Ferricks v Guzikowski; ex parte Ferricks [1990] QSCFC 88 [1992] 1 Qd R 150

IN THE SUPREME COURT OF QUEENSLAND n /^c ‘r- R rw!D“~ ''^1"]"g I^SUE C~ur* Bureau Date: Zfi // / ?o FULL COURT O.S.C. No. 20 of 1989 BEFORE: The Chief Justice (Mr. Justice Macrossan) Mr. Justice Derrington Mr. Justice de Jersey BRISBANE, 21 NOVEMBER 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: GWENDOLINE LUCY FERRICKS v. JACQUELINE GUZIKOWSKI Ex parte: GWENDOLINE LUCY FERRICKS BO 40 50 ORDER THE CHIEF JUSTICE: In my opinion the order nisi for review should be made absolute, the acquittal of the respondent below set aside and the proceedings remitted to the Magistrate so that he might enter up all necessary adjournments, convict the respondent on the relevant charge and otherwise proceed in accordance with law. There should be no order as to the costs of the proceedings. I publish my reasons. MR. JUSTICE DERRINGTON: I agree. I publish my reasons. THE CHIEF JUSTICE: I am authorised by Mr. Justice de Jersey to publish his reasons and I now publish them. He agrees with the order I have proposed. The order of the Court will then be as I have indicated. 30 40 50 6l —Govt. Printer, Qld. 60 1 [1990] QSCFC 88 -- 1 of 29 -- ] 10 20 30 40 50 60 THE CHIEF JUSTICE: The solicitor appearing on behalf of the respondent has made application for a certificate under the Appeal Costs Funds Act and asked that the matter be adjourned for the purpose of hearing argument. The practice of the Court is to require that any intimations of certificates of that sort which are asked for should be made during the hearing of the appeal. We cannot, of course, sit now, even if counsel were here, because there are only two judges present. MR. JUSTICE DERRINGTON: Apart from that there would be a grave difficulty because the Magistrate found in accordance with the submissions. THE CHIEF JUSTICE: The solicitor for the respondent wishes to have the Court re-convened at some time. There will be implications for costs in this request, but those are his instructions. As the other side have left, we cannot say anything in their absence. We will have to be regarded as having said nothing at all in respect of the merits of the application. All we know is, somewhat informally, that one side will be contacting us. The solicitor for the respondent will have to speak to the other side and tell them of their intention. We cannot adjourn it in their absence. It may be for certain reasons that the respondents may not wish to proceed, but we cannot formally order that the matter be adjourned to a date to be fixed because we have given a judgment. My Associate can be contacted if the matter is wished to be taken further. 10 2 30 40 50 60 Printer, Qld. a -- 2 of 29 -- /«S ¥ ofrj IN THE SUPREME COURT OF QUEENSLAND FULL COURT O.S.C. NO 20 OF 1989 BETWEEN: GWENDOLINE LUCY FERRICKS AND: JACQUELINE GUZIKOWSKI EX PARTE: GWENDOLINE LUCY FERRICKS CHIEF JUSTICE DERRINGTON J de JERSEY J Reasons for judgment delivered by The Chief Justice, Derrington J and de Jersey J on the 21st November, 1990. All agreeing with the orders made . "ORDER THAT THE ORDER NISI FOR REVIEW BE MADE ABSOLUTE, SET ASIDE THE ACQUITTAL OF THE RESPONDENT AND REMIT THE PROCEEDINGS TO THE MAGISTRATE SO THAT HE MIGHT ENTER UP ALL NECESSARY ADJOURNMENTS, CONVICT THE RESPONDENT ON THIS CHARGE, AND OTHERWISE PROCEED IN ACCORDANCE WITH LAW. FURTHER ORDER THAT THERE BE NO ORDER AS TO THE COSTS OF THE PROCEEDINGS. -- 3 of 29 -- IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 20 of 1989 Before the Full Court The Chief Justice Mr. Justice Derrington Mr. Justice de Jersey BETWEEN: GWENDOLINE LUCY FERRICKS v. JACQUELINE GUZIKOWSKI Ex parte: GWENDOLINE LUCY FERRICKS ’ ’ JUDGMENT - THE CHIEF JUSTICE Delivered the twenty-first day of November, 1990 CATCHWORDS: Counsel: Mr. M. Byrne for the Applicant. Mr. D.K. Boddice for the Respondent. Solicitors: Director of Prosecutions for the Applicant. Goss, Downey & Carne for the Respondent. Hearing dates: 16 and 17 October, 1990 -- 4 of 29 -- IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 20 of 1989 BETWEEN: GWENDOLINE LUCY FERRICKS v . JACQUELINE GUZIKOWSKI Ex parte: GWENDOLINE LUCY FERRICKS JUDGMENT - THE CHIEF JUSTICE Delivered the twenty-first day of November, 1990. The facts and relevant authorities are discussed in the reasons of Derrington and de Jersey JJ. Some difficulty arises in the decision of this case because of the effect which appears to flow from long-standing authority. In the end, I think that the question is whether this Court should respond to the implications arising from the decision of the High Court in Samuels v. Bosch (1972) 127 C.L.R. 517 and, in doing so, move away from interpretations of decisions previously pronounced in this State, at least to the point of distinguishing or confining them. Sub-section 8(1) (a) of the Vagrants , Gaming and Other Offences Act 1931-1989, which for the purposes of this appeal we are asked to construe, has stood in its present form since 1931 when it was first enacted. No decision to which we were referred is, in fact, directly