Coleman v DPP

COUNSEL : Plaintiff - in person P I Lakatos - for defendant Plaintiff in person

Director of Public Prosecutions SOLICITORS : 265 Castlereach Street SYDNEY N S W 2000

CATCHWORDS : Criminal Law - Prostitute - Solicit Summary Offences Act, 1988 LEGISLATION CITED : Vagrancy Act, 1902 Summary Offences Act, 1970 Jitjarden v Thompson (1995) 38 NSWLR 611 Fingleton v Bryson (1980) 265 ASR 280 Newman v Paties (1979) Qd. R 402 Weisz v Monahan (1962) WLR 262 Behrendt v Burridge (1976) 1 WLR 29 Smith v Hughes (1960) 1 WLR 830 CASES CITED : Hutt v The Queen (1978) 82 DLR (3d) 95 Reg v Roland (1976) 27 ccc (2D) 435 Perre v Apand Pty Ltd (1999) 73 ALJR 1180 Beckwith v R (1976) 12 ALR 333 Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad [1976] 136 CLR 529 Canadian National Railway Co v North Pacific Steamship Co (1992) 1 SCR 1021 Walter v State of New South Wales (Supreme Court Unreported 15 March 2000) DECISION : Summons dismissed; Conviction affirmed.; Plaintiff to pay costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No: 12693/99 - SHANNAN LEE COLEMAN v DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT HIS HONOUR: INTRODUCTION 1 On 18 October, 1999 the plaintiff, Shannan Lee Coleman, was convicted in the Local Court at the Downing Centre, Sydney of soliciting another person for the purposes of prostitution contrary to the provisions of S.19(1) of the Summary Offences Act, 1988. From that conviction, the plaintiff has appealed in accordance with S.104(1)(a) of the Justices Act, 1902 on the ground that the magistrate erred in law in his interpretation of the word "solicit" and its application to the facts of the case. 2 There had been a number of complaints concerning persons plying their trade as prostitutes within sight of a school situated in Forbes Street, Darlinghurst. As a consequence, the New South Wales Police Service assigned undercover police officers in plain clothes and using unmarked cars to the area. Constable Mourlas was one such officer. On the night of 24 June, 1999, Constable Mourlas drove to Forbes Street, Darlinghurst within view of the SCEGGS boarding school in an unmarked police vehicle. Seeing the plaintiff on the footpath, he drew his vehicle to the kerb some three metres further down the street from her. Thereupon, the plaintiff walked down the street to the car, approached the open passenger window, lent on the door and asked the constable "Do you want to have some fun?" The response from the constable being in the affirmative, the plaintiff opened the passenger door, got into the vehicle, sat beside the officer and quoted him prices at which she would engage with him in various sexual acts up to full intercourse. She also told him where this could take place and the maximum time allowed for the prices quoted. Constable Mourlas then drove not to the place the plaintiff had nominated, but to a place where his sergeant was. There the plaintiff was arrested and later charged at Kings Cross Police Station. 3 The plaintiff did not dispute that she was in Forbes Street. Whilst she did not formally concede that the place where she was in that street was within view of SCEGGS boarding school, it was not contested that it was and that fact was found adversely to the plaintiff by the magistrate. Although there was some dispute in cross-examination as to the colour of certain of the garments that she was wearing, the plaintiff did not give any evidence to negate the evidence given by the police officer and it is clear from the photograph tendered and other evidence that the top portion of the clothing she was wearing under a cardigan was of light, virtually see-through material and exposed a good deal of the upper part of her body, including the breast area. Before the magistrate and before the court, she said that her defence "hinged on the interpretation of 'solicit' ". Her actions and the conversations in which she engaged did not, so she argued, amount to soliciting. 4 The plaintiff's case was that soliciting involves persistence, pestering, pressure, importuning and the like. Further, that as there was "only a simple request" on her part, her actions did not amount to soliciting, indeed, she submitted that for there to be soliciting there must be actions that give rise to a problem of public order and that what she did, did not respond to these descriptions and hence did not constitute soliciting. 5 Section 19 of the Summary Offences Act 1988 provides:

"(1) A person in a road or road related area shall not, near or within view from a dwelling, school, church or hospital, solicit another person for the purpose of prostitution. Maximum penalty: 6 penalty units or imprisonment for three months. (2) A person shall not, in a school, church or hospital solicit another person for the purpose of prostitution. Maximum penalty: 6 penalty units or imprisonment for three months. (3) A person shall not, in or near, or within view from a dwelling, school, church, hospital or public place, solicit another person, for the purpose of prostitution, in a manner that harasses or distresses the other person. Maximum penalty: 8 penalty units or imprisonment for three months. (4) The provisions of this section are in addition to and do not derogate from, any other law (including s.4)." 6 The matter for determination is the meaning of solicit as used in S.19(1) of the Summary Offences Act. In order to determine this it is appropriate to look at the dictionary meanings and derivation of the word , the legislative history of the provision, the form and structure of S.19 as a whole, and a number of decided cases concerning the meaning given to the word when used in statutes in pari materia. SOLICIT - DICTIONARY MEANING - DERIVATION 7 In seeking enlightenment as to the meaning of a provision by reference to its legislative history, I am conscious of the dictum of Mason J in Beckwith v R (1976) 12 ALR 333 that : "Resort to the history of a statute all too rarely illuminates the meaning of the current provisions" (at 340). 8 However the legislative history of S.19(1) of the Act may be of some assistance in the interpretation of the section in the present Act. 9 Prima facie an ordinary English word in a statute is to be given its appropriate ordinary English meaning. The word solicit has a number of possible meanings, depending on the context. The plaintiff, who argued the matter in person with skill , determination and persistence, put before the Court a number of dictionary meanings of solicit. The first was the American Dictionary of the English Language. This dictionary is in a form somewhat different from that of Australian and English dictionaries. It does not include any specific reference to the meaning of solicit in the context of prostitution, but does indicate that the meaning of solicit is: "to ask with some degree of earnestness; to make petition to; to apply to for obtaining something. This word implies earnestness in seeking, but I think less earnestness than beg, implore and importune, and more than ask or request." 10 The plaintiff then referred to the New Shorter Oxford Dictionary which listed a number of meanings. One is "entreat, petition, urge (a person); ask earnestly or persistently"; another, related to prostitution, is "accost a person and offer oneself or another as a prostitute". Her next reference was to Webster's 9th New Collegiate Dictionary from which she referred to the word accost as meaning "to approach and speak to, often in a challenging or aggressive way" (Italics added). This was done because in the Oxford Pocket Dictionary (her next reference) , the word solicit is defined to include "accost as a prostitute". It is to be noted that in this Webster's Dictionary definition, the manner of the approach and speaking are only a frequent, nor a necessary, accompaniment. The necessary elements are approaching and speaking to. 11 No reference was made by the plaintiff to any of the following dictionary meanings:

(1) The Macquarie Dictionary (2nd Edition, 1991) gives solicit a particular meaning in relation to prostitution namely, "to accost (another) with immoral intention as a prostitute".

(2) The Oxford English Dictionary (2nd Edition, 1989) gives two meanings appropriate in the context of prostitution: "Of women: to accost and importune (men) for immoral purposes"; "to tempt, entice, allure, to attract or draw by enticement". One of the examples given in respect of the first mentioned meaning is a reference to a person who "persistently solicited in a public place." This would suggest that, unless the authors of the Oxford English Dictionary used an oxymoron (which is unlikely for authors of such dictionary), the word solicit per se, i.e. when used alone, does not necessarily involve any sense of persistence. The same dictionary relevantly defines "importune" as "to solicit for purposes of prostitution". Accosting in the sense of approaching and offering the services usual for a prostitute, is the primary or essential meaning in this dictionary, with a linked appropriate meaning which involves allurement, enticement and the like.

