The Queen v O'Keefe
[1999] QDC 126
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- The Queen v O'Keefe[1999] QDC 126
- Add to List
The Queen v O'Keefe[1999] QDC 126
The Queen v O'Keefe[1999] QDC 126
DISTRICT COURT | Indictment No 363 of 1998 |
CRIMINAL JURISDICTION
JUDGE CF WALL QC
THE QUEEN
v.
DENNIS JAMES O'KEEFE and KELVIN REX STEWART and OLIVIA ANNE EDSON and ANNA MARIA PINCHEN and SHARON LEE PATTEN and LISA JANE REARDON
TOWNSVILLE
DATE 10/06/99
DAY 6
RULING
THE COURT RESUMED AT 11.35 A.M.
HIS HONOUR: Counsel for each of the accused have made a submission of no case to answer. The accused O'Keefe and Stewart are each charged with knowingly participating in the provision of prostitution by another person, offences against section 229H of the Criminal Code. O'Keefe's offence is alleged to have been committed between 27 July 1997 and 7 November 1997. Stewart's offence is alleged to have been committed between 2 November 1997 and 7 November 1997.
Each is also charged with an offence against section 2291 of the Criminal Code with being found without reasonable excuse in a place, namely the Mansfield Hotel, suspected on reasonable grounds of being used for the purposes of prostitution by two or more prostitutes. The offence by O'Keefe is alleged to have been committed between 2 November 1997 and 7 November 1997 and likewise for Stewart.
The girls involved - Olivia Anne Edson, Anna Maria Pinchen, Sharon Lee Patten and Lisa Jane Reardon - are each charged with an offence against section 229I, namely that on 6 November 1997 they were without reasonable excuse found in a place, namely the Mansfield Hotel, suspected on reasonable grounds of being used for the purposes of prostitution by two or more prostitutes.
The evidence establishes that on 28 July 1997, 5 September 1997, 2 October 1997, 3 October 1997, and 4, 5 and 6 November 1997, three of the girls and/or other girls were dancers in the public bar of the Mansfield Hotel and O'Keefe was the manager and Stewart was employed at the hotel in a capacity which involved exercising some control over the behaviour of the patrons during the shows. O'Keefe was responsible for organising rosters, announcing shows, promoting future shows and helping to set up the stage, if it could be called that. Stewart also assisted in the setting up of the facilities. O'Keefe had a role also in paying the girls, but mainly their income came from money raised from patrons before each show.
Miss Pinchen was employed at the hotel. She was not one of the dancers. She assisted on occasions during performances, on one occasion in particular handing a chair which had been passed to her from the bar to the pool table which was the stage. She also carried a bucket around the public bar area soliciting donations from the patrons for the shows. All money collected went to the girls who performed the shows.
Mr Nicolson for the Crown submitted that strip shows themselves do not, so far as the Crown is concerned, amount to a “sexual act” within the meaning of section 229D of the Criminal Code, but that certain things done by the various strippers during their shows did in fact amount to a “sexual act”.
The particular acts relied upon by the Crown as amounting to sexual acts within the meaning of section 229D are particularised at pages 71, 72, 73 and 74 to 76 of the transcript and I need not repeat those in any detail here. Suffice it to say that they include the girls touching and rubbing their vaginas, exposing their genitals to the audience, one placing an ice cube in her vagina and then into the mouth of a patron, exposing their backside and vagina, moving their hands around their vagina, placing wax on breasts and vaginas and using oil to rub various parts of their bodies including their vaginas and breasts. On one occasion, a cat-o'-nine tails was used, as appears from the particulars at page 72.
The question here is whether such activity amounts to prostitution within the meaning of chapter 22A of the Criminal Code. The Crown submits that the girls have gone further than a mere striptease dance or a dance during which their clothes are removed. They have gone further, so the Crown submitted, than just stripping.
In my view, there is clearly a difference between prostitution on the one hand, and entertainment, albeit quite lewd entertainment, on the other hand. Chapter 22A of the Criminal Code is a penal statute. It affects the personal liberty of the subject. In parts, it is, I think, quite ambiguous. In these circumstances a strict construction of its provisions is required. I think it is important to have regard to the object of chapter 22 and the conduct and behaviour to which it is apparently directed. In this sense it is permissible to have regard to explanatory notes, the speech made to the Legislative Assembly by the then Minister for Police and Emergency Services in moving the motion that the Bill for the Act be read a second time, and other speeches at that time. See section 14A(1) of the Acts Interpretation Act which is to the effect that 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.
