Horne v Carlon [2007] NTCA 2

PARTIES: HORNE, Darryl Colin

v

CARLON, Lorraine Joy

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP 9 of 2006 (20407705)

DELIVERED: 25 May 2007

HEARING DATES: 18 and 19 April 2007

JUDGMENT OF: MARTIN (BR) CJ, ANGEL and MILDREN JJ

APPEAL FROM: HORNE V CARLON [2006] NTSC 61

CATCHWORDS:

APPEAL – CRIMINAL LAW
Appeal against conviction – aggravated assault – whether the findings of the Magistrate were unreasonable and not supported by the evidence – appeal dismissed.

Appeal against conviction – offences under Prostitution Regulation Act – inducing an infant to take part in prostitution - meaning of “carry on” business of escort agency – receiving a payment knowing it was derived from prostitution services provided by an infant – meaning of “payment” – whether the findings of the Magistrate were unreasonable and not supported by the evidence – reasons inadequate – lack of necessary findings of fact – appeal allowed and convictions set aside.

Criminal Code Act 1983 (NT), s 188; Prostitution Regulation Act 1992 (NT), s 6, s 13, s 15, s 16 and s 18.

Peach v Bird (2006) 17 NTLR 230, applied.
Semple v Williams (1990) 156 LSJS 40, approved.

REPRESENTATION:

Counsel:
Appellant: P Elliott
Respondent: R Coates

Solicitors:
Appellant: Withnalls
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: B
Judgment ID Number: Mar0708
Number of pages: 55

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Horne v Carlon [2007] NTCA 2
No. AP 9 of 2006 (20407705)

BETWEEN:

DARRYL COLIN HORNE
Appellant

AND:

LORRAINE JOY CARLON
Respondent

CORAM: MARTIN (BR) CJ, ANGEL AND MILREN JJ

REASONS FOR JUDGMENT

(Delivered 25 May 2007)

Martin (BR) CJ:

Introduction

[1] This is an appeal against convictions by a Magistrate for assault and offences against the Prostitution Regulation Act (“the Act”). An appeal to a Judge of this Court was dismissed and the appellant appeals to this Court primarily on grounds concerned with the weight of the evidence. The appeal also raises an issue of law as to the interpretation of s 15 of the Act which is concerned with obtaining payments in respect of prostitution services provided by an infant.

Background

[2] The female complainant in the assault charge was a licensed escort agency operator. She and the appellant lived in premises from which the agency operated. The learned Magistrate found they were often sexual partners, but his Honour was unable to make a finding as to the precise nature of the relationship. The appellant was involved in the operation of the agency. He drove prostitutes to and from places where their services were rendered. He also received monies from the prostitutes, being amounts paid by clients for prostitution services rendered, and conveyed those monies to the premises of the agency. The appellant and the complainant held a joint bank account into which proceeds from prostitution services were deposited.

Assault - Evidence

[3] The complainant gave evidence that in the early hours of Wednesday 4 February 2004 at the premises from which the escort agency operated, she and the appellant had an argument. According to the complainant, while in the kitchen the appellant “shoved” a red kitchen tool under her chin without touching her and told her to shut her “conniving, scheming mouth because he wasn’t going to tolerate any bullshit”. The complainant described how she walked to the bathroom and the appellant followed her. The following passages from the evidence of the complainant convey the essence of her version as to the circumstances of the assault:

“Darryl’s followed me [into the bathroom] and grabbed me hard by the arms and he spun me around. …

… Darryl came in behind me and grabbed my shoulders from behind and as he grabbed my shoulders from behind we kinda went forward and spun around and as I spun around, Darryl let me go and I fell into the corner of the bathroom in between the toilet and the basin.

That night I had a low cut red dress, red bra. From the corner Darryl grabbed me by my front of my dress which caused my dress and my bra to rip. He spun me around again and let me go back – I fell into the wall.

… Back into the same wall that I fell the first time, in the corner and I remember hitting the wall and as I was getting my head back up I noticed either had his arm up here to slap or punch me in the mouth.

He slapped me in the mouth and my teeth began to bleed and my mouth began to bleed. I began to cry. Darryl told me to pull myself together and at the same time I could hear the girls were returning or people were returning and Darryl said he didn’t want them to have any doubt and confusion about us. So I’ve walked out of the bathroom at that point and I’ve gone back into the office where I’d -

… my mouth was slow [sore] and my teeth were loose, they were bleeding, top and bottom were loose and I was bleeding.

… Well, I walked back to the office and I rinsed my mouth out with saltwater and the girls came in – I sat down at the desk and the girls come in and [Ms S] came in and sat down at the desk and I showed her what Darryl had done to me. Darryl pretended nothing had happened and I just wanted to avoid it all and I just went to bed and went to sleep.”

[4] The complainant gave evidence that when she got up at about lunchtime on Wednesday 4 February, her mouth was really sore and her teeth were loose. She was not happy. The appellant told her off for not smiling. According to the complainant, during the afternoon the appellant told her that she could work for “us” and she did not know who he was referring to because she believed that the business was hers. After the appellant left, the complainant gathered a few things together and left the premises in a taxi. After arriving at the home of a friend, she made a complaint of assault to the police by telephone and contacted a women’s shelter where she spent the night. The complainant said that as soon as she reached the women’s shelter she rang a named person at the Licensing Commission, advised that person that she had fled the office and why and was given instructions to have the phones disconnected. The complainant did not return to the business.

[5] On 4 February 2004 the complainant also saw a medical practitioner. Either on 4 February or two days later she consulted a dental surgeon. Reports from those persons were tendered and neither gave oral evidence.

[6] The medical practitioner found that the complainant had slightly loose front teeth, both top and bottom on the left, and observed a number of bruises. The practitioner’s report concludes:

“Overall, [the complainant’s] injuries were consistent with a recent physical assault.”

[7] The dental surgeon found that five teeth “showed signs of displacement, were extruded out of their sockets and both mobile and very sensitive to touch”. Advanced periodontal disease existed and was described as “critical” to the extent of the damage inflicted. In the view of the dental surgeon, a blow of “medium to light force” would have been sufficient to cause the damage.

[8] Significantly, the dental surgeon reported as follows:

“… Her injuries were consistent with her account of what happened.
She alleged she had been hit in the left anterior facial area. There was evidence of this in the examination of the hard tissues involved. There had been displacement of teeth, mobility of teeth, and extreme tenderness to pressure as exhibited by the teeth indicated on the chart previously provided with her treatment record.
At the time of examination there were no soft tissue lacerations. …”

[9] Three women who worked as prostitutes gave evidence. One of the women who was under the age of 18 (“Ms K”) gave evidence that she saw the appellant strike the complainant, but the learned Magistrate did not accept that evidence. It appears that his Honour found that Ms K was upstairs at the time the blow was struck. Ms K gave evidence that after the blow was struck she observed that the complainant had a swollen lip.

[10] Ms S gave evidence that she and Ms K were in an upstairs room when she heard an argument between the complainant and the appellant who were downstairs. Ms S described hearing a lot of “yelling and screaming, more so Darryl’s voice and a big loud thump.” Subsequently she observed that the complainant “had a bit of a bruised lip and a bit of a cut on her shoulder.” Ms S later described the injury to the complainant’s lip as a “fat lip”. She also noticed that the complainant’s “singletty top or dress” was ripped.

[11] Ms C said that she had been out on a job. When she left the office, the complainant was wearing a red dress. When she returned the complainant was in a nightie and seemed a little distressed. She observed that the complainant had a “little bit of a puffy lip”. Ms C identified the dress which was tendered as an exhibit. It was not put to Ms C that she was wrong about the red dress.

[12] The complainant’s bra and dress were examined by a forensic scientist. The report of the forensic scientist was tendered and stated as follows:

“The bra was ripped apart at the front. There was also evidence of stretching to the neckline at the front of the dress. The damaged areas on the items aligned and in my opinion occurred at the same time”.

[13] DNA evidence provided in the report of the forensic scientist supported contact between the appellant and the front of the dress and the bra. However, given that the appellant and complainant were living in the same premises and had been sexually intimate, in my view that evidence is of little, if any, significance and I have not had regard to it.