(3) In the Australian Concise Oxford Dictionary (1986) solicit, when used as a verb, has as the relevant meaning "to invite or make appeals to or to importune".

(4) In Collins Concise English Dictionary (Australian Edition, 1984), solicit is given the meaning "make a request, accost with an offer of sexual relations in return for money". (5) Chambers English Dictionary (1988) relevantly defines solicit as "to invite to immorality" and ("of prostitutes") "the making of advances".

(6) In Webster's Third International Dictionary (1976) the meaning appropriate to the context of prostitution is "to accost (a man) for immoral purposes." Accost is defined as "to approach and speak to." 12 Soliciting is not restricted to prostitutes. A person may solicit a bribe. The word solicit is derived from the Latin verb "sollicitare". When used in relation to bribes it bears the meaning "seek to obtain": thus sollicitare iudicium donis (Ovid). There is no need for persistence or like behaviour. Furthermore, authority indicates that a mere request for a bribe is sufficient to constitute a solicitation. Putting one's hand out in a particular way in appropriate circumstances can amount to soliciting i.e. seeking to obtain, a bribe. A person may solicit alms. This may be done by actually asking for money, or by sitting or standing on the pavement with a bowl , saucepan or equivalent receptacle and either holding it out to passers by or so placing it that there is an invitation to put money in it. This may or may not be accompanied by words. If words are used they may be no more than "Spare some change"? "Can you help me?", or equivalents. Neither the acts nor the words need be persistent, repetitive or aggressive. Indeed, this is highlighted by the fact that in some American States where, to introduce an element of persistence or aggression into such begging offences, aggressive pan-handling is required - a reference to a saucepan being held by the handle and extended to the potential donor. 13 Having examined these various dictionary meanings, I am of opinion, that the ordinary dictionary meaning of solicit in the context of prostitution in this day and age involves a personal approach for the purpose of, or which is accompanied by, or which constitutes or conveys, an offer that some form of sexual activity will be engaged in by the person making the approach in return for monetary gain. The approach need not be aggressive persistent, pestering, or repeated nor is it necessary that it should constitute an annoyance to the person approached. LEGISLATIVE HISTORY 14 The original equivalent legislative provision in New South Wales was in the Vagrancy Act, 1902, S.4: "4(1) Whosoever - …… (i) being a known prostitute solicits or importunes for immoral purposes any person who is in any public street thoroughfare or place;"