Section 14B(1) provides as follows:
“Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation -
- (a)if the provision is ambiguous or obscure - to provide an interpretation of it; or
- (b)if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or
- (c)in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision.”
This is not a case, in my view, within section 14B(1)(c). It is certainly a case within section 14B(1)(b).
Section 14B(2) provides as follows:
“In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to -
- (a)the desirability of a provision being interpreted as having its ordinary meaning; and
- (b)the undesirability of prolonging proceedings without compensating advantage; and
- (c)other relevant matters.”
Section 14B(3) defines “ordinary meaning” as “the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act.” In my view the purpose of chapter 22A is not to regulate conduct of the nature alleged in this case.
I do not think that chapter 22A was intended to alter the traditional character or nature of prostitution. What it was intended to do is well stated in the explanatory notes to section 229D, in the following terms:
“This provision defines a sexual act to ensure all acts having a sexual nature are included when the Courts consider whether prostitution has occurred. Read with section 229E the essential ingredient for a sexual act in prostitution are two persons of either gender participating in sexual intercourse or some other indecent act which may or may not involve physical contact between the persons.”
I am reinforced in this conclusion by the examples given in section 229H and also the explanatory note to section 229H which is in the following term:
“This new provision provides for an offence of any person who organises, facilitates or controls the provision of prostitution. Examples contained within the provision amply demonstrate the proposed operation of this new offence. However, the examples given are not exhaustive and are to be used in a manner consistent with section 14D of the Acts Interpretation Act.”
Section 14D provides so far as is relevant:
“If an Act includes an example of the operation of a provision - (c), the example and the provision are to be read in the context of each other and the other provisions of the Act.”
I do not think that these sections, namely 229H and 229I, or, in fact, chapter 22A in general, were intended to cover a strip show involving sexual acts, albeit lewd sexual acts.
Rather, they are directed towards the traditional prostitute/client relationship.
The chapter is aimed at stopping prostitution, not public stripping, even public stripping and associated behaviour of a sexually explicit and perhaps indecent nature.
In section 229E the other person said there to be “another person” is, in my view, intended to be the client, or the customer in the traditional sense, and not a patron at a strip show. The explanatory note for section 229E is in the following terms.
“This provision clarifies that prostitution occurs when a person engages in a sexual act under an arrangement of a commercial character (whether the arrangement is initiated with the person or another person, and whether the pecuniary or other award under the arrangement is to be received by the person or another person).”
In the normal prostitute/client relationship it is immaterial whether the prostitute or a third person initiated the arrangement, or whether the prostitute or a third person, such as the brothel keeper or the prostitute's pimp was to be paid.
Section 229I(3), in my view, supports the view I have reached. It provides as follows:
“229I(3) In sentencing an offender who is a prostitute or client, the Court may, in mitigation of sentence, have regard to evidence of an appropriate sexual health check undergone by the offender within three months before the offence.”
That is designed, in my view, to cover places such as brothels where two or more prostitutes are working as such engaging in intercourse and sexual acts of the type defined in section 229D. By no stretch of the imagination or language, in my view, could a hotel patron observing a strip show, even shows of the type established by the evidence here, or at least shown on the videos, be said to be a client of the stripper; patron, yes, customer, yes, but in all cases a patron or a customer of the hotel.
The explanatory notes to section 229I are as follows:
“A new offence which penalises any person without reasonable excuse found in, or leaving, premises reasonably suspected of being used for prostitution. The term, ߠbeing used for the purpose of prostitution by two or more prostitutesߡ reflects the law as stated in Ferricks v Guzikowski (1992) 1 Q.R. 150.”
In that case Macrossan C.J. said at pages 153-4:
“The question then is, can it be said that premises are kept for prostitution if no acts of sexual intimacy for reward occur there and, even if that can be said, can it still be so if the women and the men who are eventually to be involved in the relevant activity, do not need to even communicate at those premises.”
The second paragraph of the explanatory notes to section 229I is in the following terms:
“The offence applies to clients, prostitutes or any other person found in or leaving the premises or place, however, a person with a reasonable excuse such as health workers would not commit the offence. The section provides that the prosecution must negate any reasonable excuse raised by an accused in order to gain a conviction.”