[14] The appellant was interviewed by police on 1 April 2004. The version he advanced in that interview was consistent with evidence he gave before the Magistrate. In substance, the appellant said that the complainant followed him into the toilet and started screaming at him. She kept screaming at him and after he had finished washing his hands he turned around, grabbed her dress and told her crudely to wake up. The appellant denied there was any shaking or physical force. In particular he denied slapping or punching the complainant. The appellant also denied damaging the dress or bra and, when shown the red dress during the interview, positively maintained that the complainant was not wearing that dress on the occasion of the argument.

Magistrate’s Reasons

[15] As a general observation, it must be said that the reasons of the Magistrate are not entirely satisfactory. They are discursive and, at times, lack precise findings and reasons for those findings which are normally to be expected when written reasons for decisions are given. As has recently been observed, it is inappropriate to dismember extempore reasons of Magistrates or subject them to hypercritical analysis: Peach v Bird (2006) 17 NTLR 230 at 232[9]. Bearing in mind that Magistrates work under considerable pressure which frequently requires the giving of brief oral extempore reasons without significant opportunity for reflection or preparation, “it is necessary to take a broad view of [extempore reasons] and ascertain the essential thrust of the reasoning processes applied, without being unduly critical of the precise modes of expression used or according them a degree of definitiveness which was never intended.”: Semple v Williams (1990) 156 LSJS 40. In the matter under consideration, however, at the conclusion of the evidence on 30 July 2004 the Magistrate took time to consider his decision and delivered his reasons on 22 October 2004. In these circumstances, while fully acknowledging the pressures under which Magistrates work, the reasons should have been more precise as to findings of fact and why his Honour had reached those findings.

[16] The Magistrate warned himself that the evidence of the four female prostitutes might be unreliable and should be approached with extreme caution. His Honour gave himself that warning because he was of the view that, ordinarily, it is “just in the nature of things that prostitutes’ evidence is perhaps less reliable on the whole than the evidence of ordinary citizens.” His Honour qualified that general observation with the following remarks:

“As to how that assumption comes to pass and whether it’s based on prejudice or reason, one can say that there’s no reason these days in theory why prostitution should be regarded as any more demeaning or unspeakable an occupation than many another unsavoury occupation which is legal, but even so I think it’s a matter of general knowledge – certainly judicial knowledge arising from the contacts this court has with, say, all sorts of welfare and protective jurisdictions – that many persons, many women, who end up in prostitution have had unfortunate lives in which they’ve suffered psychological damage.

Many of them come from backgrounds of considerable abuse, many of them are abused during the course of their career as prostitutes by those exploiting them, or have been in the past. One hopes that the Act is successful in its obvious aim of trying to diminish that exploitation. Many, for the foregoing reasons or for other reasons, are connected with the abuse of unlawful illicit drugs and their need for money to pay for drugs in turn keeps them in professional prostitution.

All those, in my experience, who have much to do with unlawful drugs tend to become, eventually, pretty dishonest people. Certainly their contacts with the legal system become coloured by their drug use. The kind of psychological damage that often lies behind careers in prostitution also doesn’t make for the most reliable of witnesses.

So just taking account of the milieu as it still exists of general social disapproval of the profession, of the dimension of drugs which is involved, I think that even these days there would be reasons apart from instinctive prejudice to consider carefully the evidence of anybody who is a prostitute; more carefully perhaps than the evidence of an ordinary citizen.”

[17] In my opinion it is not correct to approach the evidence of a person employed as a prostitute on the basis that solely by reason of working as a prostitute, the evidence of that person is or might be less reliable than the evidence of an “ordinary citizen”. A prostitute who observes a road accident is no more or less likely to be truthful or reliable than persons of other occupations solely by reason of the occupation as a prostitute. The truthfulness and reliability of each witness must be determined according to the particular circumstances of the case and the witness. If a witness, prostitute or otherwise, is a drug addict, or affected by alcohol, additional caution may well be needed. If a witness, prostitute or otherwise, is giving evidence about a matter in which they have a personal interest which, as a matter of commonsense and experience, might give the witness a motive to be less than truthful, that fact must be taken into account. To the extent the Magistrate speculated that there might be reasons to consider the evidence of prostitutes generally as less reliable, and did not make specific findings about the individual witnesses which would justify that view, his Honour was in error, but it was an error that favoured the appellant.

[18] As to the complainant in particular, his Honour found that the complainant had to be considered as an accomplice in connection with offences against the Act.

[19] In dealing with the evidence of the complainant concerning the charge of assault, the Magistrate expressed the view that the “particular concerns” arising from the complainant’s position as an accomplice in relation to offences against the Act did not apply. His Honour found that questions of credibility in respect of the assault charge were to “be answered in the normal fashion by treating and examining the evidence of fallible witnesses, many of whom have reasons to have feelings in this case one way or the other against or for the defendant, against or for [the complainant].” This approach was coupled with his Honour’s earlier observation that by reason of the fact that the complainant was a prostitute, her evidence should be approached with additional caution.

[20] Counsel for the appellant submitted that the Magistrate erred as a matter of law in not giving himself an accomplice warning with respect to the evidence of the complainant as to the circumstances of the assault. His Honour was not asked to give himself that warning and I tend to the view that he was not required to do so. However, it is unnecessary to decide this issue. Even if, strictly speaking, his Honour should have approached the complainant’s evidence on the basis that she was an accomplice, his failure to do so was not significant. His Honour approached the evidence of the complainant with additional caution and was well aware of the dangers associated with her evidence by reason of the possibility that the complainant harboured motives to falsely implicate the appellant. In addition, it was not suggested to the complainant or the Magistrate that the complainant had not contacted the police on 4 February 2004 to complain about the assault. Nor was it suggested to the complainant that she was falsely accusing the appellant of assault because she was an accomplice to offences against the Act and was concerned that she might be prosecuted for those offences. Finally, for the reasons that follow, in my view there was ample corroboration of the complainant’s evidence as to the assault.

[21] The Magistrate put aside the evidence of Ms K that she observed the appellant strike the complainant. His Honour preferred the evidence of Ms S that Ms K was upstairs at the time of the incident. Having put that evidence aside, his Honour referred to the evidence of Ms S that she heard a thump and the evidence of the women that they saw signs of a swollen lip.

[22] As to the evidence of the medical practitioner and dental surgeon, the Magistrate noted that neither mentioned a “fat lip”, but observed that he did not know how long fat lips remain fat. His Honour referred to the poor health of the complainant’s teeth and to his own observations of their condition, following which he found that “something has happened to five of those teeth” and that “obviously three of the four upper and lower front teeth have been affected”. His Honour specifically found that “some force has been applied to the centre of [the complainant’s] mouth sufficient to displace those five teeth” and that he “believe[d]” that the medical evidence was “entirely consistent” with the complainant’s account of the blow.

[23] Having reached that finding about the medical evidence, the Magistrate’s reasons continued:

“… Given Mr Horne’s account that he hadn’t really lost his temper, he wasn’t seeing red, indeed that he was in control of himself and merely berating [the complainant] at the time, I’m afraid I can see no reason not to believe beyond a reasonable doubt her account of being struck in the mouth under circumstances of argument.”

[24] The Magistrate then observed that he did not know what the argument was about. Having made that observation, his Honour said:

“But whatever the argument was about, I’m satisfied that in the course of the argument Mr Horne struck either a punch or an open handed blow strong enough – which wouldn’t have to be terribly strong – to loosen these teeth.”

[25] Shortly after making those findings, the Magistrate found that the conduct of the complainant in leaving the premises was significant. His Honour said:

“Anyway, the behaviour of [the complainant] after the deed is as convincing as the evidence that bears directly on it from her and from the medical staff because it is a matter of record and history that she, for a reason, fled from, walked away, closed down her business which she’d worked at quite hard, it would seem, for some time at a time when she had every reason to expect that business to be making income as never before because American ships were in town.

It would strain my credulity to say that she would do that on some sort of a whim based on anything but the assault she puts forward. The only other item I can see happening in the world at that time which might’ve caused her to run away from the business was consciousness of the peril she was in arising from Ms K’s age.

I’ve considered that but it just doesn’t seem to me to be – well, it weakens the force of the inference arising from her walking away from the business because there is one alternative motive for that. But taking the three things together, that is her evidence in relation to the incident which is pretty persuasive, it sounds like the sort of evidence one hears from women who are assaulted; taking the medical evidence as corroboration for that; and taking into account her behaviour after the event, it is in my view evident beyond a reasonable doubt that she was indeed struck as she says she was in the mouth.