commits an offence. 15 The inclusion of importunes in S.4(1)(i) of the Vagrancy Act, 1902 indicates that solicits in that section involves something different from and less than importunes. In my opinion, solicit in that section of that Act conveys no sense of persistence, pestering or pressure. 16 The Vagrancy Act, 1902 was repealed by the Summary Offences Act, 1970 (No.96 of 1970) and S. 4(1)(i) was replaced by s.28 of that Act, which was in the following form: "A person who - (a) for the purposes of prostitution solicits another person who is in or near a public place; or (b) for the purpose of prostitution loiters in, near or within view of a public place, is guilty of an offence." 17 The offence created by s.28(a) deals with an active approach by the prostitute; that created by s.28(b) deals with passivity, which may result in the customer making the approach. 18 After some intermediate changes in the law, the present day equivalent of S.4(1)(i) of the Vagrancy Act, 1902 was enacted as S.19 of the Summary Offences Act, 1988. 19 In his Second Reading speech on the Summary Offences Bill (1988) in the Legislative Assembly, the Attorney General indicated that the provisions then introduced were intended to restrict the places in which prostitutes could openly ply their trade and so protect members of the public. 20 From the forgoing it can be seen that there is nothing in its legislative history to suggest that in S.19 of the Summary Offences Act, 1988 the word solicit is used with a meaning different from its ordinary dictionary meaning as determined above. Indeed, the legislative history tends to support such a meaning. THE FORM OF THE STATUTE 21 Sections 19(1) and (2) appear to be directed at protecting schools, churches and hospitals from the problems associated with prostitutes disporting themselves in the street within view of such places and approaching people for the purposes of their trade. The fact that S.19 uses the word solicit rather than the rubric that had been used in the Vagrancy Act, 1902 namely, "solicits or importunes", in my opinion suggests that, whilst soliciting may include importuning, it is not necessary that there be any importuning in order to constitute soliciting under the new section. This conclusion is reinforced by the form of s.19(3). 22 The offence created by s.19(3) carries a heavier penalty than the offence created by S.19(1). But, additional elements need to be proved in order to establish an offence under S.19(3). Soliciting is still necessary but it must be soliciting which is carried out in a manner that harasses or distresses the person solicited. The addition of the requirement that there be harassment of or distress to the person solicited would be unnecessary if soliciting itself necessarily required an element of persistence, pestering, pressure, importuning, annoyance or the like. Such elements would undoubtedly evidence harassment. They may also give rise to distress in the person solicited in such a manner. 23 In my opinion s.19(3) is a clear indication of legislative intent that when used in s.19 the word solicit per se, does not require anything in the nature of persistence, pestering, pressuring, annoying, aggression, importuning or the like. 24 The form of the statute therefore, does not suggest that solicit, as used in s.19(1) has other than its ordinary dictionary meaning, as determined above. PREVIOUS DECISIONS 25 The plaintiff has submitted that the court is constrained by authority to find that her actions did not constitute soliciting. It is therefore necessary to examine a number of the decided cases that deal with soliciting in the context of prostitution. 26 Physical presence is an element. The prostitute who solicits must be able to be seen by the potential customer (Weisz v Monahan (1962) WLR 262. In that case it was held that a prostitute who displays an advertisement in a public street indicating that she is available for any one who desires her services does not thereby solicit. Lord Parker CJ, with whom Ashworth and MacKenna JJ agreed, said: "I am quite satisfied that soliciting … involves the physical presence of the prostitute and conduct on her part amounting to an importuning of prospective customers." (at 263) 27 The facts of the case clearly indicate that importuning, in the sense used in the judgment, does not involve other than the prostitute in person making known that she is available to engage in sexual activity for money. The reference in the judgment to Smith v Hughes (1960) 1 WLR 830 demonstrates this. In that case the prostitutes' method of soliciting was to stand on a balcony at first floor level, attract the attention of passing men by tapping on the balcony railing and then invite them to come inside the premises by such words as "would you like to come up here a little while". This was held to constitute soliciting. Clearly there was no question of persistence or pestering or pressure or annoyance involved in that means of solicitation. The decisions in both these cases would comprehend the actions of the plaintiff in the present case as soliciting. 