DISTRICT COURT OF QUEENSLAND

1. [1]
   The respondent, Paul Merritt Hayes, in relation to 543/08 appeals against the orders of a Magistrate made at Southport on 5 September 2008 as follows:

1. (i)
   Count 1 (offence contrary to the provisions of s 226 of the Liquor Act 1992) (“The Act”) against the first respondent Surfers Paradise Rock and Roll Café Pty Ltd (SPRRC) be dismissed; and

2. (ii)
   The complaint against the second respondent Mick Pikos (Pikos) under the same provision be dismissed.

2. [2]
   The appellant, SPRRC, in relation to 564/08 appeals against the order of a Magistrate made at Southport on 5 September 2008 as follows:

1. (i)
   Convicted of breach of s 226(a) of the Liquor Act 1992 – contravention of conditions of licence on 17 November 2006.

3. [3]
   The appellant, Pikos, in relation to 565/08 appeals against the order of a Magistrate made at Southport on 12 September 2008 as follows:

1. (i)
   That the complainant (Hayes) pay the defendant’s (Pikos) costs in the sum of $3,625.

4. [4]
   Before turning to the grounds of appeal in respect of each of these matters (which were, by consent, heard together) it is convenient to briefly outline the circumstances relating to the charges. At 9pm on 17 November 2006 Gemma Smith was handing out cards in Orchid Avenue Surfers Paradise. Ms Smith was handing out the cards for her employer Crazy Horse Night Club which was operated by Surfers Paradise Rock and Roll Café Pty Ltd. SPRRC holds a liquor licence and an adult entertainment permit. The nominee of both the licence and the permit was Mick Pikos. The appellant in 543/08 says that because Ms Smith was handing out the cards both SPRRC and Mick Pikos committed breaches of the Liquor Act.

5. [5]
   Ms Smith was observed by Paul Hayes, an investigator employed by the Liquor Licensing Division and Gregory St Clair, a Sergeant of Police, both of whom gave evidence before the Magistrate. Mr Hayes and Sergeant St Clair saw Ms Smith standing near a money exchange booth in Orchid Avenue, some distance from Crazy Horse. Sergeant St Clair took a photograph of Ms Smith who was respectably dressed. Ms Smith was seen to hand out cards on two or three occasions each time apparently speaking to the person to whom a card was given. It is not known what she said on those occasions. Mr Hayes then approached Ms Smith who handed him a card and said “half price entry to Crazy Horse”.

6. [6]
   The card measured 9cm x 5.5cm and on each side the words “Crazy Horse” appear in relatively large print. On one side of the card the words “adults only” and “striptease” appear twice. On the other side, below the words “Crazy Horse”, the following words appear:

“OPEN 7 DAYS – 8:30 PM START

Continuous Striptease

Private Lap Dancing Room!

½ price entry before midnight with this card.

THE MARK BUILDING, ORDHID AVE, SURFERS PARADISE

PH: 55924170”

          Ms Smith had 140 of these cards in her hands.

7. [7]
   Mr Hayes and Sergeant St Clair then entered Crazy Horse and spoke to the brother of Mick Pikos (Chris Pikos), who informed them that Mick Pikos was not at Crazy Horse that night but that he (Chris) was the manager of Crazy Horse that evening. He admitted asking Ms Smith to hand out the cards in the street.

8. [8]
   The Magistrate found that Ms Smith was standing and not physically approaching any person to hand out the cards. As persons walked past the place where she was standing she extended her hand with a card in it. The Magistrate found that Ms Smith was not shouting or talking loudly, and that the words she spoke could not be heard unless one was in her immediate vicinity. The Magistrate accepted that Ms Smith said “half price entry to Crazy Horse” to Mr Hayes, and for that reason, may have said something similar to others to whom cards were handed.

FIRST CHARGE – SPRUIKING OR TOUTING FOR BUSINESS (543/08)

9. [9]
   The permit held by SPRRC contained the following condition:

“The permittee must ensure that spruiking or touting for business involving adult entertainment occurs only on the permittee’s premises and only on parts of the premises from which the spruiking or touting is not audible or visible to a person who is not on the premises”.^[1]

 Pursuant to section 226 of the Act “a person who contravenes a condition specified in …a licence or permit…commits an offence against this Act”.