I find the charge of assault proved.”

[26] As to the conduct of the complainant in leaving the premises, counsel for the appellant urged that there was an alternative view open on the evidence. No doubt that alternative view was put to the Magistrate, but it was open to his Honour to accept the evidence of the complainant as to why she left the premises. This is not a case in which the appellate court is entitled to substitute its own view for that of the Magistrate. In some circumstances an appellate court is in as good a position as the primary finder of fact to draw an inference from proven facts. However, the inference to be drawn from the proven fact that the complainant left the premises soon after the incident depends heavily upon the view taken of the complainant’s evidence as to why she left the premises. In this regard, the Magistrate had the distinct advantage of seeing and hearing the complainant. Having read the evidence of the complainant about the events of Wednesday 4 February 2004, I found that evidence convincing. In my view the Magistrate was entitled to take into account the conduct of the complainant in leaving the premises and contacting the police as circumstantial evidence to be considered in conjunction with the other evidence.

[27] In the context of corroboration, counsel for the appellant also submitted that the evidence of the dental surgeon should be read as merely stating that the injuries were not inconsistent with the evidence of the complainant. I do not agree. First, the report specifically states that the injuries were consistent with the complainant’s account. Secondly, having noted that the complainant alleged she had been hit in the left anterior facial area, the dental surgeon reported that “there was evidence of this in the examination of the hard tissues involved” (my emphasis). The reference to “evidence of this” was plainly a reference to evidence that the complainant had been hit in the left anterior facial area. The dental surgeon professed a positive opinion that there was evidence to support the allegation of being struck in the left anterior facial area. It was positive expert evidence that was not challenged. That evidence alone was sufficient to corroborate the complainant’s version.

[28] On the hearing of the appeal, counsel for the appellant argued two new grounds of appeal which, in essence, complained that the Magistrate placed too much weight upon the evidence of the medical practitioner and dental surgeon and upon the evidence of the complainant’s “flight” from the premises. It follows from these reasons that in my view there is no substance in those complaints.

[29] The evidence concerning the damage to the dress and the bra was also capable of being viewed as corroborative of the complainant’s evidence. It was not suggested to Ms C that she was wrong when she said that the damaged red dress was being worn by the complainant before Ms C left the premises on the evening of the incident. There is nothing in the evidence to suggest that Ms C’s evidence in this regard was unreliable. In these circumstances, it would have been open to the Magistrate to regard that evidence as supportive of the complainant’s evidence, but as his Honour did not make a specific finding it would be inappropriate to have regard to the evidence of Ms C concerning the dress.

[30] In my opinion the evidence in its entirety well justified the Magistrate’s finding that the totality of the circumstantial evidence corroborated the complainant’s evidence that she was struck in the mouth. There was ample evidence to support the finding of the Magistrate and there is no basis upon which this Court could properly interfere. Having read the evidence, I do not experience a doubt about the finding of guilt. In my opinion, it was the appropriate finding.

[31] In arriving at this view, I have not overlooked the appellant’s submission that the reasons of the Magistrate were inadequate because his Honour did not specifically state that he rejected the evidence of the appellant. In my opinion, it follows from his Honour’s findings that he rejected the appellant’s evidence as to the crucial question of whether a blow was struck. It would have been preferable for his Honour to have specifically stated that he rejected the evidence of the appellant in this regard, but the absence of that specific statement in the circumstances does not, in my opinion, mean that the reasons were inadequate to the extent that this Court should interfere.

[32] For these reasons, in my view the Judge was correct in dismissing the appeal against the conviction for assault and the appeal in relation to that conviction should be dismissed.

Inducing an infant to take part in the provision of prostitution services

[33] The Information charging the second offence of which the appellant was convicted alleged that between 12 January and 8 February 2004, the appellant “induced an infant to take part in the provision of prostitution services” contrary to s 13 of the Act. The infant concerned was Ms K who was, at the relevant time, a few months short of her eighteenth birthday. The appellant submitted that the evidence was incapable of supporting the finding of guilt and, in the alternative, that it is not possible to ascertain the evidence upon which the Magistrate relied to find the charge proven.

[34] Although the period covered by the charge included the period after Ms K had been recruited and commenced working as a prostitute, the Magistrate confined the charge to the recruitment of Ms K. It is necessary to determine whether his Honour was correct.

[35] The Information alleged that the appellant “induced” an infant to take part. His Honour reasoned that as the informant had chosen to charge that the appellant “induced” Ms K to take part rather than that the appellant induced Ms K “to continue” to take part in the provision of prostitution services, the charge was limited to the recruitment of Ms K. On that basis his Honour confined his consideration to whether the prosecution had proved that the appellant recruited Ms K into the escort agency business and, for these purposes, put aside any involvement of the appellant in Ms K continuing to provide prostitution services after her recruitment, particularly after the complainant left the premises on 4 February 2004.

[36] The Magistrate made the decision to confine the ambit of the charge without reference to the parties. The issue had not been the subject of submissions and the first notice given to the parties came with his Honour’s reasons. The Crown submitted that the Magistrate need not have confined his consideration of the evidence supporting the charge to events concerned with the recruitment of Ms K into the business. On the approach urged by the Crown, even if the evidence had not established that the appellant recruited Ms K into the business, he could still have been found guilty of this charge on the basis of his subsequent activities in connection with the business and the provision of prostitution services by Ms K after the complainant left the business.

[37] Section 13 of the Act is to be construed in the context of the overall scheme of the Act and, in particular, in the context of the provisions aimed at protecting persons under the age of 18 years. As the introductory words of the Act demonstrate, the intention of the Act is to make provision with respect to prostitution and to establish a licensing system for escort agency businesses. In substance, the legislation seeks to regulate the provision of prostitution services and to prevent the involvement of children in that industry.

[38] Part 2 of the Act creates a number of offences connected with prostitution. In particular, ss 13 – 18 are concerned with protecting children under the age of 18 years:

“13. Causing or inducing infant to take part in prostitution

A person shall not cause or induce an infant to take part, or to continue to take part, in the provision of prostitution services.

Penalty:

Where the offence is committed in respect of an infant who has not attained the age of 14 years – imprisonment for 14 years.
In any other case – imprisonment for 7 years.

14. Allowing infant to take part in prostitution

(1) A person who carries on or manages a business involving the provision, or arranging for the provision, of prostitution services shall not allow an infant to take part in the provision of such services.

Penalty:

Where the offence is committed in respect of an infant who has not attained the age of 14 years – imprisonment for 14 years.
In any other case – imprisonment for 7 years.

(2) A person having the care or control of an infant shall not allow that infant to take part in the provision of prostitution services.

Penalty:

Where the offence is committed in respect of an infant who has not attained the age of 14 years – imprisonment for 14 years.
In any other case – imprisonment for 7 years.

15. Obtaining payment in respect of prostitution services provided by infant

(1) A person who, except in the ordinary course of a business unrelated to prostitution, receives a payment knowing that it or any part of it has been derived (directly or indirectly) from prostitution services provided by an infant is guilty of an offence.

Penalty:

Where the offence is committed in respect of an infant who has not attained the age of 14 years – imprisonment for 14 years.
In any other case – imprisonment for 7 years.

(2) If it is proved to a court that a person is cohabiting with a prostitute who is an infant, that person is to be taken to be contravening subsection (1) unless the court is satisfied to the contrary.

(3) A prosecution for an offence against subsection (1) shall, if the person accused was an infant at the time when the offence is alleged to have been committed, be commenced only with the consent of the Director of Public Prosecutions.”

[39] Section 16 prohibits entry into an agreement under which an infant is to provide prostitution services and s 17 creates an offence by an infant who offers to provide or provides prostitution services. Section 18 places an onus on those involved in the industry to ensure that they do not involve an infant by providing that in proceedings for an offence against ss 13 – 16, it is not necessary for the prosecution to prove that the defendant knew that the person concerned was an infant. It is a defence for the defendant to prove that having taken all reasonable steps to find out the age of the person concerned, the defendant reasonably believed that at the time when the offence occurred the person had attained the age of 18 years.

