R v Newcombe and Barns

[1995] QSC 161

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 545 of 1994
  C.A. No. 546 of 1994

Brisbane

Before Macrossan CJ

Pincus JA

Davies JA

[R v. Newcombe & Barns]

THE QUEEN

v.

CATHY ANNE NEWCOMBE and JOSEPHINE JOANNE DAWN BARNS
  Appellants

Judgment delivered 05/05/1995

Separate reasons of Macrossan C.J., Pincus and Davies JJ.A., all concurring as to the orders made.

APPEALS AGAINST CONVICTION DISMISSED.

CATCHWORDS: CRIMINAL LAW - PROSTITUTION; whether a body slide is a sexual act within meaning of s.229D of the Criminal Code;  whether a genuine belief that the act was not a sexual act is a reasonable excuse within s.229I;  whether ss.229I and 229E require a suspicion on reasonable grounds that two or more prostitutes were, contemporaneously within the presence of the accused at the place engaged in the act of prostitution.

Counsel:  Mr. T. Carmody for the appellants

Mr. P. Rutledge with him Miss E. Wilson for the respondent

Solicitors:        Legal Aid Office for the appellants

Queensland Director of Public Prosecutions for the respondent

Hearing Date:   20 March 1995

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 05/05/1995

I agree with the reasons which have been prepared in this matter by Davies JA and with the order that he proposes.
           I have also had the advantage of reading the reasons prepared by Pincus JA and out of deference to what is there stated, would add the following observations. 
Once it is accepted, as a matter of construction, that "sexual act" in s.229D is not restricted to acts between participants involving sexual penetration then there was no difficulty in the present case in characterising the activities involved after allowing for the description that has been given of them. No reasonable jury could have failed to conclude that the acts described amounted to "sexual acts". Nevertheless, it was both conventional and necessary for the decision on this matter to be left to the jury as an essential element in the offence to be proved by the Crown and this is so even though the jury, acting reasonably, would have had no difficulty whatsoever in coming to its conclusion on this aspect. I would accept that on the facts of this case there was no need for specific guidance to be given by the Judge upon the meaning under the section of "sexual act" because the meaning of the phrase as ordinarily understood was what the jury would have been called on to apply. The circumstances of a particular case will determine the extent of explanations which a trial judge will find it necessary or desirable to give.
           I accept that in other circumstances which might arise it may be necessary for a trial judge to give a more expanded direction or further assistance to a jury on the determination of the question whether a "sexual act" has occurred.  However, I would prefer to leave such a matter until the occasion calling for it arises and the Court has had the benefit of further appropriately focussed arguments on the question.

REASONS FOR JUDGMENT - PINCUS J.A.

I have read the reasons of Davies J.A.  I agree with his Honour's views with respect to the second and third points - i.e. the question of reasonable excuse, and whether the "two or more prostitutes" referred to in s. 229I must be suspected of engaging in sexual acts engaged in at the very time the person mentioned in the section is found in the relevant place.  I have had more difficulty with the first topic dealt with by Mr Carmody, for the appellants, namely the judge's direction with respect to the expression "sexual act" in s. 229E.  As to that matter, Mr Carmody made a number of submissions, but that which appears to me to have most force is that the judge should not have left the question of the meaning of "sexual act" to the jury without any guidance.

Mr Carmody put forward as a possible construction of s. 229E that the "sexual act" there referred to must involve the sexual organ of a participant, but in the end he appeared to abandon that - in my view, rightly.  He also contended that it is implicit in paras. (a) and (b) of s. 229E that the sexual act referred to must, by implication from para. (c), be an act of an indecent nature.  Like Davies J.A. I reject both of these submissions.

In similar contexts, tests have been devised for the guidance of juries;  perhaps the best known example is the Hicklin test of obscenity, being "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall":  Hicklin [1868] L.R. 3 Q.B. 360 at 371. One purpose of doing so is to reduce the possibility that excessively generous applications of such vague words may produce outcomes which seem unjust. An example of such an unjust outcome is the case of Black (1921) 21 S.R.(N.S.W.) 748, in which a man who was naked in the presence of his wife and children, in private, was because of that "repulsive and abominable" behaviour sent to prison.