10. [10]
    The case for the prosecution was that by handing out the cards in Orchid Avenue, Ms Smith was “spruiking or touting for business involving adult entertainment” and that SPRRC was in breach of the condition in the permit to ensure that this did not occur. By breaching the condition SPRRC contravened section 226 of the Act. Further, because Mick Pikos was the nominee in respect of the licence and permit he is also liable for the offence pursuant to section 109(6) of the Act.^[2] 

11. [11]
    I note that no objection was taken to the apparent duplicity of the charge in alleging “spruiking or touting”. The Magistrate was not satisfied beyond a reasonable doubt that Ms Smith was spruiking for business on the evening in question and concluded that although Ms Smith was handing out advertisements for Crazy Horse he was not satisfied beyond reasonable doubt that she was touting for business at the relevant time. No appeal lies in respect of the learned Magistrates decision to dismiss the charge in relation to spruiking.

12. [12]
    The Magistrate correctly observed that the word “touting” is not defined in the Act or the Regulation. By reference to the Oxford dictionary and the Macquarie dictionary the Magistrate identified a common theme in the meanings of “touting” in those dictionaries of active engagement to exert some pressure, however subtle, upon a potential customer. In the reasons for his decision the learned Magistrate stated as follows:

“The Oxford dictionary says to tout is to “…solicit custom;…[to] pester customers; [to] try to sell…” something. To solicit is to “…entreat, petition, urge (a person); [to] ask earnestly or persistently;…[to] seek assiduously to obtain [business];…[to] ask earnestly or persistently…” (footnote omitted).

According to the Macquarie dictionary, to tout means “…to solicit [business] importunately…to solicit support for importunately…”  To solicit is “…to seek for by entreaty, earnest or respectful request, formal application… to entreat or petition [a person] for something or to do something; [to] urge; [to] importune;…to endeavour to obtain (orders or trade), as for a business house…”

The Macquarie dictionary says that touting only occurs if a person acts “importunately” and the Oxford dictionary says to tout is to “pester customers”. To the extent that touting involves soliciting, that word requires a person to act “assiduously” to get business or to act “earnestly or persistently“.^[3]

13. [13]
    The learned Magistrate deemed it necessary to examine the way in which Ms Smith was handing out the cards in order to ascertain whether such conduct amounted to touting. He considered that if Ms Smith had been forcing herself upon passers by, earnestly or persistently urging them to take the cards and go to the night club, she would have been touting. However, the Magistrate noted that Ms Smith was standing stationery and hand the cards only to those persons who took them as she extended her hand. His Honour found that there was no suggestion that Ms Smith forced anybody to take a card or that she urged, by the language she used, persons either to take a card or to go to the night club. The words “half price entry to Crazy Horse” were uttered in a conversational tone and merely reflected what was written on the cards. In those circumstances the learned Magistrate found that he could not be satisfied beyond reasonable doubt that Ms Smith was touting for business at the relevant time.

14. [14]
    The grounds of appeal in relation to the first count are as follows:

AThe learned Magistrate erred in law when he dismissed count 1 (s. 226 offence) of the complaint against SPRRC by his finding that to establish proof of “touting” as found in s. 29(d) of the Liquor Regulation 2002 required evidence of a person actively engaging to exert pressure upon a potential customer;

BAlternatively to A. the learned Magistrate erred in law and fact when he dismissed count 1 (s. 226 offence) of the complaint against SPRRC by failing to find that the prosecution evidence did establish beyond reasonable doubt that SPRRC (by its employee Ms Smith) is and was ‘touting’ in that she was actively engaging to exert pressure upon a potential customer; and

CThe learned Magistrate erred in law when he dismissed the complaint against Pikos by failing to act in accordance with s. 109(6) of the Liquor Act 1992 so as to find liability against Pikos for the offences committed by SPRRC.^[4]

15. [15]
    Counsel for Hayes, in his written submissions^[5]submits that both the Oxford and Macquarie dictionary definitions referred to by the learned Magistrate pick up the word “solicit”; ie “…solicit custom” and “…to solicit [business]…” (emphasis added). In consequence, to determine the meaning of “touting” the word “solicit” cannot be ignored. The term “solicit” is used in legislation disjunctively with “tout”; see section 141 Transport Operations (Passenger Transport) Regulation 2005 (Qld); and coexistent with “touting”; see s 67 Personal Injuries Proceedings Act 2002 (Qld). This, is submitted, does not support a conclusion that the legislator intended that both should be read differently if to do so would not promote the purpose and objects of the Act. Counsel submits that the underlying objective of section 29(d) of the Liquor Regulation 2002 is to prevent or discourage “off premises” adult entertainment promotional activities that intrude upon the privacy of others going about their business in the locality.