[40] The Crown submitted that for the purposes of s 13, a continuing course of conduct which is confined in fact to inducing an infant to “continue to take part” in the provision of prostitution services can also amount to inducing the infant to take part. Counsel contended that the inclusion of the prohibition against inducing an infant “to continue to take part” is aimed at conduct which seeks to discourage an infant from ceasing to be involved.

[41] It is unnecessary to endeavour to define the parameters of conduct which would amount to inducing an infant to take part in the provision of prostitution services. Nor is it necessary to endeavour to define the border between inducing an infant to take part and inducing the infant to continue to take part. For present purposes it is sufficient to note that if the words “or to continue to take part” did not appear in s 13, the broad construction for which the Crown contended would be appropriate. But as those words do appear, on the Crown construction they would have little or no work to do. In my opinion, giving the words of s 13 their ordinary and natural meaning in the context in which they appear, the Legislature intended to draw a distinction between inducing an infant “to take part” and inducing an infant “to continue to take part” in the provision of prostitution services. As I have said, the circumstances of this case do not require the Court to determine where the line is to be drawn between those two concepts.

[42] The informant chose to restrict the charge against the appellant to inducing an infant “to take part” in the provision of prostitution services. In the circumstances under consideration, the Magistrate was correct in determining that this charge was based upon the alleged recruitment of Ms K into the business and was not concerned with events following that successful recruitment.

Evidence

[43] Ms K gave evidence that in about mid January she met the appellant at a nightclub as the club was closing. Her evidence as to that meeting was as follows:

“Q. Did anything happen there when you were talking to him?

A. He introduced me to a lady called Vicki [the complainant] and that was his girlfriend at the time and that’s when he gave me a business card and like we were just laughing about her, you know and he just gave it to me, he said, ‘You should call it’ and that was it, I walked down the stairs after that”.

[44] The business card contained the name and phone number of the escort agency business being operated by the complainant. According to Ms K, about a week later she again saw the appellant at the nightclub. On this occasion she told the appellant she was looking for work and spoke about her family difficulties. Ms K’s evidence continued as follows:

“Q. At Throb the second time, what happened then?

A. We were talking about the escort agency and he asked me if I would like to work and I said I would like to. I had my brother and sister to look after. He told me how much money we would make – I could make and he – it was good – he gave me somewhere to live and stuff.

Q. So you are saying he offered you work at the agency and he offered you somewhere to live?

A. And a place to stay, yes.

Q. Who did he offer the place to live?

A. He offered it to me at first and then when I started working, he offered it to my brother and my sister too.

Q. Now the sort of work he offered you, what sort of work did he offer you?

A. I was doing prostitution basically.

Q. Did he make it clear what the nature of the work was?

A. Yeah, we spoke about it”.

[45] The complainant also gave evidence of the first meeting at the nightclub between Ms K and the appellant. She said that as she and the appellant were leaving the nightclub, Ms K approached and gave the appellant a kiss on the cheek. According to the complainant, the appellant then gave Ms K a business card and asked her to call in and see them at the office. The complainant had not met Ms K at that time.

[46] The complainant did not speak of a second meeting at the nightclub. She gave evidence that a few days after the first meeting Ms K came to the office. The complainant said they were talking in general, but employment was not discussed. Ms K offered to answer the telephones, but as the complainant was very tired and went to sleep she did not know whether Ms K answered the telephones. It was a few days later when Ms K returned and offered to do work such as reception and cleaning.

[47] As to events after the second meeting with the appellant at the nightclub, Ms K said that having accepted the appellant’s offer of a home for herself and her brother and sister, a couple of days later she rang the appellant. Ms K’s description of the conversation was as follows:

“A. A couple of days after that I rang him and I was at my friend’s house and he goes, ‘Well, come in tonight’ and I can probably be introduced to Vicki – you know you can get to know a bit more about it and the work – and I could work that night. And that afternoon I went there and I worked – I didn’t actually work – I stayed up all night and all day without any phone calls or anything.

Q. When you started work there, you said for the first day, no work?

A. Yep, no work.

Q. Okay, to get work, did you undertake any activities?

A. Not while I started – just started working.”

[48] Ms K was not asked to describe specifically how she first came to be involved in the provision of prostitution services. Following the evidence to which I have referred, Ms K went on to describe the general operation of the business and the involvement of the appellant in taking her and the others to jobs and picking them up.

[49] The complainant gave evidence that a few days after Ms K had offered to answer the telephones, Ms K returned to the premises. The complainant took advantage of Ms K being present and spent a number of hours in the bathroom while Ms K and Ms S answered the telephones. Ms K had offered to do reception work, cleaning or anything because of her personal problems and the need to look after her brother and sister. According to the complainant, the appellant helped Ms K and allowed Ms K’s brother and sister to move into the appellant’s unit. The complainant was not asked about any further activities that occurred before Ms K first became involved in the provision of prostitution services.

[50] Neither Ms S nor Ms C gave evidence about the recruitment of Ms K.

[51] The appellant gave evidence that over the years he had seen Ms K on a few occasions around town. As to the first meeting at the nightclub, the appellant said he and Ms K were talking and she told him she needed a job and money. The appellant said he suggested that Ms K call the complainant and see the complainant about a job. The appellant said it was two or three days later that Ms K came to the office and saw the complainant after which Ms K went to the hospital because she received news that her sister had been injured.

[52] The appellant said that after Ms K had been at the hospital for some hours, she saw him and told him of her personal problems, including difficulties associated with looking after her brother and sister. Subsequently he agreed to let them stay in two spare rooms in the house from which the business was operated and later in his unit.

[53] The appellant denied that the second meeting at the nightclub described by Ms K occurred. He also maintained that Ms K spoke to the complainant about the job and not him.

Magistrate’s reasons

[54] Early in his reasons, the Magistrate discussed generally the operation of the escort agency and the role in that business of the appellant. His Honour also spoke of the introduction of Ms K to the business in the following passages:

“The engagement [of Ms K] originated from, or at least the first hint of it came about, when she spoke to Mr Horne at the nightclub Throb in Darwin some time. It seems that Horne and she at least knew each other by sight and to say hello to each other from other brief sightings in nightclubs. On the occasion Horne for some reason or other, the details of which seem to have been lost in the mists of time, came to a conclusion that she might be interested in working for the agency and passed her on a card and that’s where everything began.

It would seem likely that [the complainant] was present on that occasion and almost certainly [Ms S] was present on that occasion. Both of them claim to remember it. There was a second meeting spoken of only by [Ms K], also at Throb. Whether that meeting happened, whether it added anything significant is not clear. I don’t think Mr Horne has spoken of that one ever occurring, but perhaps it did.

Anyhow, things moved on. Ms [K] got in touch with the agency and in particular with [the complainant]. She was spoken to by [the complainant], to some degree by Mr Horne, but not much it would seem by Ms [S], taken on originally as a receptionist perhaps one could say and fairly soon moved on into providing a prostitution service, receiving a certain amount of coaching in matters of dress, demeanour and other things from [the complainant] and more coaching and education from Ms [S].

It’s not at all clear to me on the evidence how long Ms [K] worked Puss’n’Boots as a prostitute before 4 February, which is the date of the alleged assault on [the complainant]. It doesn’t sound like it was terribly long, perhaps a week, perhaps less. I might be wrong about that but I’ve searched through the transcripts and I really can’t get a handle on just how long it was that Ms [K] worked.

It is clear, or fairly clear, how long she worked after that date; a matter, on her evidence, of at most three, three and a half days. She says a week but on everyone else’s evidence everything came to an end on the Friday night/Saturday morning, or at most Saturday night/Sunday morning, the 4th being early Wednesday morning.”

[55] Later in his reasons, the Magistrate specifically dealt with the charge of inducing an infant to take part in the provision of prostitution services. After confining the ambit of the charge to the recruitment of Ms K, his Honour found that the appellant’s conduct on the first meeting in the nightclub in giving a business card to Ms K was not sufficient to amount to an inducement to Ms K to take part in the provision of prostitution services. The learned Judge on appeal agreed with that view. I also agree that the appellant’s conduct on that occasion was, in itself, insufficient to amount to the necessary inducement, but given the short period between that meeting and completion of the recruitment of Ms K, the appellant’s conduct at the first meeting was part of his total conduct upon which the Crown case was based.