in point except for the single judge decision of the Supreme Court of this State in O'Sullivan v. Brennan, ex parte Brennan (unreported, O.S.C. No. 1 of 1988) which, it might be said, was decided conformably with the course of earlier authority and against the appellant's contentions . -- 5 of 29 -- 2 There are obiter remarks in R. v. Ludgate (unreported, C.A. No. 151 of 1988) which also are contrary to these contentions. This is not a case where the state of the evidence leaves any difficulty. While the picture which emerges from the evidence is clear the determination of the true meaning of the words of the statute in their application to that evidence is not without its problems. The following conclusions appear to emerge . The respondent had a full appreciation of the intended end results of the arrangements she was making. She would receive telephone calls from men responding to advertisements of the escort agency by which she was employed. Her part was to communicate with girls and arrange for them to be despatched to meet the men callers at other locations for the purposes of prostitution . The premises at which the respondent received the calls was not one where men and women met or one at which they ordinarily separately attended since customarily all arrangements were made by telephone, but they were premises which it is fair to describe as dedicated to the purpose I have outlined. They were shown to be used for the purpose of arranging escort and prostitution services and the evidence did not indicate that they were used for any other purpose. The question, then, was whether it should be held that in the words of s. 8(1) of the Act the respondent was caught within the prohibition directed at: "Any person who - (a) keeps or manages, or acts or assists in keeping or managing, any premises for purposes of prostitution". -- 6 of 29 -- 3 Any necessary degree of continuity which might be involved in the phrase "keeps or manages" was satisfied by the activity of the respondent in the present case. In answering the question which I have posed I should not be taken to be expressing any conclusion upon the different question which would arise if premises are used for more than one purpose but are used from time to time in the course of arranging acts of prostitution. If that question falls to be considered while the sub-section remains in its present form, it will become necessary to consider whether its fair meaning involves looking for an exclusive use, or perhaps for one which is so substantial that it carries the factual conclusion that the premises are used for those purposes in the sense of "for those rather than some other" or whether the sub-section is to be regarded as satisfied even by a keeping or managing for those purposes among a number of others which may even be more dominant. Decisions in the past established that the phrase "keeping a brothel" when used in a statute carried the same meaning as "keeping a bawdy house" ( Singleton v. Ellison [1895] 1 Q.B. 607) but it was not thought that such descriptions applied when one woman alone, as a prostitute, received a number of men into her premises at different times. When the Queensland Criminal Code was enacted, s. 231, carrying the heading "Bawdy Houses" was in this form: "Any person who keeps a house, room, set of rooms, or place of any kind whatever, for the purposes of prostitution, is guilty of a misdemeanour ...". -- 7 of 29 -- 4 R. v. Thick [1907] St.R.Qd. 198 decided in this Court that the section should be interpreted so that a place "kept for purposes of prostitution" was equivalent to keeping a "bawdy house" or "brothel". Parker v. Jeffrey, ex parte Parker [1963] Q.W.N. 32, a further decision of this Court, applied R. v. Thick to the sub-section of the Vagrants , Gaming and Other Offences Act with which we are presently concerned. The result was that a sole woman in premises, in prostituting herself there, was not guilty of an offence under the Act. The further decision in this Court in Bell v. Stuart, ex parte Bell (unreported, O.S.C. No. 10 of 1989) once more was concerned with the activities of one woman who, as a prostitute, received men in her flat. The authority of the earlier decisions was accepted, although Connolly J., in giving the reasons of the Court, stated that if the matter were res integra it would be fairly arguable that keeping a place for the purposes of prostitution was not necessarily the same as keeping a brothel. He noted the decision in Samuels v. Bosch (supra) given upon a South Australian enactment, but considered that the interpretation adopted there, which focused upon the language of the current statutory enactment rather than on historical considerations, did not justify any departure from the long-standing Queensland decisions. Subsequently, R. v. Krauskv [1990] 2 Qd.R. 177, a case in the Court of Criminal Appeal, decided that even if Thick's case is accepted on its facts it is not necessary to add a further restriction that the activities of a number of women engaging in acts of prostitution upon premises cannot make them a brothel or -- 8 of 29 -- 5 premises kept for purposes of prostitution under s. 231 of the Code unless more than one woman is present on the premises at any one time. Thus the course of decisions which would ordinarily be regarded as still binding on us holds that the activities of a lone woman in prostituting herself in premises do not result in the premises being kept for purposes of prostitution. However, if there is a plurality of women involved that difficulty for the appellant in the present case is overcome. 