28 The decision in Behrendt v Burridge (1976) 1 WLR 29 is to a like effect. There the solicitation consisted of a female sitting in a bay window, provocatively or scantily dressed and illuminated by a red light. This was held to be "soliciting in the sense of tempting or luring prospective customers" (at 33). Persistence, pestering, pressure, annoyance, aggression or repetition were not necessary. Boreham J., with whom Lord Widgery CJ and Donaldson J agreed, said that: "… applying what I accept is a word of common usage to the facts that the Justices found in this case, there clearly was solicitation. Perhaps one may approach the matter thus. If one asked the question of the ordinary passer by 'what is that young woman doing in that window, in that garb, in that light, in those circumstances?' one ventures to suggest the clear answer would have been, though perhaps not in these precise words, 'she is soliciting for prostitution' ." 29 A like type of question asked in relation to the actions of the plaintiff at the relevant time on 24 June, 1999 in Forbes Street would, in my opinion, evoke a like answer. 30 In Newman v Paties (1979) Qd R 402 Lucas J, in considering what soliciting for the purpose of prostitution involved, said: "Mr Moynihan has drawn our attention to the definition of "solicit" given in the Concise Oxford English Dictionary, and to that I would add one of the definitions contained in the Shorter Oxford English Dictionary which in the relevant sense defines it as"to accost and importune (men) for immoral purposes." These definitions show that in order to constitute soliciting by a woman there must be an active approach from the woman who is charged with the offence." (at 403; italics added). 31 Persistence, pressure, repetition or the like were not necessary elements under the law of soliciting in Queensland. Clearly the actions of the plaintiff in the present case would fall within the "active approach" referred to by Lucas J. 32 In Fingleton v Bryson (1980) 26 SASR 208 Jacobs J had to consider the meaning of solicit in s.25 of the Police Offences Act of South Australia. That section made it an offence if a person "accosts or solicits any person for the purpose of prostitution." The prostitute in that case inserted an advertisement in a newspaper advertising her services. A police officer responded to the advertisement and arranged to meet in order to have sex with her. The arrangement involved the police officer meeting the prostitute outside an hotel. The meeting took place and price and other details were discussed a little later over a drink in the hotel bar. In holding that this did not amount to soliciting, Jacobs J referred with approval to Behrendt v Burridge (supra), and expressed the view that the word solicits as used in the South Australian legislation was influenced in its meaning by its association with the word "accosts". He decided that in order for it to constitute soliciting "the conduct must amount to an invitation to other persons going about their business to avail themselves of the services of the prostitute". (supra at 212). 33 Again, persistence, pestering, pressure, repetition or annoyance were not necessary elements of soliciting under the law of South Australia. 34 In Jitjarden v Thompson (1995) 38 NSWLR 611, Allen J considered s.16 of the Summary Offences Act 1988, which made it an offence for a person to use certain premises for the purposes of soliciting for prostitution. Allen J held that while soliciting may commonly convey an element of pestering or flaunting, it does not necessarily involve such an element. In that case an undercover police officer went into a massage parlour , was told the price of a massage, inquired what it included. The female he was addressing then asked him if he wanted to pay more and he indicated he did. Thereupon she asked him if he wanted "the full service". He asked what that included and she responded that for a higher nominated price "you get sex". When he asked if she provided the sex she said she did. Allen J held that : "The offering of those services in those circumstances constituted soliciting for prostituting within the meaning of s.16" 35 Allen J. did not find that any element of persistence, pressure, pestering, repetition or annoyance was necessary for soliciting. In my opinion, this is correct. 36 Section 16 is in Part 3 of the Act as is Section 19. Part 3 is concerned with prostitution and Ss.16 and 19 are the only sections in Part 3 that use the words solicit or soliciting. It would be curious if words describing the same activity were to be used in different senses within the same part of the Act. Such an approach to the construction of the Act would be adopted only if required by the form of the Act itself (see for example S.60 I of the Limitation Act 1969; Walter v. State of New South Wales unreported 15 March, 2000). The form of Part 3 of the Summary Offences Act, 1988 does not suggest that there should be any difference in the meaning of solicit in the two sections; indeed to the contrary. 