[56] If the Magistrate had accepted the evidence of Ms K as to the events of the second meeting at the nightclub described by Ms K, against the background of the first meeting the conduct and words of the appellant on that second occasion would have amounted to an inducement for the purposes of s 13 and the charge would have been proved. However, his Honour did not make a specific finding that the second meeting occurred. In the remarks cited earlier, the Magistrate said:

“There was a second meeting spoken of only by Ms [K], also at Throb. Whether that meeting happened, whether it added anything significant is not clear. I don’t think Mr Horne has spoken of that one ever occurring, but perhaps it did.”

[57] The Judge on appeal referred to the evidence of Ms K as to that second meeting and then observed that the Magistrate stated in his reasons that he found the evidence of Ms K to be “pretty persuasive”. It is correct that his Honour used those words in describing part of the evidence of Ms K, but in using those words his Honour was not directing himself to the question whether his Honour accepted the evidence of Ms K as to the second meeting at Throb. His Honour was addressing the evidence of Ms K as to events at the premises from which the escort agency operated.

[58] The best that can be said from the Magistrate’s reasons is that he reached the view that “perhaps” the second meeting occurred. In expressing that view, his Honour appears to have overlooked the appellant’s denial that such a meeting occurred. In order to convict the appellant on the basis of the second meeting at Throb described by Ms K, it would have been necessary for the Magistrate to have rejected the appellant’s denial and to have accepted the evidence of Ms K as to the second meeting beyond reasonable doubt. His Honour did not make such findings. Nor did his Honour find beyond reasonable doubt that the second meeting occurred. There is no basis upon which this Court could infer that his Honour rejected the appellant’s denial and accepted the evidence of Ms K as to that meeting. Nor is there any basis upon which this Court could reject the appellant’s denial and find that the meeting occurred.

[59] Having found that the provision of the card to Ms K at the first meeting in the nightclub was not sufficient to amount to an inducement to take part in the provision of prostitution services, the Magistrate addressed the issue of recruitment of Ms K in the following terms:

“In relation to the actual recruitment of Ms [K] , what was going on in the business when she first went round there, what happened in relation to her sister – Ms [K’s] sister had apparently had a bicycle accident and was in hospital suddenly and Ms [K] had to attend to her – needed a place to stay because of the disasters of her family life and one thing and another, I refer in general to the evidence that Ms [K] herself gave, evidence which notwithstanding the caution with which I should approach everything in this case, I found pretty persuasive. In particular, her impression that Mr Horne was the guy running the business.

Whatever the individual contributions of Mr Horne, [the complainant] and indeed Ms [S] in taking [K] from a position where she was talking to them to the position where she was providing prostitution services, it is clear to me that Mr Horne played a substantial part in the recruitment of Ms [K].”

[60] The Magistrate then dealt with the issue of whether the appellant and the complainant became aware that Ms K was under the age of 18 years. Having concluded that at the outset, “very probably” they thought she was over 18, but that reasonable steps had not been taken and ignorance as to the age was, therefore, no defence, his Honour continued:

“I’m satisfied that in association with [the complainant] and in the course of his normal all-round leading hand sort of jobs at the agency, Mr Horne has clearly been involved in actions, persuasions and inducements that he has caused her to take part – or rather induced her to take part in the provision of prostitution services.
I find charge 2 proved.”

Reasons inadequate

[61] The Judge on appeal referred to the Magistrate’s finding that the appellant had “clearly been involved in actions, persuasions and inducements” such as to induce Ms K to take part in the provision of prostitution services and held that there was “sufficient evidence” for the Magistrate to be satisfied beyond reasonable doubt that the charge was proved. I agree that there was sufficient evidence, if accepted, to find that the charge was proved, but the critical question is whether the Magistrate found sufficient facts proved to support the finding of guilt.

[62] As I have said, the Magistrate did not make a finding that the second meeting at the nightclub as described by Ms K occurred. The acts and words amounting to inducements must, therefore, have occurred after the first meeting at the nightclub and before the recruitment of the complainant was completed.

[63] The Magistrate found the evidence of Ms K as to conversations with the appellant about her family and needing a place to live “pretty persuasive”. His Honour appears to have accepted that Ms K was under the impression that the appellant was the person running the business. However, his Honour did not make a finding that the appellant’s conduct with respect to providing a place for Ms K and her siblings to live was a part of the appellant’s conduct that amounted to the necessary inducement. The appellant placed an entirely different and innocent complexion on these arrangements.

[64] The appellant also maintained that conversations about working in the business occurred between Ms K and the complainant and did not involve the appellant. The Magistrate did not reject this evidence. His Honour made no comment about that evidence.

[65] Leaving aside the offer of a place for Ms K and her siblings to live, Ms K did not give evidence that the appellant did or said anything in connection with her commencing work. The complainant did not implicate the appellant in relation to arrangements for Ms K to commence work.

[66] Significantly, the Magistrate has not made findings of fact as to the specific conduct of the appellant that amounted to the necessary inducement or recruitment of Ms K into the business. It is not sufficient to say, as the Magistrate said, that “in the course of his normal all-round leading hand sort of jobs at the agency, Mr Horne has clearly been involved in actions, persuasions and inducements” without identifying the specific “actions, persuasions and inducements”. While it was open to his Honour to view the appellant’s conduct at the first meeting coupled with the offer of a place to live as conduct amounting to the necessary inducement, in the absence of a finding that the offer of a place to live was part of the inducing conduct, there is no evidence obviously identifying any such “actions, persuasions and inducements” occurring as part of the recruitment. Unless his Honour specifically rejected the evidence of the appellant, he would not have been in a position to make a finding that the appellant was involved in the recruitment because, according to the appellant, it was the complainant who undertook the recruitment without any involvement of the appellant.
[67] As I have said, the evidence, if accepted, was sufficient to support a finding of guilt. However, in my opinion the reasons of the Magistrate do not
identify with sufficient particularity those fundamental findings of fact which would support the finding. The appellant gave an innocent explanation for his dealings with Ms K and the Magistrate has not made a specific finding rejecting that innocent explanation. His Honour did not make specific findings as to the conduct of the appellant that occurred in the recruitment and this Court is unable to identify facts found proven by the Magistrate which would support the finding of guilt.

[68] The Judge on appeal did not advert to the lack of findings and inadequacy of reasons. In my view the inadequacy of the reasons with respect to this finding of guilt is such that the finding cannot stand. The appeal against the conviction of this charge should be allowed and the conviction set aside.

[69] As I have reached the view that the conviction for inducing Ms K to take part should be set aside by reason of the lack of findings and inadequacy of reasons, it is unnecessary to finally determine the meaning of “induce” for the purposes of s 13. Submissions as to this question were brief and no authorities were cited. It is appropriate to note that the ordinary and natural meaning of the word “induce” involves the concepts of persuasion and causal effect about which no evidence was led from Ms K. It may be, as the Crown submitted, that given the purpose of the legislative scheme is the prevention of exploitation of vulnerable children, the word “induce” should be given a wide construction sufficient to encompass encouragement to take part. That construction might be supported by the terms of s 13 which also provide that a person shall not “cause” an infant to take part. On the other hand, s 13 is a penal provision carrying with it a significant maximum term of imprisonment. These are issues to which careful attention should be given in future hearings and until the question has been authoritatively determined, it should not be assumed that inducement for the purposes of s 13 encompasses conduct which is limited to encouragement or that it is not necessary to prove that the inducing conduct had a causal effect.

Charges 3 and 5

[70] The third charge was that the appellant received a payment knowing that it or part of it had been derived from prostitution services provided by Ms K, contrary to s 15 of the Act. This charge was based on the receipt of monies by the appellant from Ms K at a time subsequent to the departure of the complainant from the premises. It was based upon the direct receipt and not upon any interest held by the appellant in the joint account into which monies received by the prostitutes were ultimately paid. As the circumstances in which the Crown alleged that the payment in breach of s 15 was received were inextricably linked with the Crown case on the fifth charge that the appellant took over the running of the business for his own purposes in breach of s 6(1)(a), it is convenient first to consider the evidence relating to the running of the business.