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 meet or even communicate at those premises? The High Court in Samuels v. Bosch (supra) provides an answer to the first part of the query just stated. The question arising in that case under s. 27 of the Police Offences Act 1953-1967 of South Australia was whether certain premises could be said to be a place where "people of opposite sexes resort for the purposes of prostitution" or a place which was "used by any woman or women for the purposes of prostitution". The Court answered the question in the affirmative when the premises were used for an escort agency business where women gathered and men visited and make arrangements with them for acts of sexual intimacy to be performed for reward away from the premises. It was thought that the element of resort or use "for the purpose of prostitution" was made out in these circumstances since the -- 9 of 29 -- 6 section did not assume that the ultimate acts of sexual intimacy would necessarily occur on the premises. In its decision in Samuels v. Bosch the Court felt itself assisted by the fact that elsewhere in the South Australian statute there were offences of accosting, soliciting and loitering in a public place "for the purpose of prostitution". Similar offences are found in s. 5(1 )(b) and (e) of our Act. Noting that the same "purpose of prostitution" was stated in these further South Australian provisions, the opinion was expressed by the Court that it could not be thought that the offences described would only be established if acts of sexual intimacy occurred in the public place. In Samuels v. Bosch the Court did not have to decide whether, if there had been no resorting by people of opposite sexes, it could still be said that the premises were used by women "for the purpose of prostitution". It did not, for example, have to consider what the position would have been if the women gathered on the premises and received telephone calls from men and in the course of them made their arrangements. This being said, I think that in deference to the High Court decision we should now accept that premises can be kept for the purposes of prostitution within s. 8(1) (a) even though no acts of sexual intimacy for reward occur there and the parties who are ultimately to be involved in the acts do not meet there, provided that the purpose of keeping the premises is to use them for arranging acts of prostitution to be carried out elsewhere by a plurality of women. -- 10 of 29 -- 7 The arguments against the conclusion which I have just stated would include these: First, the ordinary meaning of the words "keeps or manages premises for purposes of prostitution" conveys that the acts of sexual intimacy occur on the premises but, in a similar context, the High Court rejected this argument. Second, since there is some ambiguity in the relevant words the first argument is strengthened by the fact that an element of public nuisance can reasonably be thought to be involved in this offence and the related offences of soliciting and loitering yet no nuisance will occur if there are no meetings by numbers of persons and no sexual intimacy takes place on the premises and matters are handled discretely through telephone calls in a way which disturbs no one - the argument would still fail if the approach of the High Court on the similar statutory provisions is followed. Third, there is the argument that I regard as weighty, namely that the general implication which would have been taken from the authoritative Queensland decisions that borrowed the meaning of "purposes of prostitution" from notions of "brothels" and "bawdy houses", was that acts of prostitution must occur upon the premises if the offence under s. 8(1) (a) is to be committed yet, in 1931 the legislature enacted the provision in the form in which we see it and has shown no disposition since then to avoid the implication. Even this last substantial argument must be regarded as overcome by a modest extension of the approach which was taken by the High Court in Samuels v, Bosch . No Queensland case is sufficiently on all fours with the facts which the present case reveals except for O'Sullivan v. Brennan (supra) -- 11 of 29 -- 8 which is a decision of a single judge and R. v. Ludgate (supra) which, in relevant respects, contains only obiter. R. v. Krauskv (supra) speaks of confining the effect of other Queensland decisions to which I have referred. I would, then, hold that an offence under s. 8(1) (a) can occur even though no acts of sexual intimacy occur