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Queensland Judgments
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  • Unreported Judgment

Pyatt v Cheah

 

[2019] QMC 18

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Pyatt v Cheah [2019] QMC 18

PARTIES:

Detective Senior Constable Matthew Stephen Pyatt

(Applicant)

v

Chye Jean Cheah

(Defendant/Respondent)

FILE NO/S:

Southport 1421/19

DIVISION:

Magistrates Courts

PROCEEDING:

Civil – Miscellaneous Originating Application

ORIGINATING COURT:

Southport

DELIVERED ON:

05 December 2019

DELIVERED AT:

Southport

HEARING DATE:

14 November 2019

MAGISTRATE:

J J Costanzo

ORDER:

TEMPORARY DECLARATION OF PROHIBITED BROTHEL

I make an ORDER pursuant to section 66A (1)(a) of the Prostitution Act 1999 DECLARING that the premises situated at 18/34 Dominions Road, Ashmore, in the State of Queensland, is a ‘prohibited brothel’.

This Temporary declaration is made for a specified period, namely: until 11 December 2019 when I will deliver my Reasons for Judgement, if not sooner. The Application for a Final Order is adjourned to the 11 December 2019, at 9 a.m.

CATCHWORDS:

Prostitution – Whether joint applications for both temporary declaration and final declaration of premises to be a prohibited brothel can be made together in one document.

Prostitution – Temporary Declaration of premises to be a prohibited brothel – Meaning of ‘Prohibited Brothel’ – Exercise of discretion – Standard of proof on the balance of probabilities

Acts Interpretation Act 1954, ss 14A, 32C, 32CA.

Prostitution Act 1999, ss 65, 66, 66A, 67, 71.

CASES CITED IN THIS JUDGEMENT:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334.

MAN v MAM [2003] QDC 398.

Prostitution Licensing Authority v Neilson [2010] QCA 159.

Rejfek v McElroy (1965) 112 CLR 517; [1966] ALR 270.

SOLICITORS:

Sargent Wang for the Applicant Police Officer

Mr Gatenby, Solicitior for the Defendant

REASONS FOR JUDGEMENT

  1. [1]
    On 14 November 2019 I made a ‘temporary declaration’ pursuant to s 66A(1)(a) of the Prostitution Act 1999 (the Act) declaring that the premises situated at 18/34 Dominions Road, Ashmore, in the State of Queensland, is a ‘prohibited brothel’.
  1. [2]
    Pursuant to s 66A(2) of the Act I made the temporary declaration for a specified period, until 11 December 2019, when I would deliver my Reasons for Judgment, if not sooner. The Application for a Final Order was adjourned to 11 December 2019, at 9 a.m.
  1. [3]
    I now publish herein those reasons for judgment. 

The Application

  1. [4]
    The inelegantly drafted Originating Application, filed in the Magistrates Court at Southport on 29 October 2019, gave notice to the respondent that the applicant was applying to the court for the following orders:
  1. A temporary declaration under section 66A(1) of the Prostitution Act 1999 that 18/34 Dominions Road, Ashmore to be (sic) a prohibited brothel.
  2. A section 66 declaration under s 66(1) (or s 66(2)) of the Prostitution Act 1999 that 18/34 Dominions Road, Ashmore to be (sic) a prohibited brothel.

Threshold issue raised on strike out application

  1. [5]
    Mr Gatenby, for the respondent, raised a threshold issue. The respondent sought to have the application struck out, submitting firstly that the application lacks particulars and, secondly, that s 65 of the Act does not permit the two applications to be made at the same time.

Relevant law about threshold issue

  1. [6]
    In Part 5 (Prohibited Brothels), section 65 of the Act provides:

“65 Application to Magistrates Court

  1. A police officer, the Authority or an authorised officer of the relevant local government may apply to a Magistrates Court for an order under section 66 (section 66 declaration) or 66A (temporary declaration) declaring that particular premises are a prohibited brothel.
  2. An application for a temporary declaration may be made—
  1. (a)
    before a proceeding for a section 66 declaration is started; or
  2. (b)
    before a proceeding for a section 66 declaration ends.
  1. An application by a police officer for a temporary declaration may also be made to a magistrate
  1. If an application is made under subsection (3), the Police Powers and Responsibilities Act 2000, sections 800 to 802 apply to a temporary declaration as if it were a prescribed authority under those sections.”
  1. [7]
    Mr Gatenby did not advance any case law and/or any statutory authority in support of his proposition that s 65 does not permit the two applications to be made at the same time.