Why would a health worker observing a strip show at the Mansfield Hotel have a reasonable excuse to be there? He or she probably would not, but that would be because a strip show, even like the present, is not what the section is aimed at. Such a health worker may or may not be able to rely on section 2290(2).
In Kelsey v. Hill, (1995) 1 Qd.R. 182, the Full Court said at page 185:
“Although not spelled out with desirable clarity, it is implicit in section 229I taken in the context of chapter 22A that its object is to prevent or penalise the use of premises for prostitution by two or more prostitutes”.
That is so, but that is not the present situation in my view.
Section 229N is suggestive of an establishment in the nature of a brothel rather than the public bar of a hotel. That section is in the following terms:
“229N(1). The fact that a place is being used for the purposes of prostitution may be inferred from evidence of the condition of the place, material found at the place and other relevant factors and circumstances.
(2). However, evidence of condoms and other material for safe sex practices is not admissible against a defendant.”
In the speech made to the Legislative Assembly by the Minister for Police and Emergency Services in moving the motion that the Bill for the Act which inserted chapter 22A in the Criminal Code be read a second time the Minister said:
“The issue of prostitution is a dilemma which has always faced our society and almost every society in the world. A definitive answer has yet to be found to this age-old problem. Various societies have attempted to solve the problem with limited or no success. Some Governments have attempted to overcome the problem by legalising prostitution; others have attempted to apply social and criminal sanctions, while others have attempted to ignore the problem....
The Government recognises that prostitution will not be eliminated from our society, nor would it be appropriate to embark on a moral crusade to attempt to do so at the expense of other problems in our society.... (Are) people willing to buy and sell sex....
Organised, illegal prostitution has been able to gain a foothold in Queensland. To overcome this, the Bill proposes legislation aimed at these people in a manner which clearly expresses the Government's intention that their activities are not to be condoned. This is why this Government has targeted the pimps and parasites of organised prostitution in a move to reduce their influence and reduce other factors commonly associated with organised prostitution which are detrimental to our society....
....organised criminal activity has continued to flourish as part of the industry....
To overcome this, the Bill proposes legislation aimed at the organisers of prostitution. This Bill will repeal the inadequate simple offence provisions contained within the Vagrants, Gaming, and Other Offences Act as well as the outdated provision of keeping a bawdy house contained within the Criminal Code. These provisions will be replaced with criminal offences which target the organisers of illegal prostitution activity with the imposition of significant terms of imprisonment.
The proposed offence of participating in the provision of prostitution will be enforceable, regardless of whether the prostitution service is provided in a brothel or from an organised escort agency. Offences directed at clients will act as a disincentive, and this risk of prosecution will help reduce demand for prostitution services. A person who is found in or leaving a place suspected of being used for prostitution - that is by two or more prostitutes - without a reasonable excuse for being there, commits a crime. A certificate of discharge will also be offered to prostitutes and clients to assist police to gain sufficient evidence against the organisers....
The Government also acknowledges that there will continue to be a demand for sexual services in exchange for money....
Under the legislation, a health service worker can refuse to provide any information or answer any questions relating to an investigation or a prosecution on the grounds that it would breach client confidentiality. The purpose of this is to foster confidence in the health system and encourage safe sex practices, regardless of whether the prostitution is lawful or unlawful. Police will also not be able to use condoms and other safe sex material as evidence in the prosecution of a prostitution-related offence....
New advertising offences are broad and encompassing and will prohibit advertising for the purposes of prostitution regardless of whether the prostitution is lawful or unlawful. This should significantly help to reduce prostitution, by limiting knowledge of the whereabouts of prostitutes....
This Bill is directed at addressing the anomalies in the present prostitution laws which have made them unwieldy and unworkable.”
In the second reading speeches, Government members, including Mrs Woodgate, Mr Beattie and Mr Pitt, spoke about the Bill.
“Mrs WOODGATE: I am pleased to speak in support of the Prostitution Laws Amendment Bill....(It) is universally accepted that there is no permanent solution to the eradication of organised prostitution and its associated nasties such as drugs, money laundering, tax evasion and - perhaps the worst of all - child exploitation....