Evidence

[71] The third and fifth charges were based on events occurring after the complainant left the premises on Wednesday 4 February 2004. To that point, it was common ground that the appellant drove the prostitutes to premises where services were to be provided and picked them up when the jobs were completed. In addition, it was not an uncommon occurrence that the women gave monies received from clients to the appellant for security reasons.

[72] The complainant described the appellant as her boyfriend, “the driver and the security”. She gave evidence that the women would bring money back from jobs and give it to her. Sometimes the appellant would give her the money. The complainant distributed payment to the women, usually by way of a 50/50 split.

[73] It was the Crown case that after the complainant left the premises on 4 February 2004, for at least the next few days the appellant carried on the business of the escort agency for his own purposes. The appellant maintained that he merely continued to perform the duties for which he was previously responsible in anticipation of the complainant returning to the premises. According to the appellant, all activities came to a halt on Friday 6 February 2004 when the telephone ceased to operate. The appellant assumed that the complainant had arranged for the telephone to be cut off.

[74] Ms K gave evidence that after the telephone was cut off she and the other women were working for themselves and for the appellant. She described the activities in the following terms:

“A. We did promotional work to promote ourselves out there, Darryl did all of us driving around and taking us everywhere and that point of time we’d keep the money that we’d make because we were working non-stop and then whenever we had a break and stuff, we’d go home, give him the money, clean up ourselves and then go back out again.

Q. So you were doing work, coming back and giving him the money?

A. Yes.

Q. And when you gave him money, did anything happen then?

A. No.

Q. What arrangements were made for the people working then?

A. We’d get half of our money, but we’d get paid after we’d finished all of our work and our jobs and stuff.

Q. And who would give you that money?

A. Darryl.

Q. Who did you understand you were working for now?

A. Darryl.”

[75] Ms K said that she and the appellant spoke about living arrangements for her to keep working for him until she turned 18. She described working for a week until Family and Children’s Services became involved with her brother and sister and she went into foster care.

[76] Ms S said that when the complainant left, the appellant told her that the complainant was having a couple of days to cool off and would be back. She said they continued to work and the appellant was running the business. As to how the system worked, Ms S said:

“A. He was collecting the money off us. When us girls weren’t [on] jobs we would answer the phones and make the job bookings ourselves. When we were in jobs he would pick up the phone and answer them and get us our jobs, so that way he was running it … .

Q. So you’re clear on what I’m asking you that you heard with your own ears that … ?

A. Yes because we had three or four phones – mobile phones.

Q. Yes?

A. If I was on one and the other ones were ringing and it was just me and him in the room at the Value Inn, he would pick up the phone and answer it or if we were in the car he would be answering the phones.

Q. Right and further clarify that he organised the jobs?

A. Yes.”

[77] Ms S said they were pretty busy because of the sailors and, at the request of the appellant, they walked around the city handing out business cards as a promotion. They also attended at a nightclub and handed out printouts on pieces of paper containing the mobile telephone numbers of the appellant.

[78] Ms C gave evidence that she saw the complainant leaving the premises and later spoke to the appellant. According to Ms C, the appellant told her “the slut wouldn’t lift her game so I sent her packing, sent her walking”.

[79] Ms C said she subsequently received a call from the complainant in the presence of the appellant who asked if it was the “slut”. When Ms C responded positively the appellant started yelling at her and telling her she could “piss off” with the complainant. According to Ms C, the appellant went on to say that “this was his agency – it was his girls and he didn’t want the girls – his girls – talking or having any conversation or any contact with [the complainant] whatsoever.” Ms C said the business proceeded and she went out on a few different jobs including a job with Ms K to which they were taken by the appellant. At the completion of the job the appellant was waiting and Ms C gave him the money she had received for her services.

[80] Ms C gave evidence of other jobs and of conversations with the appellant about those jobs. In effect, from the evidence of Ms C the appellant was very actively involved in the work being carried out by the prostitutes in the short period after the complainant left the premises.

[81] The appellant denied that he was involved in answering the telephones or arranging jobs. He maintained that his role was unchanged. As to monies received after the complainant had left the premises, the appellant said that the women returned to the premises with the money they had received and left the business share of the money in a drawer in the office. He said they might have given him all the money in respect of one job. When he got back to the office he gave them their half share and placed the remainder in the drawer.

[82] According to the appellant, the owner of the property wanted money for her rent. The appellant said he had the owner sign the receipt book and that the owner was “paid her rent”, but denied that he made the payment. He said the money was in the office and the owner knew where the money was kept. The appellant did not say whether he handed the money to the owner or whether she took it herself from the drawer. A reading of the transcript conveys the strong impression that the appellant was being evasive in this section of his evidence.

Magistrate’s Reasons

[83] The Magistrate noted the role of the appellant in driving prostitutes to and from premises where services were provided and in receiving monies from the prostitutes to be conveyed to the premises for the complainant. His Honour observed that the appellant carried out other tasks within the business such as sweeping the floor and, on occasions, at the direction of the complainant placing advertisements in the newspaper. His Honour found that the appellant “participated in other publicity activities for the agency”, presumably a reference to the handing out of promotional material to which I have referred.

[84] Having referred to the role of the appellant prior to the complainant leaving the premises, the Magistrate found that none of the operations described in the evidence proved that, prior to the complainant leaving the premises, the appellant was managing or running the agency. His Honour added that “it certainly seems to be the case on the evidence of Ms [K], Ms [C] and to a degree [the complainant] that as a subordinate he was a fairly dominant subordinate person in that position”.

[85] The Magistrate observed that the appellant may well have been a bossy sort of person and commented that he came across that way in giving his evidence. His Honour said that he could “easily believe” the evidence that the appellant spoke over the complainant at times and was loud and overbearing, and said that these features would give grounds for mistake by Ms K and Ms C as to who “was running the show”.
[86] Addressing the events that occurred after the complainant left the premises on Wednesday 4 February 2004, which is the relevant period for the purposes of charges 3 and 5, the Magistrate observed that he did not reject the evidence of the appellant that he assumed that the complainant had gone off in a huff and would be back in due course because she had previously disappeared and returned. His Honour specifically found that it seemed “likely to have been the truth” that the complainant had gone off in a huff once or twice in the past and returned.

[87] As to the continuation of the business after the complainant left, the Magistrate referred to the appellant’s case that business continued on the Wednesday night and was booming because the American ships were in town, but came to a sudden end and did not resume as soon as the telephone was cut off. His Honour incorrectly observed that it appeared the telephone was cut off on Thursday morning. The only evidence specifically addressed to that issue was the evidence of the appellant who said the telephone was cut off on the Friday.

[88] After referring to the evidence of Ms S and Ms K that the business continued to operate for a period longer than the period described by the appellant, his Honour made a specific finding that the business continued to operate for a period longer than that given by the appellant. That was a finding open to his Honour. It was based on the evidence of both Ms S and Ms K. In particular, his Honour described the evidence of Ms S in relation to the continuation of the business as “fairly persuasive” and found that she was “the most honest and most uncomplicated of the witnesses for the prosecution of the four prostitutes”.

[89] Specifically as to the appellant’s role after the complainant left the premises, the Magistrate referred to the evidence of Ms K and Ms S that the appellant “decided upon and took the prostitutes on various expeditions in order to publicise the existence of the service”. As to the payment of rent, his Honour found that the appellant permitted money to be taken from the drawer for rent and that during the short period of time the appellant “did everything consistent with keeping the business going.” His Honour’s reasons continued:

“Some of those actions didn’t involve any great initiative or any initiative at all on his part. They were just going through the motions and doing what he normally did. Others, the business about the rent money for example, involved decisions on his part that didn’t have the authorisation of [the complainant] and he can’t have been in any mistake about that. He seems to demonstrate a man who seems to have taken on the running of the business himself, whether he realised that’s what he was doing or not.”

[90] The observation by the Magistrate that the appellant “seems” to have taken on the running of the business “whether he realised that’s what he was doing or not” is ambiguous. His Honour might have had in mind the possibility that the appellant was not aware that, for the purposes of the law governing the provision of prostitution services, the appellant was running the business.

[91] The Magistrate later returned to his findings as to the appellant’s role in the operation of the business for the short period of a few days after the complainant left the premises:

“I’ve already said that my belief is that Mr Horne during the day or two, perhaps three days, between the departure of [the complainant] and the entry of Family and Children’s Services into the picture did a number of things without [the complainant’s] authority, off his own bat and using his own initiative. It seems to me that those things – paying the rent, putting in an advertisement and whatever else, making the telephone calls, manning the phones as I am satisfied that he did – amounts to carrying on the business, as that phrase is used in s 6 of the Act.