Consideration of threshold issues

  1. [8]
    Because I have already previously ruled on this issue before proceeding to hear and determine the substantive application it may be prudent to also set out my reasons for refusing to strike out that application. The following paragraphs under this heading go a little further that what I stated on the record as my reasons for refusing to strike out the application, but only in so far as they are relevant to, and part of, my determination of the substantive application for the temporary declaration dealt with below.
  1. [9]
    The thrust of Mr Gatenby’s submission was that the wording in s 65(1) is restrictive and permits only an application for either an order under s 66 or s 66A, even though the word “either” is not used in the subsection. Furthermore, it seemed to be his submission that s 65(2) permits only one application to be made at one time, due to the use of the word “or” between paragraphs (a) and (b), and because the application for the temporary declaration was not made before a proceeding for a section 66 declaration had started or before such a proceeding had ended.
  1. [10]
    Sergeant Wang submitted the Act envisages each application being made and that the temporary declaration was sought in case the application for the final order was not finalised on the return date.
  1. [11]
    It is logical to assume that the respondent could either consent to a final order under s 66 on the return date or, as happened here, that the respondent may seek an adjournment of the application for the final order.
  1. [12]
    I referred Mr Gatenby to s 32C of the Acts Interpretation Act 1954, which states:

“32C Number

In an Act—

  1. words in the singular include the plural; and
  2. words in the plural include the singular.”
  1. [13]
    I noted that section 32C does not come with a rider or predicate to the effect that the section must be read subject to any contrary intention appearing in another Act.
  1. [14]
    Mr Gatenby conceded, correctly in my view, that in 65(1), the use of the phrase “an order” can be read in the singular and in the plural form, but he maintained his other objections.
  1. [15]
    Under s 14A of the Acts Interpretation Act 1954 (AIA), in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.  That rule of interpretation does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act.  Subsection (3) specifically states that this rule applies to any Act passed after 30 June 1991 despite any presumption or rule of interpretation such as a rule that particular legislation is to be interpreted strictly and in favour of one party to the proceedings.
  1. [16]
    The Prostitution Act does not collate into one section the specific purposes of the Act, but states in general terms in s 3 (Purpose) that “The purpose of this Act is to regulate prostitution in Queensland.”
  1. [17]
    Common sense would seem to dictate that prostitution in Queensland would be unregulated if prohibited unlicensed brothels were permitted to operate or continue to operate with impunity and contrary to specific compliance and regulatory provisions of the Act and Prostitution Regulation 2014.
  1. [18]
    In Prostitution Licensing Authority v Neilson [2010] QCA 159, at [4] to [6], the Court of Appeal (McMurdo P, Holmes and Muir JJA) summarised the regulatory scheme in the Act:

“[4] Part 3, Division 1 of the Prostitution Act sets up a licensing system for brothels. It provides, in Sub-division 1, for the granting of a brothel license to a “suitable person”. Section 17 sets out the matters relevant in deciding whether a prospective licensee is suitable; they include whether the person is of good character, has adequate financial resources to ensure the brothel’s viability, will put arrangements in place to ensure the safety of the persons employed in providing prostitution, and has a transparent business structure for the brothel’s operation which enables all his or her associates to be readily identified. Section 19 concerns the licence issued; it is a personal one and authorises operation of the brothel only at specified premises, subject to the Sustainable Planning Act 2009 (Qld).

[5] Sub-division 2 in the same Part of the Act deals with licence cancellation and disciplinary action. Section 26 enables the Authority to conduct a disciplinary inquiry to decide whether there are grounds to take action against a licensee, while s 29(2) confers power on it to take disciplinary action once satisfied there are grounds to do so. The grounds for taking disciplinary action are set out in s 27, and include the fact that the licensee has been charged with or convicted of an offence. (No statutory criteria are provided for the exercise of the discretion as to whether to take action against the licensee, but it was common ground in the present case that it was to be exercised with reference to the public interest.) Section 30 limits the disciplinary action which may be taken where a licensee has been charged with an offence to suspension of the licence for no longer than one year. That suspension must be removed immediately if the charge is withdrawn or the licensee is not convicted of the offence. A licensee convicted of a “disqualifying” offence (an offence of a kind specified by schedule 4 to the Act, including prostitution offences) automatically has his or her licence cancelled.

[6] Offence provisions in Part 6 of the Act are directed to ensuring public health, safety and convenience in connection with the provision of prostitution services. Soliciting for prostitution must not occur other than in a licensed brothel. No more than 13 persons may work in a brothel, and licensed brothels must at all times be personally supervised by the licensee or a manager approved under the Act. It is an offence for a prostitute to provide sexual intercourse without a prophylactic, or for a person who has a sexually transmitted disease to work or be permitted to work as a prostitute while infectious.”

  1. [19]
    At [18] the Court of Appeal held:

"[18] The policy of the Prostitution Act is to promote the public interest by ensuring that brothels are safe and lawful. It does so by requiring that they be run by persons of good character, from appropriate premises, in operations which ensure the safety of the employees and the clients, are financially sound and involve business arrangements which are readily scrutinised. … . The fact that the Act (not surprisingly) recognises that concerns about management may of themselves be such as to make licence suspension desirable does not negate, but rather reinforces, the relevance of the standard of the brothel’s management in considering the public interest.”