37 A more restrictive view of the meaning of solicit was taken by the Ontario Court of Appeal in Reg. v. Roland (1976) 27 CCC (2d) 435. In that case, the defendant sat at a table opposite the informant and winked at him. He thereupon went over and sat down with the defendant, who offered to have sexual intercourse with him for a nominated price. This was duly paid and the act of intercourse took place. In concluding that no offence had been committed, the Court held that it was necessary in order to commit the offence of soliciting that there be some importuning in the sense of persistence, besetting with petitions or pressure (supra at 487). However, the essence of the decision is that to wink does not evidence or constitute soliciting. It should be noted that in that case "to importune" was said to mean "to solicit pressingly or persistently". Such a meaning itself implies that soliciting per se involves something less than importuning. This distinction, in my opinion, appears to have been accepted in S.4(1)(i) of the Vagrancy Act 1902. 38 In Hutt v. The Queen (1978) 82 DLR (3d) 95 the Supreme Court of Canada considered the meaning of the word solicit as used in the Canadian Criminal Code (S.195). In that case, the defendant smiled at a plain clothed police officer. He smiled in return. She entered his car and once in the car asked the officer if he wanted a girl and, when he indicated that he did, she nominated a price. The Supreme Court adopted the approach taken in Reg v. Roland (supra). Five Justices held that pressure or persistence was necessary in order to constitute soliciting under the Canadian legislation. Four justices held that pressure and persistence were necessary. 39 The two Canadian decisions take a different view of the law from that taken in New South Wales, England, Queensland and South Australia. However, differences between the law of Australia and the law of Canada are not without precedent as was pointed out by McHugh J. in Perre v. Apand Pty. Ltd. (1999) 73 ALJR 1190 at 1209. The difference in the law of Australia and the law of Canada in relation to actions for negligence to recover pure economic loss: (Caltex Oil (Australia) Pty. Ltd. v. The Dredge Willemstad [1976] 136 CLR 529 in Australia; Canadian National Railway Co. v. North Pacific Steamship Co. (1992) l SCR 1021) is an example. 40 In any event, the Canadian cases referred to can be distinguished on a number of grounds. First, the legislation under consideration in those cases did not have an equivalent of S.19(3) of the Summary Offences Act, 1988. Second, the legislative history of the Canadian provisions is different from that of the current New South Wales provision. In addition, it should be recognised that the meaning of words may differ not only from time to time but also from place to place. CONCLUSION 41 An examination of the ordinary dictionary meaning and derivation of the word solicit when used in the context of prostitution, the legislative history and form of s.19 of the Summary Offences Act 1988, and relevant decided cases leads to the conclusion that when used in s.19 of the Summary Offences Act 1988, solicit involves a personal approach, for the purpose of , or which is accompanied by, or which constitutes or conveys, an offer that some form of sexual activity will be engaged in by the person making the approach in return for monetary gain. 42 It is unnecessary, according to the ordinary meaning of the word solicit, when used in the context of prostitution, for there to be any element of aggressive persistence, pestering, pressure, or harassment or annoyance to the person approached . Nor is there a need for distress or embarrassment to be caused by or result from the approach or offer. If there are any of those elements present they may evidence a breach of s.19(3). The mere approach by a prostitute to a person who is a potential customer, when she is dressed in a suggestive manner, perhaps with appropriate gestures or words, or is presented in a particular way is sufficient to constitute an offer of services as a prostitute. 43 In my opinion, the actions of the plaintiff in Forbes Street on 24 June, 1999 qualify as soliciting. She was dressed in a manner which was designed to attract males. The front part of her upper body was clad in see-through type material, revealing much of her breasts. Her approach to Constable Mourlas' vehicle was for the purpose of letting him know she was available for sexual activity. Her words as she lent on the car as she stood in the street clearly indicated what she was offering to the constable. Inside the car there was a confirmation of the offer, a quantification of the price and explanation as to other details. 44 There is no doubt that the plaintiff was a prostitute. She offered her body for acts of indecency, including sexual intercourse, for the sexual gratification of the under cover police officer. This clearly falls within the definition of prostitution in S.3 of the Act and also constitutes prostitution under the Common Law (Halsbury's Laws of England 4th Ed. Vol. 11 para. 386). 45 The approach by the plaintiff to Constable Mourlas as a prospective customer with the intention of offering her services to him as a prostitute, constituted a breach of S.19(1) of the Summary Offences Act, 1988. In so deciding the Magistrate did not err either in his conclusion or in the legal principles he applied . 46 For the foregoing reasons the Summons in this matter is dismissed and the conviction of the plaintiff confirmed. The plaintiff is to pay the costs of the proceedings.

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