IN THE COURT OF APPEAL [1994] QCA 005 SUPREME COURT OF QUEENSLAND Appeal No.411 of 1993 Before The President Mr Justice Davies Justice White [Kelsey and Mansfield v. Hill] BETWEEN: MICHAEL STUART KELSEY and PETER JOHN MANSFIELD (Respondent) and DESLEY WENDY HILL (Appellant) The President Mr Justice Davies Justice White Judgment delivered 10/02/94 Judgment of the Court APPEAL DISMISSED CATCHWORDS:CRIMINAL LAW - Prostitution - appellant found on premises - "without reasonable excuse" - being a prostitute not a reasonable excuse - S.229I Criminal Code Counsel: Solicitors: Mr. K. Dorney Q.C. for the appellant Mr. Byrne Q.C. for the respondent Boe Feeney Hogan for the appellant Director of Prosecutions for the respondent Hearing Date: 03/02/94
2 REASONS FOR JUDGMENT - THE COURT Judgment delivered 10/02/94 The appellant has appealed against her conviction on 1 October 1993 of an offence against section 229I of the Criminal Code. The appellant and another woman were charged conjointly that, on 22 June 1993, each was without reasonable excuse found in a place suspected on reasonable grounds of being used for the purpose of prostitution by two or more prostitutes. Each elected summary trial and pleaded not guilty but was convicted and fined by the presiding magistrate. In her notice of appeal and written submissions, the appellant challenged the magistrate's findings in relation to each element of the charge, but little was said in oral argument except in relation to one matter, which is discussed below. As to the other points, it is sufficient that we say that the magistrate's findings were not only available on the evidence but all but inevitable. The point which remains for consideration is whether the appellant was in the place where she was found "without reasonable excuse". The prosecution accepted the onus of proving an absence of "reasonable excuse". The appeal was conducted by both sides on the basis that each woman was in the place in question, a house at Bowen Hills, for the purposes of prostitution. The issue for appeal is whether that provided a reasonable excuse for the appellant being there. Section 229I of the Criminal Code is contained in Chapter 22A "Prostitution", which was inserted into the Code in 1992 by the Prostitution Law Amendment Act of 1992 (No.65 of 1992). Various sections in Chapter 22A provide for offences; procuring another person to engage in prostitution (s.229g), knowingly participating, directly or indirectly, in the provision of prostitution by another person (s.229h), knowingly allowing premises in which a person is interested to be used for the purposes of prostitution by two or more prostitutes (s.229k) and knowingly causing or permitting a person who is not an adult or is an intellectually impaired person to be at a place used for
3 the purposes of prostitution by two or more prostitutes (s.229l). It was not submitted for the prosecution that the appellant contravened any of these provisions or committed any offence except against s.229i, which so far as presently material provides: "(1) A person who, without reasonable excuse, is found in, or leaving after having been in, a place suspected on reasonable grounds of being used for the purposes of prostitution by 2 or more prostitutes commits a crime." The argument for the appellant started with the premise, conceded by the prosecution, that engaging in prostitution (s.229e) is not in itself unlawful. Nor is engaging in prostitution in a place being used for the purposes of prostitution by two or more prostitutes directly and expressly proscribed. The only offence in such circumstances is that provided for by s.229i, that is, being "found" in (or leaving) such a place, and even that offence is incomplete until it is proved that the person so "found" had no reasonable excuse for being "found" in that place (or leaving there). Although expressed in a variety of ways, the essential submission for the appellant was that, since the reason why the appellant was in the place where she was found was lawful, or not unlawful, she had a reasonable excuse for being there. A parallel submission related to the alternate limb of ss.229(1) would be that, if the reason why an accused was leaving a place being used for the purposes of prostitution by two or more prostitutes was not unlawful, he or she would have a reasonable excuse for leaving. On any view, this alternative aspect of ss.229i(1) raises obvious difficulties for the prosecution, since it seems to direct attention not to the reason why a person charged was in a place used for the purposes of prostitution by two or more prostitutes but to the reason for leaving there. Putting that to one side, the corollary of the appellant's submission is that, to prove absence of reasonable excuse under s.229i, the prosecution must establish that a person charged with a contravention of that section was in the place where he or she was found for an illegal purpose. Leaving aside such
4 offences as murder, theft, etc., this would require proof of an offence against one or other of sections 229G, 229H, 229K or 229L. Although not a determinative consideration, it was pointed out for the prosecution that it would be a curious result if a breach of section 229I could only be established by proof of a contravention of one of the other provisions of Chapter 22A. The prosecution also relied on the Explanatory Notes laid before, or given to, the members of Parliament relating to the Bill which led to the insertion of Chapter 22A into the Criminal Code. Relevantly, the note to s.229i provided: "The offence applies to clients, prostitutes and 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...." Those Explanatory Notes are "extrinsic material" for the purposes of s.14b of the Acts Interpretation Act 1954 as amended which, so far as may now be material, provides: "Use of extrinsic material in interpretation 14B.(1) 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. (2) 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.... "ordinary meaning" means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act."
5 However, there are limits to the operation of such a provision. In particular, the language of extrinsic material cannot be substituted for the text of a statute and it remains the function of the Court to give effect to the will of Parliament as expressed in the enactment. This is especially so where an intention disclosed by extrinsic material which is unexpressed in an Act is restrictive of the liberty of the individual: Re Bolton; ex p. Beane (1987) 162 CLR 514, 518 per Mason C.J., Wilson and Dawson JJ. See also Catlow v. Accident Compensation Commission (1989) 167 CLR 543, 549-550 per Brennan and Gaudron JJ. Similarly, a strict construction is required of a penal statute or a statute affecting the personal liberty of the subject (Smith v. Corrective Services Commission (N.S.W.) (1980) 147 CLR 134, 139), at least if the enactment is ambiguous: Waugh v. Kippen (1986) 160 CLR 156, 169. The essential task of this Court is to give effect to a sufficiently plain legislative policy. In MacAlister v. R. (1990) 169 CLR 324, the High Court in a joint judgment quoted with approval the following passage from the speech of Lord Reid in Luke v. Inland Revenue Commissioners (1963) AC 557, 577: "The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail." A general legislative policy against the use of premises for prostitution by two or more prostitutes is evident in ss.229i and 229K (and to a lesser extent in s.229l). Although not spelled out with desirable clarity, it is implicit in s.229i, taken in the context of Ch.22A, that its object is to prevent or penalise the use of premises for prostitution by two or more prostitutes. That being so, prostitution cannot sensibly provide a reasonable excuse for being on premises in such circumstances. The