  1. [20]
    I can glean from Part 5 (Prohibited Brothels) that a further purpose of the Act is to prevent premises from being operated as a prohibited brothel.  To do so, for a final order under s 66, the magistrates court must be satisfied, on the balance of probabilities, that the premises is now, or was on a stated day, a prohibited brothel because a person is or was operating the brothel without a licence under the Act, or in contravention of the Planning Act 2016 or the repealed Sustainable Planning Act 2009
  1. [21]
    For a temporary declaration under s 66A the magistrate must be satisfied, on the balance of probabilities, that there is a likelihood the premises will be a brothel because either a person will operate a brothel without a licence at the premises, or because the premises will be used for a brothel in contravention of the Planning Act. The applicant alleges the former.
  1. [22]
    Relevantly, the making of a declaration must be published (final orders) and/or notified to the occupier, owner and others (final and temporary declarations). Then ss 68 to 70 create various offences:
  • Interfering with a copy of a declaration posted up on a prohibited brothel by covering, removing, defacing or destroying it carries a maximum penalty of 60 penalty units or 6 months imprisonment (s 68).
  • A person found in or entering or leaving a prohibited brothel faces a maximum penalty of 60 penalty units or 1 year’s imprisonment. There are exceptions for owners and occupiers who are there pursuant to a court order or for another lawful purpose. (s 69)
  • If a prohibited brothel is used as a brothel at any time after notice of the making of the declaration is given under section 67(1)(b)(i) or (ii) and while the declaration is in force, the occupier, and if the occupier is not the owner of the premises, the owner each commit an offence carrying a maximum penalty of 200 penalty units or 3 years imprisonment.
  1. [23]
    Due to the possible penalties which can be imposed on such offenders I accepted that the Briginshaw test must be applied before I can make any findings under the Act on the balance of probabilities.[1] I have applied this test throughout this judgment. This approach is consistent with the overturning of the rule that some legislation is to be interpreted strictly and in favour of one party to the proceedings (see s 14A of the AIA).
  1. [24]
    I also take into account that pursuant to the AIA, s 32CA (Meaning of may and must etc.) the word ‘may’, or a similar word or expression, used in any Act in relation to a power indicates that the power may be exercised or not exercised, at discretion, and that the word ‘must’, or a similar word or expression, indicates that the power is required to be exercised.

The ruling

  1. [25]
    On 14 November I observed that the originating application can be viewed, technically, as making the two applications sequentially. First it applies for the temporary declaration under section 66A(1) of the Act and then it applies for a final section 66 declaration under s 66(1) (or s 66(2)) of the Act. That would be enough to say the application for the temporary declaration was made before the application for a section 66 declaration was started, as per section 65(2)(a).
  1. [26]
    However, even without that interpretation, a purposive and plain English reading of the sections tells me that they do not require two separate applications to be made on separate pieces of paper, or Forms. They do not even require a particular Form or format. The Act makes no reference anywhere to the Justices Act 1886 or to the Uniform Civil Procedure Rules 1999, let alone needing to adopt any procedures under any such provisions. 
  1. [27]
    There is a requirement that a respondent must have notice of a s 66 application at least 72 hours before the return date. (s 66(3)) On the other hand, for an application for a temporary declaration under s 66A I can make the declaration only if I am satisfied that the applicant has made a reasonable attempt to notify the owner or occupier of the premises of the making of the application. Also, if it is a police officer who is making the s 66A application for a temporary declaration, the application may also be made to a magistrate, as opposed to the magistrates court.
  1. [28]
    There are no other procedural prerequisites.
  1. [29]
    For all these reasons I ruled that the application was validly brought.
  1. [30]
    I also ruled that the respondent was given sufficient particulars in support of the applications. This point was not pressed with any vigour. The particulars are clearly contained and detailed in the Applicant’s own affidavit containing exhibits “A” to “V” and supporting affidavits which were all filed at court on 29 October 2019 and served on the respondent on 5 November, 9 days before the return date.
  1. [31]
    Consequently, I refused the application to strike out the Originating Applications.