According to Lord Devlin, the construction of words in their ordinary meaning is a question of law for the judge:  see "Trial by Jury" p. 97.  In this spirit, the notion of living on the earnings of prostitution was judicially defined, so far as necessary for the purposes of the case, in Shaw v. Director of Public Prosecutions [1962] A.C. 220 at 263, 264, 270. Like the words in issue there, the expression "sexual act" is capable of a very wide meaning. It is not fanciful to suggest that a kiss may be regarded as a "sexual act", but it is unlikely that Parliament intended that people should be regarded as prostitutes for kissing, even "under an arrangement of a commercial character". Mention was made during argument of some difficulties in applying the legislation to paid entertainers; it seems unlikely that the statute was intended to catch film or stage actors in the course of their work, although a wide reading of the definition of "sexual act" might well cover simulations of sexual activity in plays and movies.

In their context, the activities described in paras. (a) and (b) of the definition of "sexual act" in s. 229E appear to me to refer to acts intended to achieve substantial sexual stimulation of one or more of the participants;  on this view it would not be necessary that the acts in question lead to orgasm, nor would it be enough to show merely that acts were done which have sexual implications - e.g. obscene gestures.  I take the view that it would be proper to direct juries along these lines.  That did not occur here;  the jury in the present case was left entirely to its own devices, in finding a meaning for "a sexual act".  If that expression had a well understood meaning in ordinary usage, there might be no objection to the course the primary judge took, but in truth, "sexual act" does not have such a meaning.  The words "the sexual act" would ordinarily, I think, be taken to refer to sexual intercourse, but "a sexual act" is too vague an expression to be left to the jury without a direction.

In these circumstances the appellants have a prima facie right to a new trial, but I have come to the conclusion that the verdicts should not be disturbed.  Had the jury been given such a direction as in my view would have been appropriate, the activities involved here, described in the reasons of Davies J.A., must have been held sufficient to fall within the proper meaning of "a sexual act".

I agree that the appeals should be dismissed.

REASONS FOR JUDGMENT - DAVIES J.A.

These are both appeals against convictions for offences against s.229I of the Criminal Code.  That section relevantly provides:

"A person who, without reasonable excuse, is found in, or leaving after having been in, a place suspected on reasonable grounds of being used for the purpose of prostitution by 2 or more prostitutes commits a crime."

The appellants were relevantly found in premises in which it was said that a service variously described as a "body slide", "sensual male massage", "body on body massage" and "intimate massage" was provided.  The appellant Barnes was said to have offered that service at those premises to an undercover policeman.  The appellant Newcombe was a receptionist at those premises.
Whilst the appellants' notices of appeal each contained six grounds these were, in the written and oral submissions of counsel for the appellants, reduced to three propositions on the basis of any of which, it was submitted, each was entitled to have her conviction set aside. The first was that a body slide is not a sexual act within the meaning of s.229D of the Criminal Code and consequently that the premises were not being used for the purposes of prostitution within the meaning of that term in s.229E.  The second was that a genuine belief on the part of an accused that the act said to constitute the sexual act was not a sexual act was a reasonable excuse within s.229I.  And the third was that s.229I, read with s.229E, required a suspicion on reasonable grounds that two or more prostitutes were, contemporaneously with the presence of the accused at the place, engaged in the act of prostitution there.

1. Whether a body slide was a sexual act
              A body slide involved bodily contact between a nude female provider of the service and her nude male client.  It did not involve sexual intercourse or masturbation by the female of the male.  However it might involve masturbation by the male of himself or ejaculation in consequence of the bodily contact which included, as the term implies, movement of the female body against the male's.  The male was apparently restricted, in handling the female, to that part of her body above the waist.
   Section 229D provides:

   "meaning of 'sexual act'

   (1)A person engages in a 'sexual act' if the person  -

   (a)allows a sexual act to be done to the person's body;  or

   (b)does a sexual act to the person's own body or the body of another person;  or

   (c)otherwise engages in an act of an indecent nature with another person.

   (2)Sub-section (1) -

   (a)applies equally to males and females;  and

   (b)is not limited to sexual intercourse or acts involving physical contact."

Despite its heading the section does not define "sexual act" but uses that term to define what constitutes engaging in a sexual act.  The way in which it does this leads to some uncertainty.
           The appellant criticised the learned Trial Judge's direction to the jury that:

(a)it was for them to decide whether a body slide fitted within the ordinary meaning, as they understood it, of a sexual act;  and

(b)a question of indecency, or whether the act was indecent, did not come into it.

