Samuels v Bosch [1972] HCA 46

High Court of Australia Barwick C.J. McTiernan, Menzies, Walsh and Gibbs JJ. Samuels v Bosch [1972] HCA 46

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.

Cur. adv. vult.

Sept. 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.

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 [1] 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.