SUBSTANTIVE APPLICATION FOR A TEMPORARY DECLARATION

  1. [32]
    Section 66A of the Act states:

“66A Temporary declaration that premises are prohibited brothel

  1. The issuer may declare premises to be a prohibited brothel if it is satisfied, on the balance of probabilities, there is a likelihood the premises will be a brothel because—
  1. (a)
    a person will operate a brothel without a licence at the premises; or
  1. (b)
    the premises will be used for a brothel in contravention of the Planning Act.
  1. The issuer may make the declaration for a specified period, but may extend the declaration from time to time until a section 66 declaration is made or an application for a section 66 declaration for the premises is withdrawn or dismissed.
  2. The issuer may make the declaration only if it is satisfied that the applicant has made a reasonable attempt to notify the owner or occupier of the premises of the making of the application.
  3. In considering the application, the issuer may inform itself in any way it considers appropriate and is not bound by rules or practice about evidence.
  4. In this section—
  5. issuer means—
    1. (a)
      for an application made to the court under section 65(1), the court; or
    2. (b)
      for an application made to a magistrate under section 65(3), the magistrate.
  1. [33]
    Section 71 of the Act provides:

“71 Rescission of declaration

  1. The following persons may apply to the court for an order rescinding the declaration—
  1. (a)
    the owner, occupier, or a registered mortgagee of the premises declared to be a prohibited brothel;
  1. (b)
    a police officer;
  1. (c)
    the Authority;
  1. (d)
    an authorised officer of the relevant local government.
  1. The court may rescind the declaration on any terms it considers appropriate, which may include the giving of security to ensure that the premises are not again used for a brothel without a brothel licence.
  1. The court may rescind a declaration only if it is satisfied that, at least 72 hours before the hearing, notice of the application was given to each of the following—
  1. a police officer of at least the rank of inspector stationed within the police district in which the declared premises are situated;
  2. the Authority;
  3. the relevant local government.”
  1. [34]
    Mr Gatenby has foreshadowed he may receive instructions to bring an application under s 71 to rescind the temporary declaration. I merely mention this because in fairness to the parties I have endeavoured to publish these reasons before any such application, or for that matter the application for a final order under s 66, is heard. Each party’s conduct of such proceedings would benefit by having these reasons in advance.
  1. [35]
    Since first drafting these reasons, an application under s 71 to rescind the temporary declaration has been filed with the court for hearing (being a first return date) on 11 December 2019 at 10 a.m.
  1. [36]
    Mr Gatenby has also indicated that for the hearing of the s 66 application for a final order he will require the witnesses Pyatt, and Rassmussen and/or Smith.
  1. [37]
    Returning therefore to the substantive application for a temporary declaration, the matter was determined on the papers, and after taking submissions from each party.
  1. [38]
    I have read and considered:
  1. [39]
    The Affidavit of Matthew Stephen PYATT, the applicant, sworn 28 October, filed on 29 October 2019, and the documents exhibited thereto from exhibit “A” to “V”.
  1. [40]
    The Affidavit of Darren Ross SMITH, Forensic Scientist, affirmed on 17 October, filed on 29 October 2019, who merely reviewed the examinations conducted by Sergeant Wayne RASMUSSEN of the Gold Coast Scientific Section, which explains why Rasmussen should be called at the next hearing.
  1. [41]
    The Affidavit of Darren John KERRISON, a Law Enforcement Participant, sworn or affirmed on 16 October, filed on 29 October 2019.
  1. [42]
    The Affidavit of Nathan GARTNER, a Law Enforcement Participant, sworn on 15 October, filed on 29 October 2019.

Relevant law and definitions

  1. [43]
    Pursuant to s 66A (quoted above) I can make a temporary declaration that the nominated premises is a prohibited brothel if I am satisfied, on the balance of probabilities,[2] that there is a likelihood the premises will be a brothel because either—
  1. (a)
    A person will operate a brothel without a licence at the premises; or
  1. (b)
    The premises will be used for a brothel in contravention of the Planning Act.
  1. [44]
    The applicant relies only on ground (a).
  1. [45]
    Subsection 66A(3) provides that I may make the temporary declaration only if I am satisfied that the applicant has made a reasonable attempt to notify the owner or occupier of the premises of the making of the application. I am so satisfied. As stated above, the Originating Application and each affidavit were served on the respondent on 5 November, 2019.
  1. [46]
    Subsection 66A(4) provides that in considering the application, I may inform myself in any way I consider appropriate and that I am not bound by rules or practice about evidence. For example, the parties agreed I could determine the application for a temporary declaration on the papers including the hearsay affidavit of Smith. However, questions of weight may arise when it comes to considering the value and reliability of that evidence.
  1. [47]
    For the purposes of the Act, and the sections relevant to this determination, some definitions appear in Schedule 4 (Dictionary) of the Act.  Relevantly, the words in bold type are given specific meanings, except for the definition of ‘engage’ which is inclusory:
  • brothel means premises made available for prostitution by 2 or more prostitutes at the premises.
  • brothel licence means a licence granted under this Act authorising a person to operate a brothel at premises stated in the licence.
  • engage, a person, includes appoint, employ, promote, redeploy or second the person within or to the office.
  • licence means brothel licence.
  • licensed brothel means premises stated in a licensee’s licence as the premises used for the business of providing prostitution.
  • licensee means a person who holds a brothel licence that is in force.
  • operate a brothel means to carry on the business of providing prostitution at the brothel.
  • prostitution see the Criminal Code, section 229E.
  1. [48]
    In the Criminal Code, s 229E provides:

“229E Meaning of prostitution

  1. A person engages in prostitution if the person engages, or offers to engage, in the provision to another person, under an arrangement of a commercial character, of any of the following activities—
  1. (a)
    sexual intercourse;
  2. (b)
    masturbation;
  3. (c)
    oral sex;
  1. (d)
    any activity, other than sexual intercourse, masturbation or oral sex, that involves the use of 1 person by another for his or her sexual satisfaction involving physical contact.
  1. However, a person does not engage in prostitution if—
  1. (a)
    the activity is an activity mentioned in subsection (1)(d); and
  2. (b)
    the person is providing adult entertainment under an adult entertainment permit and is an adult and is not a person with an impairment of the mind; and
  3. (c)
    the activity is authorised under the permit.
  1. Subsection (1) applies equally to males and females.
  2. It does not matter, in relation to an arrangement for the provision of an activity mentioned in subsection (1)(a), (b), (c) or (d), whether—
  1. (a)
    the arrangement is initiated with the person engaging in the provision of the activity or a third person; or
  2. (b)
    the pecuniary or other reward under the arrangement is to be received by the person engaging in the provision of the activity or a third person.”
  1. [49]
    I have made all findings below on the balance of probabilities and to a very high degree of satisfaction. 

Likelihood

  1. [50]
    I accept Mr Gatenby’s submission (which is not contested) that the likelihood the premises will be a brothel because a person will operate a brothel without a licence at the premises must be a real likelihood.
  1. [51]
    This is a test which has received judicial attention and interpretation in similar and in different contexts. I find it helpful to refer to the same test in s 20 of the now repealed Domestic and Family Violence Protection Act 1989.
  1. [52]
    Under that repealed Act, section 20, the court was required to be satisfied that the respondent had committed an act of domestic violence against an aggrieved person (and that a domestic relationship existed between the 2 persons) and that the respondent was likely to commit an act of domestic violence again or, when the act of domestic violence was a threat, that the respondent was likely to carry out the threat.
  1. [53]
    In relation to section 20 of the repealed Act, in MAN v MAM [2003] QDC 398 at [20] McGill DCJ held that:
  1. [54]
    ‘Likely’ in my view does not in the statute mean more probable than not, but it must at least involve a real, not remote likelihood, something more probable than a mere chance or risk. (my underlining)
  1. [55]
    His Honour went on to say:

“The Magistrate ought to have been considering whether the evidence indicated that there was some real, significant likelihood that the respondent spouse would commit an act of domestic violence in the future.” (my underlining)

  1. [56]
    The test I have applied, therefore, is whether there is presently a real and significant likelihood, and not a mere remote or fanciful risk, that the nominated premises will be a brothel because the respondent will operate a brothel there without a licence. There needs to be more than some mere speculation or fanciful conjecture. The assessment of the evidence must establish that there is a very real likelihood of continued unlicensed brothel-keeping at the premises if no temporary declaration is made.
  1. [57]
    I also take into account that the affidavit evidence, including both first hand and hearsay evidence, has not yet been tested. As well as the scientific evidence being hearsay there is also the hearsay evidence of Pyatt at [17], [18] that members of the public or ‘witnesses in the area’ have reported to police that male patrons tend to come and go from the premises at all hours, that some stay for only 15 to 30 minutes, that they park away from the premises despite there being ample parking at the front and rear of the premises as can be seen in the photographic exhibits, and that they have seen females standing outside the premises appearing to be wearing provocative clothing (such as short skirts, or shorts and tight singlets), who also call out to male persons passing by in an attempt to lure them inside, and one time that a woman was seen to lift her skirt to a male person who was leaving the premises. Pyatt does not state how many witnesses there are or whether they have all provided statements, or if they are willing to testify. This hearsay evidence is too remote to carry any probative weight and, in the end, I have disregarded it.
  1. [58]
    One such witness may be Mr Patel who parked his vehicle across the road and was intercepted after being in the premises for only 24 minutes. He told police that he was told by his friend that he could get ‘hand jobs’ and ‘blow jobs’ in the premises. This evidence is, of course, hearsay upon hearsay. Patel also claimed he was offered ‘extra services’ by way of a ‘hand job’.
  1. [59]
    The scientific evidence by Darren Ross Smith, as it stands, is also hearsay evidence, but it may be more reliable than, for example, the evidence about Patel. This is particularly so, as the forensic evidence can be shown to be obtained wholly from the electronic notes (records) made by Sergeant Wayne Rasmussen who actually conducted the forensic examination of the premises. Smith sates he reviewed the examination conducted by Rasmussen but he did not attend the premises. Therefore, Rasmussen may be required for any further hearing.
  1. [60]
    Suffice it to say, Rasmussen recorded finding presumptive ‘representative’ evidence of semen staining in nine locations in the premises including—
  • Four areas on the wall and/or flooring of the rearmost massage room.
  • One area each on the wall and/or flooring of the other three massage rooms.
  • On the splashback and vanity in a room containing a towel drying rack, which is a room adjacent to the toilet.
  • On a ‘representative’ wet hand towel from the drying rack.
  1. [61]
    At this stage, none of the samples have been sent to a laboratory for confirmatory testing
  1. [62]
    In the absence of any inherent or external reason to doubt the veracity of all the hearsay evidence I can accept it for the purposes of a hearing on the papers. This is permitted under section 66A(4). I consider it is appropriate and I am not bound by rules or practice about evidence. However, I will treat the evidence with caution and see what weight, if any, can be given to it. To do that I can consider whether there is other evidence from which, taken in its entirety and together with the hearsay evidence, reasonable inferences can be drawn and conclusions reached about the activities taking place at the subject premises.