upon the premises and no meeting between the eventual participants takes place there. The evidence in the present case showed no other purpose in the keeping or the managing of the premises. I would in consequence allow the appeal. I emphasise that the answer I give assumes the involvement of more than one woman. Further, if the evidence had shown some additional or competing purpose for the keeping or managing of the premises, different questions would have arisen upon which I reserve my opinion. The order should then be made absolute and the acquittal entered on the charge under s. 8(1) (a) set aside. ‘ v -- 12 of 29 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT O.S.C. No. 20 of 1989 Before the Full Court The Chief Justice Mr. Justice Derrington Mr. Justice de Jersey BETWEEN: GWENDOLINE LUCY FERRICKS v . JACQUELINE GUZIKOWSKI Ex parte: GWENDOLINE LUCY FERRICKS JUDGMENT - DERRINGTON J. Delivered the Twenty-first day of November, 1990 CATCHWORDS : Offences - Managing premises for purposes of prostitution - Escort agency - Sexual activity and meeting of prostitutes and customers away from premises - Used only for making arrangements by telephone and keeping accounts and records - Vagrants Gaming and Other Offences Act s. 8(1) Counsel: Mr. Mr. Solicitors: M. Byrne for applicant D.K. Boddice for respondent Director of Prosecutions for applicant Goss, Downey & Carne for respondent Hearing dates: 16th and 17th October, 1990 -- 13 of 29 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN : O.S.C. No. 20 of 1989 GWENDOLINE LUCY FERRICKS v . JACQUELINE GUZIKOWSKI Ex parte: GWENDOLINE LUCY FERRICKS JUDGMENT - DERRINGTON J. Delivered the Twenty-first day of November, 1990 This is an appeal from the dismissal by a Magistrate of a charge against the respondent under s. 8(1) of the Vagrants Gaming and Other Offences Act 1931 as amended of managing premises for purposes of prostitution. The foundation of this order was that although the respondent managed the premises, there was no proof that they were managed for purposes of prostitution . There was strong evidence that the premises were used by the respondent to arrange assignations for prostitutes by means of a bank of telephones installed there, and that credit card slips and business records relating to that business were kept and dealt with at the premises which were used for no other purpose than the conduct of this business. The only issue of any real significance flowed from the circumstances that the prostitutes neither met nor engaged in sexual conduct with their customers on these premises. Upon receipt of a telephone call asking for such services, the respondent would then telephone one of the -- 14 of 29 -- 2 prostitutes on call who would attend the customer at another address, returning to the subject premises only to hand in money or credit card vouchers . The essential issue is whether the premises were used "for purposes of prostitution" if the prostitutes had no encounter or dealing with their customers there . The history of the relevant authorities authority commences with R. v. Thick (1907) St.R.Qd. 198 where it was held by a majority of this Court that a woman who was the sole occupier of a house continually resorted to by male persons and who received into her house on a certain day two persons in succession for the purpose of fornication was not guilty of an offence against s. 231 of the Criminal Code for which the elements were the keeping of premises for purposes of prostitution. However, that section had a heading "Bawdy Houses" which considerably influenced the view of the majority who relied substantially upon Singleton v. Ellison (1895) 1 Q.B. 607 which decided under the common law that the use by a prostitute of a house which she occupied for the purposes of prostitution did not constitute the offence of keeping a brothel. It was found in the earlier case that the legal acceptation of a brothel or bawdy house was a place resorted to by persons of both sexes for the purpose of prostitution. In Thick , Real J., .dissenting, acknowledged that if a woman were . the sole occupant of a house where she prostituted herself, she may not be keeping a "brothel" but he pointed out that the earlier authority did not decide whether or not she was keeping a "house for purposes of prostitution" . Correctly as it turns out, (O'Brennan v. The King 55 C.L.R. 253 -- 15 of 29 -- 3 at p. 263) he alone followed the procedure of construing the words of the Code rather than adverting to and following the earlier common law. In O'Sullivan v. Brennan, ex parte Brennan (unreported, O.S.C. No. 1 of 1988) in considering a charge similar to that in the present case and with circumstances which were similar in principle, Demack J. felt himself bound by Thick and by Parker v. Jeffrey, ex parte Parker (1963) Q.W.N. 32, which followed it and where the charge concerned a woman using her own flat for the purposes of her own prostitution. In Bell v. Stewart, ex parte Bell (unreported, O.S.C. No. 10 of 1989) the charge was similar to that in the present case but the circumstances