Samuels v Bosch [1972] HCA 46; (1972) 127 CLR 517 (29 September 1972)

HIGH COURT OF AUSTRALIA

SAMUELS v. BOSCH [1972] HCA 46; (1972) 127 CLR 517

Criminal Law

High Court of Australia
Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh(4) and Gibbs(5) JJ.

CATCHWORDS

Criminal Law - Statutory offence - Brothel - "For the purpose of prostitution" - Whether brothel includes premises where arrangements are made by men and women contemplating sexual intercourse elsewhere - Police Offences Act, 1953 1967 (S.A.), ss. 25, 27, 28.

HEARING

Adelaide, 1972, September 19, 29. 29:9:1972
APPEAL from the Supreme Court of South Australia.

DECISION

September 29.
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this matter by my brother Menzies and my brother Gibbs. I agree with the conclusion that this appeal should be allowed for the reasons which they give. (at p518)

2. In my opinion s. 28 of the Police Offences Act, 1953-1967 (S.A.) (the Act) which with s. 27 creates the offence of which the respondent was convicted, means what it says. The natural meaning of the definite words of s. 27 should not be restrained by any notion as to what may have constituted a brothel at common law. The contrary view it seems to me, with great respect to those who have entertained it, is founded on the supposition that Wills J. in Singleton v. Ellison (1), in using words which have been reproduced in the text of s. 27 (a), intended to confine their operation to premises where intercourse in fact takes place. However, in the first place, there was no need for his Lordship to have had in mind for the purposes of disposing of the case before him a situation such as obtained in the present case. In the second place his Lordship did not in terms so confine that operation. In the third place, although it may well be that the experience of the English courts up to the time when Singleton v. Ellison (1895) 1 QB 607 was decided did not extend beyond brothels where in fact intercourse did take place, the language used by his Lordship was in my opinion quite apt to cover premises such as those of the escort agency in this case used in the fashion described in the special magistrate's judgment. Further, in so far as prostitution consists in the offer of intercourse and that soliciting or loitering within s. 25 of the Act quite clearly are complete offences without any resulting intercourse, the "purposes of prostitution", a phrase common to ss. 25 and 27 were in my opinion fully achieved at the respondent's premises by the making there of arrangements in those cases where intercourse was in fact contemplated by those making the arrangements. It cannot be doubted that the women resorted to and used the premises for the purpose of making arrangements for intercourse for reward with any man resorting to those premises to make such an arrangement. That constituted, in my opinion, both a resorting of men and women to the premises for the purposes of prostitution and the use of the premises by the women for the same purposes. (at p519)

3. In my opinion the respondent was rightly convicted by the special magistrate which conviction ought now to be restored. (at p519)

McTIERNAN J. This appeal turns on the question, what is the meaning of "brothel", in s. 28 of the Police Offences Act, 1953-1967 (S.A.). The appellant prosecuted the respondent under s. 28 (1) (a). The charge preferred against the respondent was that she was keeper or manager of a "brothel". There was no evidence that illicit sexual intercourse or any sexual immorality occurred in the premises, alleged to be a brothel. The question in issue was whether proof of such conduct was necessary to prove the charge. It is necessary to turn to the definition of "brothel" in s. 27 of the Act. This section enacts that in the next five succeeding sections, one of which is s. 28 - "brothel" means any premises - "(a) to which people of opposite sexes resort for the purpose of prostitution ; or (b) occupied or used by any woman or women for the purpose of prostitution". (at p519)

2. The learned Chief Justice of South Australia said in the course of his judgment in the present case (1972) 3 SASR, at p 42:

"It is, I think, an essential element of prostitution that the
woman must offer herself sexually for hire, Skinner v. The
King
[1913] HCA 32; (1913) 16 CLR 336, at p 341
, per Barton A.C.J., per ISAACS J., as he then was
(1913) 16 CLR, at pp 343-344
,
R. v. De Munck
(1918) 1 KB 635
, though it is true, as Chubb J. said in
Fraser v. O'Hara
(1916) 11 QJPR 10, at p 15
, that the courts have sometimes inferred
from the description of the women or the circumstances of the
case that they were prostitutes without specific proof that
they took money. Still it seems to me from Skinner's Case
[1913] HCA 32; (1913) 16 CLR 336
that if it were shown that the woman or women concerned gave
their services gratuitously they would not be prostitutes."