Other (and direct) evidence

  1. [63]
    The other evidence contained in the affidavits and exhibits, and obtained as part of Operation Romeo Bailie, can be grouped into—
  1. Evidence about the premises,
  2. Evidence about the occupants and workers,
  3. Evidence about the operation of the business,
  4. Evidence about advertising and customer contact, and
  5. Evidence about admissions and incriminating conduct.

Evidence about the premises

  1. [64]
    The business is called Body Back and Feet Massage. The business is located in the two-level shopping complex called Dominion House and is situated at 18/34 Dominions Road, Ashmore. It is one of approximately 20 similar sized shop fronts.
  1. [65]
    There is a large black and red sign at the top of the shop front which simply reads “MASSAGE”.
  1. [66]
    There was no washing machine or dryer in the premises. Police found ‘extremely dirty’ towels on racks ‘near the sink in the toilet’. They appeared to be used. The toilet was dirty and uncleaned. There was no shower.
  1. [67]
    The massage rooms depicted in police photographs look dirty and squalid.
  1. [68]
    At the bottom of a list of apparent operating instructions on an A4 sheet stuck on the locker doors it read: “Delete messages from phone.” It is reasonable to infer in all the circumstances that the management, including Ms Cheah, knew that the phone messages would be incriminating.
  1. [69]
    In one room a conversation with a naked man was fruitless when he only nodded his head or shrugged his shoulders.
  1. [70]
    Pyatt States that on 13 and 25 September 2019 a drive-by showed the MASSAGE premises was still open.

Evidence about the occupants and workers

  1. [71]
    The respondent is a 37 year old woman who was born in Malaysia.
  1. [72]
    When a search warrant was executed there on 6 September 2019, two female workers were present. They were born in 1989 and 1991. They were born in Chile and Colombia. Each had limited command of the English language.
  1. [73]
    The advertisements referred to below contain no reference to any of the staff members having any massage qualifications. Given the implicit turnover of staff to keep offering new young women to the potential clientele, nor was it likely they would all have any such qualifications. Nor is there any evidence of certificates or other evidence of qualifications being placed on desks or on walls in the premises.
  1. [74]
    The women were advertised as being young, attractive and of many nationalities in ways which were suggestive that more than a straight massage could be obtained. It also seemed to be a key lure to advertise the fact some of the workers were new.

Evidence about the operation of the business

  1. [75]
    The respondent is the registered owner of shop 18.
  1. [76]
    When a search warrant was executed there on 6 September 2019, the respondent identified herself as the shop owner.
  1. [77]
    There is no dispute that the Prostitution Licensing Authority has not licensed the premises to be a licensed brothel. A section 132(5) certificate issued under the Act by the Executive Director of the Authority states a licence has never been in force for the respondent and a licence has never been in force for the premises.
  1. [78]
    There was no contest that the phones seized when the search warrant was executed had phone numbers connected to the business and to the advertisements referred to below.

Evidence about advertising and customer contact

  1. [79]
    Advertisements for this massage business or service were located by police in various internet sites including web sites named ‘Locanto’ and ‘Cracker Bee’.
  1. [80]
    These advertisements advertise the girls, their youth, their looks, their newness and their nationalities much more than they advertise their massage service.
  1. [81]
    References to the massage style being offered are obtuse and lean toward sexual innuendo. For example:

Wed 4 Sept 2019 Ex C: Locanto web page

At the top of the page there is a photo of a bikini clad girl on a beach.

The first two lines read “New girl today !!” and “Real photo and young”.

It is then stated that they are available at almost any time. Then:

“Pretty ladies who will give you pampering from Brazil Philippine Thailand Colombia Taiwan Russian & Chile”, and

“Aussie chick available”

Only then does the advertisement mention:

“Come and try a relaxation massage whole body with beautiful professional therapy.“

There is no mention of the qualifications of any masseuse or style of massage other than “relaxation”.