were simply that the prostitute alone used her premises for prostitution. The above authorities were applied by the Full Court but Connolly J., who wrote the leading judgment, said:- "With all respect, if the question were res integra, it would, of course, be fairly arguable, that keeping a place for the purpose of prostitution is not the same thing necessarily as keeping a brothel." In R. v. Krausky (1990) 2 Qd.R. 177, the question was whether in order to sustain a conviction under s. 231 of the Criminal Code it was necessary to establish that two or more prostitutes were present on the premises at the same time. The Full Court held that while the decision in Thick may have been correct on its own facts, it questioned whether it was appropriate in respect of s. 231 to introduce the common law concept of "brothel" as a necessary component; and it noted Storey v. Wick (1977) W.A.R. 47, which will be discussed shortly, with approval. Thomas J. said at p. 179:- -- 16 of 29 -- 4 "The plain words of s. 231 require no more than the keeping of a house for purposes of prostitution and I would not think we are bound by the common law gloss suggested in Thick1 s case which should be regarded as an authority confined to its own facts." Connolly J. said:- "The court recently considered that it should defer to longstanding authority on s. 231 to the extent that it has been held that the use of premises by a single woman for the purpose of prostituting herself is not caught by the section. In my view, and I was a party to that decision, this line of authority should be taken no further than the facts of the decision and the question there warranted and, as my brother has said, the proper approach to the construction of the section in cases in which the court is not so constrained is to look at the language of .the section and give it its ordinary and natural meaning." In Storey v. Wick (supra) the appellant leased and occupied premises for the purpose of having an employee engage in prostitution therein for the monetary advantage of the employee and herself. Only one employee was so employed and the appellant did not engage in prostitution herself. The premises were not the home of the appellant. She was convicted of the offence of keeping premises for the purpose of prostitution. It was held that that expression was not to be equated with keeping premises as a brothel so that it was not necessary that there be prostitution by more than one woman on the premises. A person who kept premises, not his/her own home, for the purpose of the prostitution of one woman or more was "keeping premises for purpose of prostitution". At p. 54, Jones J. said:- "When construing a statute one must give its words their ordinary natural meaning. 'Prostitution' means the offering of the body indiscriminately for sexual use for reward. 'Keeping' premises, in this area of the law ..., means occupying premises for a specific purpose or purposes, or for their use for specific activities or for a defined type of activity. A woman who, as in Kiernan v. Simpson (see infra) carries on prostitution by herself in her own home is not, in the -- 17 of 29 -- 5 relevant sense, 'Keeping' those premises 'for the purposes of prostitution’ ; she is keeping them for the purpose of living in them, her prostitution being only incident to her mode of living. Here, however, the appellant kept the premises in question - i.e. she leased and occupied them - for the purpose of having an employee engage in prostitution therein, for the monetary advantage both of the employee and herself. In plain ordinary language, she kept the premises for the purposes of prostitution." Further light was thrown on the matter by an earlier case in the High Court, Samuels v. Bosch (1972) 127 C.L.R. 517 where it was held that the meaning of "brothel" which was defined by the relevant legislation as "any premises - (a) to which people of opposite sexes resort for the purpose of prostitution; or (b) occupied or used by any woman or women for the purpose of prostitution", was not limited to a place where sexual intercourse for money actually takes place but includes premises to which men and women resort for the purpose of arranging sexual intercourse for money elsewhere than at the place of meeting. As in the present case, the establishment there enjoyed the euphemism of an escort agency, though there was a difference, the significance of which will be discussed shortly, in that in the present case the prostitutes and their customers did not resort to the subject premises in order to meet and make the necessary arrangements. The respondent here, perhaps in conformity with the trade description implicit in the name of her business, "A Touch of Class", and no doubt intimately acquainted with Samuels v, Bosch indulged in the refinement of deflecting any such meetings away from the premises themselves. In Samuels v. Bosch , Barwick C.J., at p. 518, noted that the natural meaning of the words of the section should not be restrained by any notion as to what may have constituted a -- 18 of 29 -- 6 