16. [16]
    What the employee Smith did, Counsel for Hayes submits, by her physical conduct in public offering the services of the Crazy Horse, her words used to entice potential customers, and in connection with the text that appeared on the promotional cards, does not accord with the underlying objectives to be achieved.

17. [17]
    In my view, however, in the light of the findings made by the learned Magistrate, which were clearly open to him to make on the evidence placed before him, no error has been demonstrated with respect to his construction of the term “touting”. The meaning to be ascribed to the term as held by the learned Magistrate finds sufficient support in the dictionary references identified in the reasons for decision. It was, in my opinion, quite permissible for the Magistrate to have reference to entries in the Oxford and Macquarie dictionaries to assist in ascertaining the meaning “tout” in circumstances where no assistance was provided by the legislature in defining the term in question. I am not persuaded that there has been any error in the reasoning of the learned Magistrate as to the meaning of the terms “tout” or “touting” such as to warrant interference by this Court.

18. [18]
    Accordingly, the appeals against the order of the learned Magistrate in respect of the first count are dismissed. I order that the appellant, Hayes, is to pay the respondents’ costs in such amounts and within such times as are determined by this Court upon the receipt of written submissions by the parties as to costs.

SECOND CHARGE – ADVERTISING ADULT ENTERTAINMENT (564/08)

19. [19]
    Section 168A of the Act provides:

“a person must not publish an advertisement for adult entertainment that describes the sexually explicit nature of the acts performed in the entertainment.”

 The case for the prosecution was that, by having Ms Smith hand out the cards, SPRRC was publishing an advertisement for adult entertainment contrary to s 168A of the Act and that Mick Pikos is similarly liable under s 109(6) of the Act.

20. [20]
    Unfortunately, in considering whether the words “private lap dancing room” describe an explicitly sexual act, the learned Magistrate had reference to an online dictionary Wiktionary at http://en.wiktionary.org/wiki/lap_dance.^[6]The necessity for resorting to the online product relates directly to the failure by the prosecution to lead any evidence as to what was meant by the terms “striptease” or “private lap dancing room”. Senior Counsel for SPRRC and Mick Pikos submits that such a course was inappropriate and an error of jurisdiction.

21. [21]
    In my view, at the very least, the learned Magistrate should have given the defendants appropriate opportunity to contradict or comment on the meaning provided by (and apparently accepted by the Magistrate) the online service. The failure to permit the parties any opportunity of making submissions with respect to the Wiktionary entry as to the meaning of “lap dance” must be seen as a denial of natural justice.

22. [22]
    In Bailey v City Smash Repairs (Vic) Pty Ltd^[7]Smith J considered the taking of judicial notice by consulting a street directory. His Honour stated:

“I am not persuaded that taking judicial notice by inquiry from a street directory is presently permitted by the law – notwithstanding the absurdity of such a result. Thus judicial notice was not available to his Worship and if, as asserted by the Appellant, he did take judicial notice, he would have been in error.

Further, assuming that the circumstances were such that judicial notice by inquiry could have been considered, and such inquiry would have established the required facts, it would seem to me in the circumstances of this case to have been wrong in law to take judicial notice by inquiry because of the critical nature of the facts in question (Cross on Evidence, above, para 3069; Weir v Davidson [1965] VR 506). The issue is one where the prosecuting person should be required to produce evidence. If however, judicial notice by inquiry could have been undertaken by the learned Magistrate, he would have been obliged to give the defendant the opportunity to contradict or comment on the issue. Otherwise, there would, in my view, have been a denial of natural justice.”^[8]