It’s clear that the business was an escort agency within the meaning of that definition, the agency hadn’t changed because [the complainant] had vanished and her licence had been suspended. Mr Horne was running the thing as far as anybody was and in the event that – and it being the case, as I’ve found it’s the case, that [the complainant] had left because she’d been punched in the mouth and had closed down the business and had pulled the phone, it doesn’t seem to me possible to believe that Mr Horne could have thought, after that, that he was running the business waiting for her return.

In short, I find charge 5 proven as well, though in the circumstances of this case that would seem to be the least serious of the charges by a long distance.”

[92] In this passage, the Magistrate commented that it did not seem to him to be “possible to believe” that after the telephone had been cut off he was running the business waiting for the return of the complainant. However, a failure to believe the appellant does not automatically translate into a finding that it was not a reasonable possibility that the appellant thought he was running the business while waiting for her to return. His Honour did not make a specific finding that the appellant had reached the positive view that the respondent had abandoned the business and would not return. In addition, earlier in his reasons his Honour had observed that he did not reject the evidence of the appellant that he believed the complainant had gone off in a huff and would be back in due course.

Carrying on the business – basis of findings

[93] The Magistrate found that the appellant “did a number of things” without the authority of the complainant acting “off his own bat and using his own initiative”. It is tolerably clear from the passages cited that in reaching this finding his Honour relied upon three essential areas of activity occurring after the complainant left the premises. The significance of these findings is to be considered in the context of the departure of the complainant from the premises, her cutting off of the telephone and his Honour’s observation that he did not believe the appellant’s claim that he thought he was running the business waiting for the complainant to return.

[94] The three essential areas of activity were first, that the appellant was involved with the receipt of funds and payment of rent. Secondly, the appellant placed an advertisement and was involved in publishing the existence of the escort agency service. Thirdly, the appellant involved himself in the manning of the telephones and making of calls. With the exception of the placing of an advertisement, these findings were supported by the evidence.

[95] In making a finding as to the placing of an advertisement, it appears that the Magistrate misconstrued the evidence of Ms S. His Honour acknowledged the uncertainty of the timing in the evidence of Ms S, but overlooked the evidence of Ms S that it was after the complainant had left the premises that the appellant was with her when she placed an advertisement. Importantly, at that time Ms S was working privately and there is no evidence that the advertisement was placed in support of the business previously operated by the complainant. To the extent that his Honour found that the appellant “took it upon himself and took the initiative to have an advertisement placed in the paper”, his Honour was in error.

[96] In my opinion, in the context of a finding that the appellant ran the business after the complainant left, the error was not significant.

[97] The Magistrate was satisfied that the appellant went beyond his normal duties and that in the short period after the complainant left the premises, particularly after the telephone had been cut off, the appellant set about running the business. In the passages to which I have referred, his Honour found that the appellant manned the telephones and made an independent decision about payment of the rent without the authorisation of the complainant. His Honour accepted the evidence of Ms S that the appellant organised jobs for the prostitutes and sent them into the city to hand out promotional material containing the appellant’s mobile telephone number. These findings of fact were ample to justify the finding that in the few days after the complainant left the premises, the appellant was running the business and did “a number of things” without the complainant’s authority “off his own bat and using his own initiative”.

[98] A careful reading of the Magistrate’s reasons discloses sufficient factual findings to enable this Court to identify the proven facts upon which his Honour based his finding that the appellant ran the business. A reading of the transcript leaves me with the strong impression that the Magistrate reached the correct conclusions of fact. However, the Magistrate did not make a finding that it was not reasonably possible that the appellant expected the complainant to return. Nor did his Honour make a finding that the appellant was operating the business for his own purposes or was intending to keep the proceeds for himself. In my view these findings cannot be inferred from the reasons of the Magistrate and, in the absence of such findings, the question remains whether the facts found proven by the Magistrate were sufficient to justify a finding of guilt on charge 5 that the appellant carried on the escort agency business in breach of s 6(1) of the Act.

[99] It appears that the Magistrate was of the view that the activities of the appellant after the complainant left the premises were sufficient to amount to carrying on the business for the purposes of s 6. The Judge on appeal referred to the findings of the Magistrate and the evidence of the prostitutes, including Ms C, which her Honour observed had been accepted by the Magistrate. In fact his Honour made no finding about the evidence of Ms C concerning the activities of the appellant after the complainant left the premises, but as I have said the other evidence was ample to justify the finding that the appellant took over the running of the business.

[100] Neither the Magistrate nor the Judge on appeal considered the question as to whether, in the absence of a finding that the appellant operated the business for his own purposes and profit, the activities of the appellant as found by the Magistrate were sufficient to constitute a breach of s 6. It is to that question I now turn.

Legislative Scheme

[101] The Act prohibits the operation of a brothel, but permits the carrying on of an escort agency business provided there is compliance with the conditions set out in the Act. A distinction is drawn between the person who carries on the business and requires an operator’s licence and a person who manages such a business and is required to hold a manager’s licence. Section 6 is in the following terms:

“Division 2 – Escort Agency Businesses

6. Operators and managers of escort agency businesses to be licensed

(1) Subject to subsection (4), an individual shall not carry on an escort agency business unless –

(a) the individual holds an operator's licence in respect of the business; and

(b) the business is managed either by the individual or by an individual who is authorised to do so by a manager's licence.

Penalty: $10,000.

(2) A body corporate shall not carry on an escort agency business unless –

(a) it holds an operator's licence in respect of the business; and

(b) the business is managed by an individual who is authorised to do so by a manager's licence.

Penalty: $10,000.

(3) An individual shall not manage an escort agency business on behalf of a body corporate or another individual unless he or she is authorised to do so by a manager's licence.

Penalty: $10,000.

(4) Subsection (1) does not require an individual who carries on an escort agency business to be licensed where –

(a) the escort agency business arranges for the provision of prostitution services by that individual and no other;

(b) the individual does not carry on the escort agency business in partnership or otherwise in association or conjunction with any other person; and

(c) the individual is the only person employed in the escort agency business.”

[102] For the purposes of s 6(3), a manager is defined in s 3 in the following terms:

"‘manager’ means a person appointed or authorised by the operator of an escort agency business to carry on or conduct the escort agency business but does not include a person whose principal duty is to act as a receptionist and arrange for the provision of prostitution services”

[103] There is no doubt that after the complainant left the premises, the appellant was “carrying on the business” of the escort agency according to the ordinary and natural meaning of that expression. The critical question, however, is whether he carried it on as an operator in breach of s 6(1) or whether he was more properly viewed as in the category of a manager or some other form of employee. The prosecution chose to charge that the appellant carried on the business without holding an operator’s licence in respect of the business. That charge would not be made out unless it was proved that the appellant was the operator rather than the manager or employed in some other capacity.

[104] The legislative scheme is plainly aimed at ensuring that those who own and operate an escort agency business are licensed to do so. If an owner or operator appoints or authorises a person to “carry on or conduct the escort agency business”, that person must be licensed as a manager. It is not to the point that the appellant was a bossy or domineering sort of person who undertook numerous roles within the business. Until the departure of the complainant from the premises, it was common ground that the complainant was the operator. The Crown case was based solely upon the activities of the appellant after the complainant left the premises.

[105] The Magistrate did not make a specific finding on the critical questions, namely, whether the appellant believed that the complainant had abandoned the business and took over the operation of the business from the complainant for his own purposes. It was only if his Honour made such findings beyond reasonable doubt that the Crown had proved its case that the appellant operated the business in breach of s 6(1). It was not sufficient merely to prove the activities identified by the Magistrate. It was necessary for the Crown to prove that these activities were carried on in the capacity of operator or owner as opposed to a manager or some other form of employee.

[106] The evidence was capable of supporting a finding that after the complainant left the premises, or more particularly after the telephone was cut off, the appellant undertook the operation of the business for his own purposes and became the operator for the purposes of s 6(1). However, the Magistrate did not make such a finding. Such a critical finding had to be made and plainly spelt out if the conviction is to stand. In the absence of that fundamental finding, this Court is not in a position to substitute its own view and the conviction must be set aside.

