaps the right of the occupier to exclude particular people, and a place which people are only allowed to enter if specifically invited, or if they are members of a particular limited group.[24] On this basis the public nature of the place depends not on the number of people who can be in it at a particular time, but on the basis on which any member of the public is permitted to use it, even though while using it that member of the public will not have exclusive use of it.
[23] O’Mara v. Lowe, ex parte O’Mara [1971] QWN 34 – the driveway of a petrol station where the public generally was invited to drive in was a public place. Followed in R v. Sweeney [1984] 1 Qd.R. 628 – driveway of a caravan park.
[24] See for example Glynn v. Simmonds [1952] 2 All E.R. 47 where Lord Goddard CJ distinguished in this way between Tattersall’s Enclosure to which the public were admitted on payment of 30 shillings, and the Royal Enclosure.
What concerns me about the interpretation contended for by the Crown is that it would seem to bring within the scope of s.227 a room in a hotel or motel. Such rooms are available for the use of the public, although ordinarily they are used by the public individually or in pre-determined groups, and while being so used, they are used exclusively by that person or group[25]. Once such a room is occupied by a customer, it ceases to be available to the public, and the customer uses the room not as part of the public but individually. Such an interpretation would be excluded by treating s.227 as limited to a situation where the public have access to the place in the sense that the access is exercised by the public as members of the public[26]. They would do that by not having exclusive access to the place, or access only as members of a specific group.
[25] Presumably there must be at least two people present for there to be an indecent act; it is difficult to see how anything done by a person alone in a room could be indecent (See Donnelly v. McDonald (1989) 12 QL 111 at 119 and see Attorney-General v. Huber (1971) 25 SASR 142 at 168-9) unless the activity could be seen elsewhere: Fabinyi v. Anderson (1974) 9 SASR 336.
[26] See Schubert v. Lee (1946) 71 CLR 589 at 592; McIvor v. Garlick [1972] VR 129 at 133-4, Ward v. Marsh [1959] VR 26 at 28 per Lowe J: “every place to which the public qua public may go.”
If the section on its true interpretation requires that the public have access to the place as the public, this would involve the place being available to the public to use in public, but it would not extend to a place which the occupier invited the public to use as individuals, that is to say, what was offered to the public was not public use but exclusive use. On this test, a place capable of holding 10 or 100 or 1000 people to which the public was invited (whether or not payment of an admission fee) would be within the section, even if at the relevant time there happened to be only one member of the public who had taken advantage of the opportunity to have access to it, because that access was not exclusive[27]. He might be receiving a private performance, but that would be fortuitous. On the other hand, a series of private performances at a particular place where such performances were offered to members of the public would fall outside the scope of the section, because what was being offered was access which, while it was being enjoyed, was private access, rather than public access.
[27] See R v. Hildebrandt [1964] Qd.R. 43 at 65, where Stable J held that the interior of the aircraft was “in public” because “those in the aircraft were not members of the same club at an outing, or of the same family, but were ordinary citizens who had paid a fare to be taken by a common carrier from one place to another”.
There are a number of reasons why I favour that construction of the section. The first is that it would appear to fit in better with the apparent purpose of the section as a whole. The first limb of the section is essentially directed at combating public indecency, an interpretation supported by the presence of the exclusion in subsection (3). It is the approach adopted in the helpful analysis of Newton J in McIvor v. Garlick [1972] VR 129 at 153-4.[28] It is also consistent with the general practice of interpreting statutes dealing with public indecency as being concerned to counter conduct which would come to the attention of a number of people[29], and, indeed the common law under which more than one person had to be present to see what was happening before the indictable offence of outraging public decency was committed[30]. When interpreting a penal statute it is preferable to resolve ambiguity in a way which restricts the scope of the prohibition involved, or the ambit of the conduct constituted as an offence[31].
[28] And in the other cases in note 24.
[29] See for example R v. Thallman (1863) Le & Ca 326 169 ER 1416 where it was held that a place received its public character from the fact that it was observable from a number of other places.
[30] R v. Mayling [1963] 2 QB 717; R v. Brack (1921) 21 SR(NSW) 748; R v. Fonyodi [1962] VR 86.
[31] R v. Arnold (1993) 30 NSWLR 73; Fox v Sawdy, ex parte Fox [1980] Qd.R. 378 at 380.
If an offence can be committed under s.227(1)(a) only in a place to which the public are permitted to have access as the public, the persons in that place would, in my opinion, necessarily not be “in private” in the sense in which that expression is used in s.4 of the Commonwealth Act. Whatever the ultimate limits of that expression may prove to be, and it does not seem to have received a great deal of judicial notice so far, it is reasonable to interpret it as standing in contrast to something which happens in public, and something which happens in a place to which there is public access which is being exercised as such is obviously not happening in private. On the construction which I favour of s.227(1)(a), therefore, and on the construction I favour of s.4(1) of the Commonwealth Act, in my opinion there is no inconsistency between the two provisions. Any facts which fell within the scope of the former could not fall within the scope of the latter, and so inconsistency of operation could not arise. It is therefore unnecessary for me to consider whether, if there was some inconsistency, the prohibition in s.227 would amount to an arbitrary interference with privacy for the purposes of the Commonwealth Act.
The applicant has therefore failed on the ground sought to be made out for quashing the indictment. Nevertheless, the reasoning set out above leads, perhaps inevitably, to the conclusion that on the facts alleged as constituting the Crown case, the Crown cannot prove all of the elements required to establish an offence under s.227. However, that point has not been finally argued, and I believe that I should give the Crown a further opportunity to be heard in relation to that issue before deciding whether I should rule that the applicant has no case to answer, and quash the indictment on that ground. I will therefore publish these reasons and list the matter for further hearing in relation to the application for the ruling.
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| resort” which has been in use for a long time, to overcome an interpretation of “public place” which excluded places in private occupation but open to the public: see Case v. Storey (1869) LR 4 Exch 319 at 323; Steele v. Lewis (1883) 1 QLJ 137; Clarriss v. Lamb, ex parte Lamb [1911] QWN 28 (concerning the goods shed at Miles); Brannan v. Peek [1948] 1 KB 68. It is successful in this: Kitson v. Ashe [1899] 1 QB 425; Attorney-General v. Huber (1971) 2 SASR 142 at 155. |
| Dobell v. Petrac Attorney-General v. Huber there is some control exercised by the management as to who is admitted. But if access were allowed |
[1961] VR 70; (1971) 2 SASR 142 at 183, 203, even if public: Symonds v. Nominal Defendant (Qld) [1992] 1 Qd.R. 444, which reflects the distinction drawn in Glynn v. Simmonds [1952] 2 All ER 47 between a public enclosure and a private enclosure.
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