23. [23]
    In MZXMM v Minister for Immigration & Anor^[9]the question arose as to whether reference by the Migration Review Tribunal to a Wikipedia website amounted to jurisdictional error. It was held that the Tribunal had committed jurisdictional error by having regard to an irrelevant piece of information. The information is irrelevant where it is so unreliable that no Tribunal acting reasonably would have regard to that information. The Court^[10]observed that “whilst the website might be an acceptable general source of information perhaps for a primary or secondary school student it is difficult to conceive that it would be material which an undergraduate could rely upon in a bibliography or a list of references at any respectable university. Reliance upon a website of this kind would appear to transgress well established academic and legal principles applying to texts including identification of the author, distinctions between opinion and facts and accurate identification of source material.”^[11]

24. [24]
    In Environment Protection Authority v Bowport All Roads Transport Pty Limited^[12]it was held that “clearly Wikipedia is not a reliable source of expert information to be given as ‘first-hand’ evidence”.^[13] 

25. [25]
    I am unable to accept the submission of Counsel for Hayes that the fact that the learned Magistrate relied upon Wiktionary is of no moment to the outcome of his determination that the advertisement “describes” the sexually explicit nature of the acts performed. The submission overlooks the failure of the Magistrate to afford the parties an opportunity of considering and making submissions on the information derived from the online source. As I have previously indicated this amounts to a denial of natural justice.

26. [26]
    In the circumstances, then, I order that the appeals in respect of the second charge – advertising adult entertainment be allowed and that the convictions of SPRRC and Mick Pikos on those charges be set aside. I further order that those matters be remitted to the Magistrates Court and that the charges be listed before a Magistrate other than the original presiding Magistrate.

27. [27]
    The respondent Hayes is to pay the costs of the appellants in such amounts and within such time as are determined by this Court upon the receipt of written submissions from the parties as to costs.

APPEAL BY MICK PIKOS AGAINST COSTS ORDER MADE BY MAGISTRATE (565/08)

28. [28]
    The learned Magistrate ordered that the complainant, Hayes pay the defendant’s (Pikos) costs in the sum of $3,625. Mr Pikos claimed costs in the sum of $33,432.85. His honour expressed difficulty discerning that the case had special difficulty, complexity or importance.^[14] 

29. [29]
    A number of factors listed in section 158A of the Justices Act 1886 were considered by the learned Magistrate in his reasons. Firstly, as to whether the proceedings were brought and continued in good faith^[15]his Honour stated that he was not prepared to accept that the prosecution was brought in bad faith and that the strength of the case against Mr Pikos should have been apparent from the outset.^[16]Secondly, as to whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding,^[17]his Honour stated that there was no failure to take such steps.^[18]Thirdly, as to whether the investigation into the offence was conducted in an appropriate way^[19]his Honour stated that this was not an appropriate factor in view of the findings that he had made.^[20]Fourthly, as to whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant,^[21]his Honour stated that the finding was not made on technical grounds. Fifthly, as to whether the defendant brought suspicion on himself by conduct engaged in after the event constituting the commission of the offence,^[22]his Honour stated that there was no behaviour by the defendant which would militate against an order for costs.^[23]The same comment was made by the learned Magistrate in respect of whether the defendant unreasonably declined an opportunity before a charge was laid to explain his version of the events or to produce evidence likely to exonerate the defendant and the explanation or evidence could have avoided a prosecution.^[24]

30. [30]
    The learned Magistrate referred to the provisions of section 158B of the Justices Act 1886 which provides as follows:

158B  Costs for division

3. (1)
   In deciding the costs that are just and reasonable for this division, the justices may award costs only-

a.for an item allowed for this division under a scale of costs prescribed under a regulation; and

b.up to the amount allowed for the item under the scale.

3. (2)
   However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.

31. [31]
    The Magistrate noted that the case had two witnesses for the prosecution and none for the defence. The case continued for one and a half days and there was some legal argument, but not a serious challenge as to the factual basis upon which the prosecution was brought. It resulted in a conviction of SPRRC with a fine of $1,000 and although Mr Pikos was acquitted that was seen as an indicator of the seriousness of the offence. The learned Magistrate concluded that there was nothing especially difficult or complex in the case.^[25]

32. [32]
    I am unable to discern any error in the manner in which the learned Magistrate exercised his discretion with respect to his order with regard to costs. There is no justification for this Court to interfere with his Honour’s order and the appeal by Mr Pikos in this regard must be dismissed. The appellant is to pay the respondent’s costs of and incidental to this appeal in such amount and within such time as may be ordered by the Court following the receipt of written submissions by the parties as to costs.