Rogers v Massingham
[1998] QDC 70
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- Rogers v Massingham[1998] QDC 70
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Rogers v Massingham[1998] QDC 70
Rogers v Massingham[1998] QDC 70
IN THE DISTRICT COURT HELD AT SOUTHPORT QUEENSLAND | APPEAL NO: 25 OF 1997 |
BETWEEN:
GENE TORRIN ROGERS | Defendant/Appellant |
AND:
ANDREW PETER MASSINGHAM | Complainant/Respondent |
REASONS FOR JUDGMENT - HANGER D.C.J.
(Delivered the 3 day of March 1998)
The appellant was convicted of an offence which involved being in a place which was suspected on reasonable grounds of being used for the purposes of prostitution by two or more prostitutes.
Briefly, the grounds of appeal argued are firstly that there was no evidence of there being any sexual act between the appellant and any person, secondly, that there was no evidence capable of satisfying the magistrate beyond reasonable doubt that there were two or more prostitutes on the premises and, thirdly, that the magistrate was wrong in finding that the prosecution had proved beyond reasonable doubt that the appellant did not have a reasonable excuse for being on the premises.
S. 229E of the Criminal Code defines prostitution in the following terms:
- “(1)A person engages in “prostitution” if the person engages in a sexual act with another person under an arrangement of a commercial character.
- (2)It is immaterial whether-
- (a)the arrangement is initiated with the person engaging in the sexual act or a third person; or
- (b)the pecuniary or other reward under the arrangement is to be received by the person engaging in the sexual act or a third person.
“Sexual act” is defined in S.229D:
- (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)Subsection (1) applies equally to males and females; and
- (b)is not limited to sexual intercourse or acts involving physical contact.
I will deal with the principal argument first, that is, that there was no sufficient evidence that the appellant was involved in a sexual act.
The activity in which the appellant was involved is referred to as “lap dancing”. There was evidence before the magistrate that this involved, for payment of a fee, a woman removing her clothing in front of a patron, thus exposing her breasts and genitals, permitting some physical contact with the patron, by sitting on his lap, and allowing him to touch parts of her body, excluding the genital area, and moving or wiggling in front of him in a suggestive, seductive or enticing way, clearly for the purpose of sexual stimulation.
The complainant, in the course of his evidence before the magistrate, stated that on entering the premises he observed:
“The defendant seated in a lounge chair ..... and a female .... bending forward and I noticed that she had her right knee situated between (the appellant's) legs and that she had her hands placed on his shoulders ..... I also noticed that he had his hands on her buttocks and that she was moving in a slightly up and down motion, maintaining contact.”
A video tape recording of this behaviour was in evidence before the magistrate, part of which I have viewed at the request of the respondent.
The meaning of “sexual act” was considered in R v. Newcombe and Barnes (1996) 1 Qd. R. 323. In that case Pincus J.A. took a more restrictive view of this term than did the other members of the Court. In his judgment at p.325 he stated:
“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.”
Even if this more restrictive approach is applied to the definition of “sexual act” I am satisfied there was ample evidence to support the magistrate's finding. Certainly, he did say that the conduct observed was “simulating a sexual act.” However, he had earlier stated that the actions of the parties constituted a sexual act. His subsequent statement that it was simulating a sexual act was no doubt referring to the up and down motion simulating sexual intercourse. The second of the appellant's submissions is that there was no evidence capable of satisfying the magistrate beyond reasonable doubt that there were two or more prostitutes on the premises. On the evidence before him I am satisfied that the magistrate was clearly justified in drawing this inference. There was evidence that at least two women were performing “lap dances” on the premises on the night in question and also prior to that time. There was also evidence that these were provided for a price, $30.00 for 15 minutes and that money had been paid for the “lap dance” in which the appellant was involved. There was also other evidence, including statements made by the appellant, to justify the inference that the premises were suspected on reasonable grounds of being used for the purposes of prostitution by two or more prostitutes.
The final submission was that the prosecution had not discharged the onus of proving that the appellant did not have a reasonable excuse. There is evidence from which the magistrate could conclude that the appellant willingly participated in the lap dance. He knew that a fee had been paid for this service. He was aware that more than one woman was involved in providing these services. What his belief may have been when he first entered the premises is irrelevant. Once he acquired the knowledge as to what was going on there and willingly became involved he ceased to have any reasonable excuse for being on the premises. There was evidence from which the magistrate could come to this conclusion. See also Kelsey v. Hill (1995) 1 Qd. R. 182.
The appeal is dismissed.