It was submitted that "sexual act" in s.229D meant ambiguously an act involving the sexual organ of one of the participants or an act having an indecent character. On either view, it was submitted, the direction was wrong.
           There is nothing in the section or in its context which would justify the limitation sought to be placed upon the meaning of "sexual act" by the first alternative submission.  It is not difficult to imagine other parts of the body, for example the female's breasts, which the section might be intended to include.  In the absence of more specific guidance in the section it was appropriate for the learned Trial Judge to leave to the jury, without further guidance as he did, the question whether the act described came within the ordinary meaning of a sexual act.
           The second alternative submission was that the word "otherwise" in sub‑s.(1)(c) limits "sexual acts" in sub-para.(a) and (b) to acts of an indecent nature.  There is some semantic support for that contention.  The use of the word "otherwise" in that context would ordinarily presuppose that what was described in paras.(a) and (b) were acts of an indecent nature.  Yet plainly paras.(a) and (b) are intended to include acts, such as sexual intercourse between consenting adults in private, which are not intrinsically of an indecent nature.  Otherwise sexual intercourse for money would not be prostitution, a result which the legislation could not possibly have intended.
           A more sensible construction is to construe the phrase "otherwise engages in an act" in para.(c) to mean engages in an act other than one of the kinds specified in paras.(a) and (b);  so that, by para.(c), a person engages in an act of a sexual nature by engaging in an act of an indecent nature with another person notwithstanding that that act does not involve either allowing a sexual act to be done to that person's body or doing a sexual act to that person's body or doing a sexual act to the body of another person.  Sub-section (2)(b) may widen the ambit of sub-s.(1)(c) even further by removing the need for physical contact whether or not that physical contact comes within the descriptions in sub-s.(1)(a) or (b).
On that construction, which I would adopt, the jury were entitled to conclude that a body slide was a sexual act within the meaning of s.229D. Indeed it is difficult to see how they could have concluded otherwise. And the learned Trial Judge was correct in directing them that, in determining that question, it was not relevant whether the act was indecent.

1. Whether a genuine belief that the acts were not sexual acts constitutes  reasonable excuse.

The second of the appellant's propositions was that the phrase "without reasonable excuse" in s.229I requires consideration of a genuine belief by the alleged offender that the act committed was not an unlawful act.  It is true that a ruling by the Trial Judge before the appellants were called upon precluded the consideration of that question.  And in the course of his directions to the jury his Honour said that a belief by either appellant that what they were doing was not wrong was irrelevant.
           The reasonable excuse to which s.229I refers is a reasonable excuse for being found in or leaving after having been in a place suspected on reasonable grounds of being used for the purpose of prostitution.  Reasonable excuse thus appears to be related to the degree of involvement in the purpose of prostitution.  For example, a person whose purpose in being in such a place was unrelated to the purpose of prostitution would have a reasonable excuse for being there.
           To construe the phrase "reasonable excuse" as, additionally, including ignorance of or mistake in law would require a conclusion that that phrase has, by implication, added to the defences available under Chapter 5 of the Criminal Code;  for, except where the mistake relates to property, ignorance or mistake of law is not, by that Chapter, made a defence.  Such a conclusion should not be reached if some other sensible construction can be given to the phrase.  As can be seen from what I have said such a construction can be given without such an unlikely implication.
           His Honour's ruling and discretion on this question were therefore correct.

1. Whether two or more prostitutes must be engaged in prostitution contemporaneously with the presence of the person at the place.

The final proposition advanced by the appellant is that, at the time a person is found in the place there must be a reasonably based suspicion that two or more prostitutes are engaging in a sexual act;  that is that the engagement in sexual acts by two or more prostitutes must be contemporaneous with the presence of the person.   The learned Trial Judge's ruling and direction that it was sufficient, in effect, if there was a suspicion on reasonable grounds that the premises were actually used by two or more prostitutes to engage in acts of prostitution either at the same time or at different times, it was submitted, were wrong.
           The construction contended for is not the natural meaning of the section which accords with his Honour's ruling and direction.  Nor is there anything in the context of Chapter 22A which would require the implication of such a limitation upon the natural meaning of the section.  On the contrary the chapter is concerned, not just with identifiable acts of prostitution but with the course of conduct of prostitution upon premises.  Cf. Armstrong (unreported C.A. No. 518 of 1994, No. 543 of 1994, No. 544 of 1994 and No. 106 of 1995 delivered on 7 April 1995).  His Honour's ruling and direction in this respect were correct.
           The appeals must therefore be dismissed.