Then there is information about the rooms, parking and prices and reference to offering a non-descript “duo special”.

Wed 4 Sept 2019 Ex D: Locanto internet page

This other advertisement in the same place, on the same day, is almost the same and adds, suggestively “let our hands rub every inch of your body.”

Thurs 5 Sept 2019 Ex E: Cracker Bee internet page

This advertisement begins with “new girl arrive“ and adds “We are more than Asian.”

“All international well trained from … (insert names various nations)” and that “full body aroma oil is the best for relaxing massage take out your stress relief. Magic hands touch.”

The advertisement is accompanied by photos of cleavage and high rise bikini bottoms.

  1. [82]
    There is no sign of qualifications, certificates or licences to be seen anywhere.
  1. [83]
    The evidence also refers to incriminating text messaging.
  1. [84]
    Several potential customers asked: "Rub & Tug?”. One reply reads: “Whole body. Every part your body” instead of a simple firm ‘NO’, therefore leaving open the possibility. No-one seems to have been interested to know what style of massage they specialized in or what type of qualifications or licences they held at the premises.
  1. [85]
    Some text messages refer to new girls being available. Variety may well be the spice of life but is it really necessary in order to receive a real and legitimate massage? It might be more logical to assume that if one were after a legitimate massage then having a regular and legitimate massage therapist would be more advantageous.
  1. [86]
    However, I note that the mere fact some people ask for “hand relief” or “BJ” or “body to body” by itself says nothing about the reputation of the place, nor that the respondent and her staff are willing to provide those ‘services’.
  1. [87]
    Some messaging contains photos of the girls. They are the same and similar to the photos on the advertising web sites referred to above. Not one states any qualifications. As well as potentially genuine references like someone being able to give a “strong massage” and other references to relaxation and massage, there is much innuendo in the outgoing messaging implying sexual services would be available from several women (as it was also implied on the day the search warrant was executed when three women were present, including the respondent herself). Five examples follow:
  • “Hi new young attractive Aussie are you interested? Naughty babe.”
  • “Come to have good time with me.”
  • “Today we have new girl from chile do you want come and try?”
  • “This girl uni student. You will like it.“
  • “Hi. Still looking for nice sexy rub?”

Evidence about admissions and incriminating conduct

  1. [88]
    On 6 September 2019 a Detective Acting Inspector authorised a ‘controlled activity’ for two undercover law enforcement participants to seek unlawful prostitution services at the subject premises.
  1. [89]
    The attempts at entrapment which followed are set out in the affidavits of the two Law Enforcement Participants. One was partly successful. The other was not.
  1. [90]
    There is evidence of two possible admissions by the respondent.
  1. [91]
    Firstly, Nathan Gartner entered the premises on 6 September 2019.  During his conversation with the respondent, who said “We don’t have sex in here. No sex sorry.”

Gartner asked her: “How much for extra?”

The respondent replied “Massage first.”

He said “how much extra for hand job? Hand job. How much?”

The respondent replied “twenty.”

He said: “$20 for hand job” and the respondent confirmed it before he placed $60 down in front of her.