Receiving a Payment

[107] As to the charge of receiving a payment, in the context of his finding that the appellant carried on the business for the short period after the complainant left the premises, the Magistrate made the following findings:

“In the course of that [running the business], be it one day or two days, it seems clear to me that he received payments – nobody else received them – knowing them to have been derived from prostitution services provided by an infant. I don’t know that it’s any answer to that charge to say that he was receiving them and holding them in trust for [the complainant] once she came back from her sulk.

Indeed, I suspect – but I’m not sure about this – that it would be sufficient to comprise or sufficient to make Mr Horne guilty of this charge if, as he had done before [the complainant] flounced off, that he received money at the door of a hotel unit in the Alatai, for example, and kept it and conveyed it to [the complainant]. It seems to me in that sense he’s received the money. The fact that he’s going to pass it on to somebody else is immaterial.

Whether I’m right or not about that, when Puss’n’Boots was operating under the direction of ownership and legal direction of [the complainant], it seems to me much more clearly the case that that was happening within the meaning of the word ‘received’ at a time when [the complainant] was not on the scene and Mr Horne was improvising ways of keeping the business going under his own bat and by his own decisions.

So in my view he’s likewise guilty of charge number 3.”

[108] The Judge on appeal read the reasons of the Magistrate as amounting to a finding that it was sufficient for the appellant to receive money from Ms K and it was immaterial that he might have intended to pass the money on to someone else. Her Honour agreed with that view.

[109] I do not take the same view of the Magistrate’s reasons. His Honour said he suspected, but was not sure, that it would be sufficient for the appellant to receive the money and subsequently convey it to the complainant. It was in the context of that factual situation that his Honour observed that conveying the money to someone else was “immaterial”. The Magistrate then went on to say that whether he was “right or not about that” for the period when the escort agency was operating “under the direction of ownership and legal direction of” the complainant, it seemed to his Honour to be “much more clearly the case” that the appellant received the payment after the complainant had left the premises and the appellant was “improvising ways of keeping the business going under his own bat and by his own decisions”.

[110] As to the view that the conduct of the appellant in receiving monies from Ms K and giving those monies to the complainant while the complainant was operating the business amounted to receiving a payment for the purposes of s 15, in my opinion that view is not a correct construction of s 15. If that view was correct, an escort agency receptionist with appropriate knowledge, whose duty is limited to receiving money from prostitutes on their return to the business premises for the purpose of safe keeping before passing the money to the operator, would also be receiving a payment in contravention of s 15. In my opinion that Legislature did not intend to extend the operation of s 15 to such circumstances.

[111] If s 15 prohibited the “receipt of money”, there would have been no doubt that the act of receiving money solely as a conduit to the operator of the business would contravene the Act. However, the Legislature chose to prohibit the receipt of a “payment” knowing that the “payment” or any part of it had been derived from prostitution services provided by an infant. Although in different contexts the words “pay” or “payment” might include reference to a gift, in my view the wording of s 15 in the context of the Act carries with it the implication of a payment in discharge of an obligation. Hence in the circumstances under consideration, when the complainant was carrying on the business as the operator, she received payment from Ms K in discharge of Ms K’s obligation to account to the complainant for monies received in payment for prostitution services provided under the auspices of the escort agency business. However, the appellant was only the driver, and notwithstanding that the appellant was sometimes used as a conduit to the complainant for safety reasons, no obligation to account for such monies was owed by the prostitute to the appellant.

[112] What then of the situation after the complainant left the premises? As I have said, the Magistrate did not make a finding that the appellant carried on the business for his own purposes as the operator. Nevertheless, the appellant undertook additional duties and was, in a general sense, in charge and carrying on the business.

[113] In the absence of specific findings, the appellant’s status after the complainant left the premises remains uncertain. The Magistrate’s reasons do not exclude the possibility that the appellant expected the complainant to return. His Honour did not find that the prostitutes, or Ms K in particular, were under an obligation to account to the appellant for monies received for prostitution services provided under the auspices of the escort agency business. In the absence of such a finding, this Court cannot substitute its own view and the conviction must be set aside.

[114] As I have said, in my opinion s 15 is not aimed at a person who merely acts as a conduit between the infant and the person to whom the infant is required to make the payment in discharge of an obligation to account for the proceeds of the provision of prostitution services. The section is aimed at the person to whom the prostitute is liable to account because the prostitute has provided prostitution services under the auspices of the escort agency business. It is unnecessary to decide whether an employee higher up the chain of authority such as a manager would act in contravention of s 15 if the manager had a duty to convey monies received to the operator of the business.

[115] The view I have reached is supported by s 15(2) which provides that a person is cohabitating with a prostitute who is an infant is taken to be contravening s 15(1) “unless the court is satisfied to the contrary”. In other words, the person who is cohabiting with the infant prostitute is assumed to be profiting from the prostitute’s activities and to be receiving a payment in breach of s 15 unless that person proves to the contrary.

Sentence

[116] The notice of appeal to this Court states that in the alternative to the appeal against convictions, the appellant appeals against sentence on the basis that the sentences on all charges were manifestly excessive and in imposing sentence the Magistrate did not properly take into account the circumstance that the appellant is the sole carer of his son.

[117] As to the sentence for assault, counsel for the appellant identified a number of occasions on which the Magistrate spoke of the appellant punching the complainant. Those occasions included remarks directly related to the exercise of the sentencing discretion. In referring to the appellant as having punched the complainant, the Magistrate was in error. It was plain from the evidence of the complainant that the appellant slapped her in the mouth. In my opinion the error of fact made by the Magistrate was significant and should result in the sentence being set aside. However, for the reasons that follow, in my view this Court is unable to entertain the appeal against sentence.

[118] At the heart of the problem is the fact that the appeal from the Magistrate heard by the single Judge did not include an appeal against sentence. There is, therefore, no order of the single Judge relating to sentence against which the appellant seeks to appeal. The appellant asks this Court to accept an appeal against the decision of the Magistrate with respect to sentence.

[119] The appellant’s right of appeal is found in s 163 of the Justices Act. It is a right to appeal to the Supreme Court and the appellant’s appeal to the Supreme Court was heard by a single Judge. The appellant’s right to appeal against the decision of the single Judge is found in s 51 of the Supreme Court Act. It is a right to appeal to the Supreme Court in its appellate jurisdiction known as the Court of Appeal. Significantly, it is a right to appeal from the “judgment” given by the single Judge.

[120] The difficulty confronting the appellant is that the judgment of the single Judge is not a judgment on the question of sentence. It is a judgment limited to conviction. In the proceedings before this Court, there is no judgment on the question of sentence against which the appellant is entitled to appeal.

[121] In my opinion, having dismissed the appeal against the conviction for assault and allowed the appeals against convictions under the Prostitution Regulation Act, the appropriate course is to remit the matter of the assault for further hearing before the Judge who heard the appeal from the orders of the Magistrate. On that further hearing before the Judge, the appellant will be able to seek leave to add a ground of appeal against sentence. The fate of such an application and any appeal against sentence will be matters for determination by the Judge.

Angel J:

[122] I agree with the Chief Justice that the appeal against conviction on the assault charge should be dismissed and that the matter should be remitted back to the judge for further hearing on the question of sentence.

[123] I agree that the conviction on the second charge should be set aside and a verdict of acquittal entered for the reasons given by the Chief Justice.

124] I also agree that the convictions in respect of the third and fifth charges under the Prostitution Regulation Act NT should be set aside and verdicts of acquittal entered. The evidence does not establish beyond reasonable doubt that the appellant consciously conducted the business on his own account after the complainant had abandoned it.

[125] In my view “payment” in s 15 Prostitution Regulation Act NT connotes the conferring of a benefit. Receiving “a payment” for the purposes of s 15 necessarily involves the recipient receiving some direct personal benefit from the payment. Whether that payment need be in discharge of some sort of obligation, or can be by way of gift, loan, or reward, it is not now necessary to decide. In the present case the appellant, as driver, was not shown to have received the personal benefit of any money paid to him by the infant prostitute. He was therefore not shown to have contravened s 15 of the Act.

Mildren J:

[126] I agree with Martin CJ and with the orders he proposes.
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