brothel at common law. Similarly, Menzies J., at p. 521, regarded the words of the statute creating the offence as clear so that he found it unnecessary to consider the common law view of what was necessary to constitute a brothel. Gibbs J. (as he then was), with whom Walsh J. agreed, took the same approach at p. 523. In holding that the words in their ordinary and natural meaning applied to that case, he said that either limb of the definition would be applicable because the house was a house to which both men and women resorted and it was also a place which women used; and because they did so for the purpose of meeting men and arranging to accompany them to some other place for sexual intercourse for payment, that was therefore for the purpose of offering themselves for sexual intercourse in return for payment which was the meaning of the word "prostitution". Learned counsel for the defence argued that the purpose of legislation of this kind is the prevention of public nuisance created either by the use of premises by a number of people for prostitution or even by the congregation of persons in a place for that purpose though the sexual activity should occur elsewhere. Consistently with this he attempted to distinguish Samuels v. Bosch by demonstrating that the judgments in the High Court all referred to the resort to the premises by the prostitutes and their customers which occurred in that case; and he claims that as a mark of distinction from the present case where such activity did not occur. However, this reasoning misses recognition that by the definition quoted above the legislation itself required that the premises should be those "to which people of opposite sexes resort for the purpose of -- 19 of 29 -- 7 prostitution" . Accordingly it was necessary for the court to require those circumstances as the context within which the purpose was to be considered. It was not the case that such circumstances were essential to the purpose which was to be determined. There is of course in the present case no such element apart from the purpose. It might also be noted that the second leg of the definition, i.e., "any premises - ... (b) occupied or used by any woman or women for the purpose of prostitution", was also adverted to by Gibbs J. and, as it has been observed, he noted as a separate factor that the premises were used by the women for the purposes of prostitution, their meetings with the customers being no more than the particular nature of the use which happened to be the case there. Apart from that which formed part of the first leg of the definition, it was never suggested that there should be any exclusivity in a requirement that the parties should meet at the premises in that way. While it is true that no act of prostitution took place upon the premises, the whole purpose of the operation conducted there was to promote the opportunity for prostitution to take place, albeit at another location. The significance of this in the present case is obvious. The word "purpose" is said by the Oxford English Dictionary to mean, inter alia, "the object for which anything is done . . . or for which it exists; the result or effect intended or sought; end, aim". In that case, prostitution was clearly the purpose for which the premises were kept and managed. Indeed, it was their only purpose. For this reason, it is, as Gibbs J. noted in Samuels v. Bosch at p. 524 unnecessary to express any view as -- 20 of 29 -- 8 to whether consequences implicating persons in less clear situations would flow from this view. It is enough to observe that a distinction may still be drawn in the case of a woman who uses her own premises for acts of prostitution. The view that she keeps such premises to live in and that the acts of prostitution are merely incidental to this is valid and consistent with the principle applied in the present case. It then becomes a practical test as to whether one of the purposes for the keeping of the premises is prostitution or whether in all the circumstances that is merely an incidental use rather than part of the purpose. In the result the acquittal of the respondent should be set aside and the respondent should be convicted. The matter should be remitted to the Magistrate to enter all necessary adjournments and to proceed to deal with the matter according to law. -- 21 of 29 -- IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 20 of 1989 Before the Full Court The Chief Justice Mr. Justice Derrington Mr. Justice de Jersey BETWEEN: GWENDOLINE LUCY FERRICKS v. JACQUELINE GUZIKOWSKI Ex parte: GWENDOLINE LUCY FERRICKS JUDGMENT - de JERSEY J. Delivered the 21 st day of November, 1990 CATCHWORDS: Assist in managing premises for purposes of prostitution - escort agency - respondent answering telephone calls from prospective male customers and arranging meetings elsewhere with prostitutes - no need for acts of prostitution to occur at premises - sufficient if arrangements made there in contemplation of acts of prostitution occurring elsewhere - s. 8(1) Vagrants, Gaming and Other Offences Act. Counsel: M. Byrne