  1. [92]
    I have listened to the recording of the undercover conversation between Gartner and the respondent. Before and after the police declared and revealed their true identity and purpose, and executed the search warrant, it became clear to me that English is not the respondent’s first language and that her command of the spoken language is limited.  Even taking into account that I did not have the benefit of actually seeing her, having only the audio recording, the respondent seemed to understand English better than she was able to speak it.
  1. [93]
    The officer persisted more directly and asked the price for a ‘hand job’. Although she said there was no sex offered there (perhaps meaning sexual intercourse), the respondent said $20. Gartner confirmed the price and Cheah left the room. On her return he paid the respondent $60. He declared who he really was and then entered a room in which a male person lay naked in the presence of a female person.
  1. [94]
    Pyatt then entered and executed a search warrant with three other police officers. He recorded what followed in audio only. They seized an Apple iPhone and an Alcatel mobile phone. There is ample evidence linking the phones to the premises, to the respondent and to the advertising. This was not challenged.
  1. [95]
    Secondly, again taking into account that the evidence is not challenged or subjected to cross-examination, the Applicant Pyatt states at paragraph [58] of his Affidavit that after the search warrant was executed he asked the respondent to accompany him outside while photographs were taken inside the premises. Cheah said words to the effect: “So you issue me with fine? What can I do? Customers want this kind of service, so we give it.”
  1. [96]
    There is no video recording (e.g. by body-worn camera or otherwise) nor audio recording of this conversation.  Given the nature of his work in this matter specifically (to gather incriminating evidence, including admissions, about illegal prostitution), and his role in the Major and Organised Crime Squad generally, it would have been more than prudent to record everything from start to finish. In comparison with Gartner’s audio recording inside the premises, the court is deprived of the opportunity to at least assess the actual words spoken outside of the premises. This was not an emergent search. It was not a fast developing situation. It was a planned operation. I would be extremely surprised to find any police officer in Queensland who was not aware that people with whom they speak sometimes make incriminating statements when there is no recorder in sight. It has become clear to me during my 19.75 years as a Magistrate that there are still officers in the Queensland Police Service who are yet to learn that when police bear an onus of proof then something they allege to be true is not necessarily true (let alone accurate) just because a police officer says it is, otherwise there would be no need for courts and we would all live in a police state. We don’t. The applicant potentially maintains some personal credibility in saying the words quoted above are “words to the effect”.  However, that is not the same as having the actual words, which may be subject to individual and contextual interpretation. Nor has this conversation been noted contemporaneously in an official police notebook, or elsewhere, and shown to the respondent to see if she would adopt it verbally or by signing the notes. One cannot merely assume the respondent would not have adopted it just because of language barriers. Interpreters could also be made available. In fact, the police offered to obtain an interpreter for the respondent, but in the audio I heard they seem to have glossed over it and quickly dismissed the need to bring in an interpreter.
  1. [97]
    If paragraph [58] of Pyatt’s affidavit was the only evidence of any form of admission I would have disregarded it outright as having no probative weight. I initially considered the evidence to see if it corroborates what is heard on the recording taken inside the premises by Gartner. Not having the actual words spoken, and not being fully in context, I cannot be certain about what the respondent actually said, nor what she meant by the words “this kind of service” even if those were the words actually spoken. As it is, this evidence of an alleged admission has some slight probative weight, so I have considered it, but it has not influenced my decision, at all. In the end I decided that its prejudicial value greatly outweighs its probative weight and it is disregarded.

Conclusions

  1. [98]
    The mere fact that Ms Cheah said “we don’t do sex here” does not mean that she does not deliver or procure the delivery of sexual services which are within the meaning of ‘prostitution” under the Act.  However, there is no suggestion anywhere in the evidence that sexual intercourse was ever offered or delivered at the premises. Nor is that the basis on which the application was made to this court.
  1. [99]
    When the evidence is considered in its entirety, as a whole, I am satisfied that other sexual services clearly were being offered and delivered at the premises, under an arrangement of a commercial character, upon payment of money, those services including masturbation and oral sex. I am also satisfied that Cheah knows that such services were being offered and delivered. Such acts as masturbation and oral sex are acts of prostitution as defined in section 229E(i)(b),(c) of the Criminal Code. Here they are acts of prostitution because the respondent Cheah and or her employees, to her knowledge, engaged in those activities and offered to engage in such activities under an arrangement of a commercial character. It was equally clear on the totality of the evidence that on this occasion either of the women in the rooms was available to engage in delivering a ‘hand job’.
  1. [100]
    The evidence clearly establishes that the respondent employs and promotes multiple women to engage in the provision of sexual services as well as massage services. There is no requirement, for this application to succeed, that prostitution of a commercial character must be the sole or dominant purpose of engaging in the business at the premises.
  1. [101]
    I am satisfied on the balance of probabilities, and to a high degree of satisfaction, that there is a real, significant and present likelihood that the premises will be a brothel because the respondent will operate a brothel there without a licence.

ORDERS:

As I said in court on 14 November 2019:

“I make an ORDER pursuant to section 66A(1)(a) of the Prostitution Act 1999 DECLARING that the premises situated at 18/34 Dominions Road, Ashmore, in the State of Queensland, is a ‘prohibited brothel’.

This temporary declaration is made for a specified period, namely: until 11 December 2019 when I will deliver my Reasons for Judgment, if not sooner. The Application for a Final Order is adjourned to the 11 December 2019, at 9 a.m.”

JJ Costanzo

Magistrate

Southport

Footnotes

[1] I have applied the standard of proof in the manner expressed in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334 at CLR 362–3 , where Dixon J said that except in criminal matters, it is enough if an allegation is proved to the "reasonable satisfaction of the tribunal" and went on to say:

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal …

This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.

The degree of satisfaction required by the civil standard of proof may vary according to the gravity of the fact to be proved: see Briginshaw v Briginshaw, at CLR 368–9 , ALR 344–5, which was followed in Rejfek v McElroy (1965) 112 CLR 517; [1966] ALR 270; at CLR 521, where the High Court held:

But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.

[2] On the balance of probabilities but to a high degree of satisfaction, in accordance with the Briginshaw scale. See Footnote 1.

Close

Editorial Notes

  • Published Case Name:

    Detective Senior Constable Matthew Stephen Pyatt v Chye Jean Cheah

  • Shortened Case Name:

    Pyatt v Cheah

  • MNC:

    [2019] QMC 18

  • Court:

    QMC

  • Judge(s):

    Costanzo M

  • Date:

    05 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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