As to the matter of single operators, we have the Deputy Leader of the Coalition, the member for Caloundra, complaining, ‘We have the farce where a brothel is illegal and a single operator is legal’. That is right. That is exactly the gist of this legislation. With this Bill, the Government is outlawing organised prostitution. There is a big difference between organised prostitution, whether it is large brothels, escort agencies or even organised home units or flats owned by one owner and rented to the prostitutes, and the genuine individual prostitute working alone from a private residence....
The Government is not breaking new ground with this legislation. The present law relating to a private operator is not being changed....
Two or more persons constitutes an illegal brothel; a single operator commits no offence....
Nobody on this side of the House is saying that the passage of this Bill through this House will see the end of prostitution in this State. It will not....
I turn now to a comment made by the Opposition member that there is no evidence to support any direct link between the drug industry and prostitution....In fact, the body of evidence which links drugs to organised prostitution is absolutely overwhelming.”
“Mr BEATTIE: I want to make the very clear point that my electorate of Brisbane Central has perhaps more brothels than any other electorate in this State....
I believe that one of the positive aspects of the Bill is the limiting provision relating to evidence of prostitution. I refer to proposed new section 229N of the Bill. That section precludes the use of condoms and other safe sex practice materials from being used as evidence of offences under the Criminal Code.... Within whatever legislation is introduced or whatever regulations apply to the sex industry, measures need to be provided to ensure that, as much as is humanly possible, safe sex practices are encouraged. Because of AIDS, that particularly applies to recent times....
Therefore, it is important that the possession of a quantity of condoms not be used by police as evidence in a trial or a charge against a sex worker....
I congratulate the Minister on including that provision, because it will encourage safe sex practices. At the very least, it will not act as a disincentive for safe sex practices....
Earlier, I spoke about the need for a heavy emphasis on safe sex practices in any legislation dealing with prostitution. I referred to the clause which provides that the possession of condoms cannot be used as evidence of a criminal offence. Another clause of the Bill relates to the non-compellability of health service providers to give evidence. The clause provides basically that people who provide health services to prostitutes cannot be compelled to give evidence of an offence against the Criminal Code. The reality is that, if people who are involved in the sex industry are to have any confidence in dealing with health service providers, they need to know that the information that they provide to those health service providers will be treated confidentially.”
“Mr PITT: I turn now to some of the main elements of the Bill before us. Under the terms of the Bill, prostitution is not decriminalised. The major elements of the law are aimed at organisers and the entrepreneurs of prostitution, and the penalties apply equally to the prostitute and the client. The current situation is ridiculous in that the service provider is the subject of punitive action, whereas the client, the integral factor in the equation, escapes the attention of the law....
....sex workers were likely to be younger, inexperienced prostitutes....
Both the Government and the CJC have recognised the impossibility of trying to wipe out single operators.... It will be an offence to advertise prostitution services in Queensland. Therefore, while the Government allows genuine sole operators to continue to work, there are restrictions placed on how they can operate and how their business impacts on their neighbours.”
The Minister's speech was given on 13 November 1992, and the other three on 24 November 1992.
It is clear from these speeches that the legislation was aimed at brothels, massage parlours and escort agencies, and not public bars of hotels.
In fact, Mrs Woodgate said, at page 887, “The Government is not breaking new ground with this legislation”. It certainly would have been breaking new ground with the legislation, in my view, had it been intended to cover conduct of the nature alleged by the Crown against these accused in the place alleged by the Crown.
I do not think that Parliament had any intention, by chapter 22A, of dealing at all with the present situation. Had it intended that this type of activity amount to prostitution, it would have been a simple matter for it to have said so, but it has not.
What the evidence establishes here is strip shows and lewd strip shows involving acts of a sexual nature. The whole exercise was aimed at selling beer, not girls. Stripping was ancillary to that object. It was not the purpose of the activity. This was a hotel, not a brothel.
These girls I think, would probably be offended if they were described as sex workers as opposed to dancers, entertainers or strippers. In my view, the evidence establishes that they were dancers, strippers or entertainers not prostitutes.
Mr Justice Pincus said in The Queen v. Newcombe and Barns (1996) 1 Qd.R. 323 at page 325:
“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....”
Now that is capable of covering dancers or entertainers and the statement is not limited to stage actors in the course of their act not performing acts of a sexual nature.