3. The prosecution relied on the definition of "brothel" in s. 27 (a). The evidence proved that each of several women came to the premises in question as or in the capacity of a prostitute, in the course of the business conducted there by the respondent, called an "escort agency" ; that each of the women offered herself while on the premises, sexually, for hire to a man who came there to meet such a person as she was ; that he went with her from the premises elsewhere, to a place chosen by him or the woman, with whom he left the premises, at which place he intended to have sexual connexion with her. (at p519)

4. The point raised on behalf of the respondent in the court of summary jurisdiction was that because sexual relations did not happen on the respondent's premises in question, between any of the persons referred to in evidence they did not resort there "for the purpose of prostitution". I take the view that, those persons did beyond a reasonable doubt resort to the premises for the purpose of prostitution. An essential element of the prostitution of herself, carried out by each woman, to whom the evidence incriminating the respondent referred, namely, the woman's offering herself sexually for hire, occurred within such premises with the complicity of the respondent. The evidence, in my opinion, proved that the premises fell within s. 27 (a) (at p520)

5. I find myself to be of the same opinion as Zelling J. I agree in the reasons of his Honour. I would allow the appeal and restore the conviction and order of the court of summary jurisdiction. (at p520)

MENZIES J. The respondent was charged under s. 28 of the Police Offences Act, 1953-1967 (S.A.) that she "kept or managed a brothel situated at 131 Barton Terrace, known as Deborah's Escort Agency". The word "brothel" is defined by s.27 of the Act as follows :

"27. In the next five succeeding sections of this Act -
'brothel' means any premises -

(a) to which people of opposite sexes resort for the purpose
of prostitution ; or

(b) occupied or used by any woman or women for the purpose
of prostitution ;

'premises' includes a part of any premises."

This appeal falls to be decided upon the language of s. 27 read in its context. (at p520)

2. The respondent was the manageress of the so-called escort agency where male customers of the agency were introduced to prostitutes. Some male customers went to the agency simply to find female company for an outing. They paid the agency $12 of which the girl who went out with the man received $6. Others went to the agency seeking a prostitute. They paid the agency $12 and made their own arrangements with the prostitute for her fee. This was sometimes done at the premises of the agency. The prostitutes were instructed by the respondent not to charge less than $20. After such a customer and a girl left the agency, they would go elsewhere. The special magistrate convicted the respondent. The Full Court - Bray C.J. and Mitchell J. ; Zelling J. dissenting - quashed this conviction upon the ground that because intercourse did not take place on the premises, the premises were not a brothel where men and women resorted "for the purpose of prostitution". In my opinion, the special magistrate was right and the Full Court was wrong. (at p521)

3. The expression "for the purpose of prostitution" used in s. 27 is also used in s. 25 (b) which provides that :

"Any female person who -

(a) . . .

(b) loiters in any public place for the purpose of prostitution,
shall be guilty of an offence."

It is clear beyond doubt that there is an offence under this provision in a case where the prostitution is to take place away from the public place in which the woman loiters. Accordingly, the words "for the purpose of prostitution" cover meeting and making of arrangements for prostitution elsewhere than at the place of meeting. (at p521)

4. Reading s. 27 in the light of s. 25 (b), it is clear that the word "brothel" is not limited in its meaning to the place where intercourse for money actually takes place. (at p521)

5. Premises to which women and men resort for the purpose of arranging intercourse for money elsewhere constitute a brothel because that resorting is for the purpose of prostitution according to the generally accepted meaning of that word. It matters not that some of the men who resorted to the premises of the respondent went there only to obtain company for an evening. (at p521)

6. Furthermore, the premises were used by the women who, from time to time, were there for the purpose of prostitution in the sense already stated, that is, to offer their bodies to men for money. They were prostitutes and used the premises for the purpose of their trade. (at p521)

7. In the course of the appeal to the Full Court, there was a full examination of what was, at common law, a brothel, but I do not find it necessary to investigate that question because, as I have said, I regard the words of the statute creating the offence as clear. Although it does seem that the language of s. 27 (a) was taken from the judgment of Wills J. in Singleton v. Ellison (1895) 1 QB 607, at p 608 , this is not of significance because the words of s. 27 must be construed in their context and particularly in the light of what is meant in the same words of s. 25. We were informed that this earlier section was not brought to the attention of the Full Court. Furthermore, in the courts below, a line of authority relating to the keeping of premises for the purpose of moneys being received for gaming was considered. Again I find it unnecessary to draw support for my conclusion from those authorities. (at p521)

8. In my opinion, the appeal should be allowed and the conviction restored. (at p522)

WALSH J. I agree with the reasons for judgment of Gibbs J. (at p522)

2. In my opinion the appeal should be allowed. (at p522)

GIBBS J. The respondent was convicted before a special magistrate for the State of South Australia, sitting as a court of summary jurisdiction, on a charge that between 25th July 1971 and 17th August 1971 at North Adelaide she kept or managed a brothel situated at 131 Barton Terrace, known as Deborah's Escort Agency. Her appeal to the Full Court of the Supreme Court of South Australia was upheld by a majority. From the judgment of the Full Court an appeal has been brought to this Court by special leave. (at p522)

2. The charge against the respondent was laid under s. 28 of the Police Offences Act, 1953 (as amended) (S.A.) which provides, inter alia, that :

"(1) Any person who -

(a) keeps or manages a brothel, or assists in keeping or
managing a brothel . . .

shall be guilty of an offence."

The term "brothel" is defined in s. 27 of the Act which, so far as is material, reads :

"In the next five succeeding sections of this Act - 'brothel'
means any premises -

(a) to which people of opposite sexes resort for the purpose
of prostitution ; or

(b) occupied or used by any woman or women for the purpose
of prostitution."