for applicant D.K. Boddice for respondent Solicitors: Director of Prosecutions for applicant Goss Downey and Carne for respondent Hearing dates: 16th and 17th October, 1990 -- 22 of 29 -- IN THE SUPREME COURT OF QUEENSLAND O.S.C. No. 20 of 1989 BETWEEN: GWENDOLINE LUCY FERRICKS v. JACQUELINE GUZIKOWSKI Ex parte: GWENDOLINE LUCY FERRICKS JUDGMENT - de JERSEY J. Delivered the 21st day of November, 1990 This is the return of an order nisi to review the decision of a Stipendiary Magistrate dismissing a charge brought against the respondent under s. 8(1) (a) of the Vagrants, Gaming and Other Offences Act, 1931 as amended. The charge was that on 27th January, 1989, the respondent assisted in managing premises at 331 McLeod Street, Cairns known as "A Touch of Class" for purposes of prostitution. "A Touch of Class" was the name of an escort agency which operated from those premises. Men seeking services of prostitutes would telephone its number, which was advertised in the local telephone directory. On the evening in guestion, the respondent was engaged in answering the telephone. Three civilian clients of the escort agency, and two police officers, gave evidence before the Magistrate of telephoning the number that day and requesting to meet with an escort. The person answering the telephone, who one infers was the respondent, telephoned back the men at their motels or hotels, and arranged -- 23 of 29 -- 2 for an escort to visit them. The civilian clients gave evidence of acts of sexual intercourse upon payment of a fee following the arrival of the escorts at their respective rooms. The police officers gave evidence of acts of preparation for sexual intercourse for financial reward. Clients paid for the services by credit card, the escort agency using the name "Coral Sea Catering" . The respondent's role was to answer the telephone initially, telephone the prospective client back to make the arrangement, dispatch the escort to the client's hotel room, and generally look after the escort agency premises. That included receiving money from one of the escort ladies that evening. At the premises, a police officer located booking sheets, credit card vouchers, condoms and lubricants in a bedroom, and a cash book and other "paraphernalia of prostitution" in the hand bag of one of the escort ladies who was present there. The respondent was authorised to operate the trading account of "Coral Sea Catering". I have taken these circumstances from the Magistrate's decision, which included the findings that the respondent admitted that the business of "A Touch of Class" was that of an escort agency and that she was employed "looking after the place" . The Magistrate found that the respondent was connected with the financial side of the escort agency because of her possession of credit card authorisations and her being authorised to operate its trading account. He also found that "certain women working as prostitutes ... (could) be summoned by phoning the listed number of 'A Touch of Class'." That is what happened -- 24 of 29 -- 3 this evening while the respondent was looking after the establishment, and she arranged the encounters which took place elsewhere. One may say that she did so on behalf of the escort ladies concerned. Section 8(1) (a) of the Act, under which the respondent was charged, provides, as relevant: "8. Keepers of premises for purposes of prostitution, etc. (1) Any person who - (a) Keeps or manages, or acts or assists in keeping or managing, any premises for purposes of prostitution; shall be liable ..." (and goes on to specify penalties ) In dismissing the complaint, the Magistrate referred to an unreported decision of Demack J. on 3rd January, 1989, O'Sullivan v. Brennan (O.S.C 1/88, Rockhampton), where, having considered Singleton v. Ellison (1895) 1 Q.B. 607, 608, R . v . Thick (1907) St.R.Qd. 198 and Parker v. Jeffrey (1963) Q.W.N. 32, His Honour concluded that under s. 8(1) (a), "proof that premises were kept for the purposes of prostitution requires proof that the premises were resorted to by persons of both sexes for the purposes of prostitution". The Magistrate was urged on behalf of the prosecutor, and in light of the High Court's approach in Samuels v. Bosch (1972) 127 C.L.R. 517, to hold that a man could "resort" to the premises by means of the telephone. But the Magistrate properly felt constrained by authority to dismiss the complaint. The issue in this Court is whether on the uncontradicted evidence before the Magistrate - which he accepted, and which -- 25 of 29 -- 4 led to the findings I have summarised above - one should conclude that the respondent assisted in managing the premises for purposes of prostitution. There is no doubt that the respondent assisted in managing the premises. Did she do so "for purposes of prostitution", within the meaning of s. 8? Consistently with the evidence and the findings of the Magistrate, the purpose of what the respondent did was to arrange meetings between prostitutes and male customers with sexual favours for a fee the expected outcome. What she did was therefore "for