In case it be thought that conduct of the nature relied upon by the Crown must go uncharged or unpunished, reference need only be had to section 4(1)(g)(iv) and section 7(1)(e) of the Vagrants, Gaming and Other Offences Act and section 227(1) of the Criminal Code, which I think are better designed for situations such as the present.
Section 4(1)(g)(iv) makes it an offence for a person to wilfully expose his or her person in view of any person in any public place. Section 7(1)(e) makes it an offence for any person in any public place to behave in an indecent or offensive manner. Section 227 makes it an offence to wilfully and without lawful excuse do 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.
The Newcombe and Barns situation is, in my view, distinguishable from the present case. It involved a one-on-one situation in a private room in premises where similar services were being provided by at least one other girl. There was an establishment in that case providing those services and using more than one girl to provide them. Section 229D does not limit, in that situation, “sexual act” to sexual intercourse. The case did not deal with the present situation. It dealt with what amounts to a sexual act in the context of the operation being engaged in in that case.
There will always be doubt, as the Full Court in Poiner v. Hanns (1987) Qd.R. 242, referred to by Mr Martin recognised, about whether particular conduct can properly be regarded as prostitution. Such debates can only be resolved in individual cases.
In the present case, I have no doubt that the type of conduct relied upon by the Crown in this case does not amount to prostitution. In my view, prostitution was not being provided in terms of section 229H, or at least there was no evidence that it was, nor was the public bar of the Mansfield Hotel being used for the purposes of prostitution by two or more prostitutes under section 229I. There may have been a suspicion on the part of the police, but, in view of the conclusions I have reached, there were no reasonable grounds for that suspicion.
An alternative argument was relied upon which related specifically to the acts of a sexual nature relied upon by the Crown.
Mr Justice Davies, in The Queen v. Newcombe and Barns, said at page 325:
“In their context, the activities described in paragraphs (a) and (b) of the definition of “sexual act” in section 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”.
In the present case, the evidence establishes, in my view, no more than that the acts - and I include the ones relied upon by the Crown as amounting to acts of a sexual nature - were carried out as a form of entertainment, albeit lewd entertainment in certain respects, and not carried out with a view to or calculated or intended to provide sexual gratification to the customers or patrons.
Certainly it is not suggested that sexual gratification was achieved by the girls involved. There is no evidence in relation to sexual gratification, and I do not think that there is any evidence or sufficient evidence from which it could be inferred, even if I was with the Crown on the first point. The patrons were being entertained, there was no evidence that they were being other than entertained.
The question of sexual gratification was also referred to in Poiner and Hanns. In that case the Full Court said at page 246:
“Once it is recognised that the essential concept in prostitution is the gratification of sexual appetites for gain, it becomes clear that the question of whether a man or a woman is involved, or whether homosexual or heterosexual activities are involved, are of little consequence.”
Mr Martin submitted that the evidence must establish a sexual act designed or intended for sexual gratification, that is intended by the actor, in this case the girls; that the sexual act must relate to sexual gratification and involve conduct of the nature which amounts to a satisfaction of sexual appetites. I agree. Mr Martin also submitted that at its minimum, what is required is “a sexual act qua-prostitution”. I agree.
Whilst some of the actions of the girls here may have involved sexual acts, there is no evidence in my view that they involved sexual acts qua-prostitution.
It follows from what I have said that I think, with the upmost respect, that the decision of Judge Hanger in Rogers v. Massingham (Unreported) District Court, Southport, Queensland, was wrong. It does not appear from the judgment in that case that His Honour had addressed to him the issues which I have been considering. If I am wrong in the conclusion that His Honour was wrong, the facts are distinguishable from the present case. It was there a one on one situation.
For these reasons I am of the view that each of the accused has no case to answer.
What do you want to do, Mr Nicolson?
MR NICOLSON: Your Honour, I would be asking for the return of the indictment in those circumstances. Does Your Honour wish to do that in the presence of the jury?
HIS HONOUR: Yes. I think I had better explain to the jury what has happened, and after I do that you can ask for the return of the indictment.
MR NICOLSON: Yes, thank you, Your Honour.
HIS HONOUR: Is that satisfactory, gentlemen?
MR NICOLSON: Thank you, Your Honour.
HIS HONOUR: All right, I'll just adjourn briefly.
THE COURT ADJOURNED AT 12.20 P.M.