This appeal depends on the meaning of that definition. (at p522)

3. No challenge was made to the findings of fact made by the special magistrate. Between the dates mentioned in the charge, the respondent managed a business known as Deborah's Escort Agency which carried on at a rented house at 131 Barton Terrace, North Adelaide. Girls (called "escorts") engaged by the respondent came to and waited at the house so that they might be chosen by men who went to the house to find a partner for the evening. Each man was charged $12 by the respondent as an "escort fee", i.e. as the price of meeting the girl. The pair, having met, left the house and went elsewhere. In some cases the man might have wanted no more than a companion, and if in fact he did not have sexual intercourse with the girl during the course of the evening - if, as it was called, it was "a straight escort" - the girl would be paid by the respondent half the escort fee, i.e. $6. In other cases, however, the man went to the house with a view of getting a girl with whom he could have sexual intercourse, and the girls were prepared to have sexual intercourse with customers who wanted it, on payment of a sum of money. It is admitted that the girls, or some of them, were prostitutes. If sexual intercourse occurred, the girl would be paid a sum of money arranged between herself and the man, and the respondent would receive none of that money. In such a case, however, the girl would not be paid by the respondent any part of the escort fee. Sometimes an arrangement to have sexual intercourse and as to the amount to be paid would be made between the girl and the man in the kitchen of the house at Barton Terrace. The respondent, although fully aware of what was going on, took no part in such discussions ; the girls were allowed to charge and keep whatever they liked, although the respondent advised them not to charge less than $20. In no case did sexual intercourse or any other sexual activity take place at the house at Barton Terrace. (at p523)

4. The principle submission made on behalf of the respondent was that in defining "brothel" in s. 27 the legislature was doing no more than taking phrases which were descriptive of brothels at common law, and that the section should not be construed as altering the common law, under which, it was said, a place was not a brothel unless sexual intercourse or other sexual acts took place there. Although the form of an indictment at common law for keeping a bawdy house, and dicta in some of the authorities which deal with offences connected with brothels, do support the argument that a place was not a brothel at common law unless it was kept for the purpose of people having sexual intercourse, or some other form of sexual activity, at that place, we were not referred to any case in which this question actually fell for decision. However, I find it unnecessary to consider the meaning of the word "brothel" at common law. In my opinion, if the words of the statute are plain and unambiguous they must be given effect, although the result may be that a place which would not have been a brothel at common law may be a "brothel" within the meaning of the Act. (at p523)

5. With the greatest respect to those who take a different view, I consider that if the words of s. 27 are given their ordinary and natural meaning they apply to the present case. Either limb of the definition of "brothel" in that section would in my opinion be applicable. The house was a house to which both men and women resorted and it was also a place which women used. The women, or some of them, resorted to, and used, the premises for the purpose of meeting men and arranging to accompany them to some other place and there have sexual intercourse for payment. Some at least of the men resorted to the premises for the purpose of there making corresponding arrangements with the women. The ordinary meaning of "prostitution" is "the offering of the body to indiscriminate lewdness for hire". The same or a similar meaning has been applied to the word "prostitution" in a criminal statutes : R. v. De Munck (1918) 1 KB 635, at pp 637-638 ; Reg. v. Webb (1964) 1 QB 357, at pp 365-366 . The purpose of the women in resorting to and using the house at Barton Terrace was the purpose of offering themselves for sexual intercourse in return for payment. The men resorted to the house for the purpose of meeting prostitutes and accepting their offers. Both the women and the men resorted to the house for the purpose of prostitution, and the women used the house for the purpose of prostitution, even though the resulting sexual intercourse took place elsewhere. (at p524)

6. The conclusion which I have reached gains some support from the fact that on this construction the words "for the purpose of prostitution" in s. 27 have the same meaning and effect as the same words in s.25 of the Act, which reads as follows:

"Any female person who -

(a) in any public place or within the view or hearing of any
person in a public place accosts or solicits any person
for the purpose of prostitution ; or

(b) loiters in any public place for the purpose of prostitution
shall be guilty of an offence."

In my opinion a woman would solicit, or loiter, for the purpose of prostitution within the meaning of s. 25 notwithstanding that the sexual intercourse proposed was not intended to occur in the public place in which she was soliciting or loitering. (at p524)

7. It was submitted that upon this construction of s.27, the occupier or owner of a place such as a hotel, a cafe, a dance hall or even a railway station might be convicted of keeping a brothel, if, to his knowledge, prostitutes frequently congregated there with the object of meeting potential customers. It is unnecessary to express any view as to whether such a consequence might follow ; questions of that kind can be decided if and when they arise. It is enough to say that the house at Barton Terrace in the circumstances of the present case came within the definition of "brothel" contained in s. 27 of the Act. (at p524)

8. It is unnecessary to consider whether the complaint was duplex and ought to have been amended, since the appellant expressly disclaimed any reliance on that point. (at p524)

9. For these reasons I consider that the respondent was rightly convicted and that the appeal should be allowed. (at p525)

ORDER

Appeal allowed with costs. Order of the Full Court of the Supreme Court of South Australia set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.