purposes of prostitution". It is true that the sexual acts of prostitution did not occur at the premises which she helped manage. But nevertheless the only purpose of her activity at those premises was to arrange or facilitate the meetings elsewhere which involved acts of prostitution, as was intended, and her acts at those premises should therefore be regarded as done "for purposes of prostitution". The aim or object of what the respondent did was prostitution. The decisions in R. v. Thick and Parker v. Jeffrey , which led to Demack J.'s conclusion in O'Sullivan v. Brennan upon which the Magistrate relied here, should not determine or influence the outcome of these proceedings. As observed very recently by the Court of Criminal Appeal in R. v. Krausky (1990) 2 Qd.R. 177, 179, those cases should now be regarded as authorities confined to their own facts, that is, as concerned only with the situation of a lone woman who prostitutes herself in her own premises. One should not, from those case, conclude that premises are used "for purposes of prostitution" only if the acts of prostitution occur on the premises, and with more -- 26 of 29 -- 5 than one prostitute present at the one time. Those cases are factually distinct from this one, and establish no principle which governs this one. In interpreting the words of s. 8(1) (a), "assists in ... managing . . . premises for purposes of prostitution" , one should give the language its ordinary and natural meaning. See R. v . Krausky, supra, p. 179 and Samuels v, Bosch , supra, p. 523. I have already said that that language covers what the respondent did here. The respondent may be considered as managing premises "for purposes of prostitution" even though the sexual acts involved in the prostitution occur elsewhere. As noted in Storey v. Wick (1977) W.A.R. 47, 53, the words "keeps premises for the purposes of prostitution" cannot be equated with "keeps premises as a brothel". Connolly J. made a similar observation in Bell v. Stewart (1989) 43 Aust.Cr.Rep. 400. Once one acknowledges that the sexual acts of prostitution may occur elsewhere, then for present purposes it is sufficient, to assist in managing premises "for purposes of prostitution", that from those premises one assists in arranging the meetings which lead to the acts of prostitution, it being understood that such acts are the purpose or likely outcome of the meetings. There is no previous decision of this Court which governs the outcome of this case. There are statements which amount to obiter dicta in R. v, Ludgate (C.A. 151/88), an unreported decision of the Court of Criminal Appeal given on 9th September, 1988, to the effect that in circumstances like these premises are not to be regarded as kept for purposes of prostitution. But the authorities offered - Strath v, Loxon (1956) 1 Q.B. 67, -- 27 of 29 -- 6 72, Donovan v. Gavin (1965) 2 Q.B. 648, 657-660 and Storey v. Wick, supra - do not, with respect, support that observation. The English cases were concerned with whether premises constituted a brothel, which is not the question here, and the West Australian case, Storey v. Wick , was concerned with quite different facts from those of the present case, and says nothing which supports the view offered in Ludgate . My approach does however gain substantial support from Samuels v. Bosch, supra. The High Court was there concerned with s. 27 of the Police Offences Act of South Australia which defined a "brothel" to mean "any premises - (a) to which people of the opposite sexes resort for the purpose of prostitution; or (b) occupied or used by any woman or women for the purpose of prostitution". The ratio of the case is that persons who resorted to the premises for the purpose of arranging prostitution resorted there for the purpose of prostitution, whether the acts of prostitution occurred on the premises or not. Both Barwick C.J. (p. 519) and Gibbs J. (p. 523) (with whom Walsh J. agreed) held that a woman used the premises for the purpose of prostitution by arranging there with the man for an act of prostitution which was to occur elsewhere. In the present case, the prostitutes acted through the respondent as their agent. It does not in principle matter that the men made their arrangements with the agent of the prostitutes by means of the telephone. In the course of that telephone contact, consistently with Samuels v. Bosch , the premises were being used for purposes of prostitution. Insofar as the nature of the proposed activity might not have been spelt out over the -- 28 of 29 -- 7 telephone, it would be naive to ignore the obvious, implicit understanding that sexual acts for monetary reward were contemplated, and the Magistrate's findings are consistent with that view. I would make absolute the order nisi for review, set aside the acquittal of the respondent, and remit the proceedings to the Magistrate so that he might enter up all necessary adjournments, convict the respondent on this charge, and otherwise proceed in accordance with law. I would make no order as to the costs of the proceedings. -- 29 of 29 --