Samoilenko v McDonald

[1989] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A20 of 1988

B e t w e e n -

RITA NYJOLE SAMOILENKO

Applicant

and

ALLAN MITCHELL McDONALD

Respondent

Application for special

leave to appeal

MASON CJ DAWSON J GAUDRON J

Samoilenko

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1989, AT 3.24 PM

Copyright in the High Court of Australia

AlT 13/1/JM 1 23/8/89

MR M.F. GRAY, QC:  May it please the Court, I appear

with my learned friend, MS B.J. POWELL,

for the applicant. (instructed by Issa Peera,

Legal Services Commission of South Australia)

MR J.J. DOYLE, QC, Solicitor-General of South Australia:

If the Court pleases, I appear with my learned friend, MR A.D. WAINWRIGHT,for the

respondent. (instructed by Crown Solicitor

for-South Australia)

MASON CJ:  Mr Gray, we have read the papers and I think

you might direct your attention immediately

to the question whether you have a sufficiently

arguable ground of appeal.

MR GRAY:  Yes, Your Honour. Indeed, our whole application

really stands or falls on that particular

question. Your Honours have in the appeal

book set out at pages 4 and 5 the relevant

aspect of the legislation. Your Honours will

see that we are concerned about an interpretation

of section 28 (1) (b) of the SUMMARY OFFENCES ACT

which is one of five sections under the heading

of "brothels" and the relevant section is

section 28(1)(b), which is:

A uerson who -

(b) receives money paid in a brothel

in respect of prostitution,

shall be guilty of an offence.

We say that this is really a simple question

of construction that has become obscure for reasons

which I do not think I need to go into too much except

to say that it is mainly related to the use by

the police of what have been described as

agents provocateurs · in relation to the gathering
of evidence tor offences. The earlier cases in

this matter concentrated their attention on
the notion that the receipt in section 28 of the money contained a requirement of intention
to possess. In order to get to that point the

court, in previous cases, made an assumption which

we say is flawed, and that assumption is that the

receipt and payment referred to in section 28 are

correlatives of the one transaction. It is that

view that has infected the reasoning of all of

the earlier cases. That that is so is clear

also from the way His Honour Justice White reasoned

in this matter. If I draw Your Honours' attention

to what he said in the application book at the

bottom of page 8 where he refers to an earlier

judgment of OLDFIELD V SA.i'1UELS, and the former

Chief Justice's reasoning in that case, v;e

say that this really illustrates the point that we

are making. He says, four lines from-the bottom:

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Indeed, Bray C.J. specifically held that

payment and receipt are co-relatives of the

one transaction and it did not matter

that the constable did not intend to have

intercourse.

He goes on to support that by a discussion that

took place by the former Chief Justice of the

phrase "in respect of prostitution" because

in that earlier case the difficulty that arose

in that case was really the difficulty of

attaching the words following "paid" to the

notion of the receipt of money. In particular,

His Honour there discusses the association of

those words of the payment occurring in a particular

place for a particular respect.

Then His Honour goes on to make the

observation, at about line 13 of his judgment

in OLDFIELD V SAMUELS, where His Honour says:

"Moreover I should think that the

legislature intended to catch an

investor or entrepreneur who received

dividends out of the takings of the

brothel. It would seem unlikely that

it was only intended to penalize the

receipt of the money in the brothel,

but not outside it."

He then goes on to then attach the words "in

respect of prostitution" and "in a brothel" to

the notion of payment.

His Honour Justice White in commenting

on that passage says:

So money must be paid in a brothel

but it may be received anywhere - inside

or outside a brothel.

We say that that that is just incompatible with

any notion that the payment and the receipt of

the money are correlative of the one transaction.

They must indeed - and that conclusion can only

be reached by divorcing the actions of payment

and the action of receipt of the money into

two categories, and that the section itself has

been turned on its head, whereas originally

the section clearly, on the plain grammatical

meaning of the words, referred to and made an

offence of receiving money which had a particular

characteristic, namely,money which had been

paid in a brothel in respect of prostitution,

that the section, which clearly said that, has been

in some way perverted in its intent to,in effect,

make an offence the payment of the money in the

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brothel to the prostitute as part and parcel
of what is originally only a notion of

committing an offence by receiving money of

a certain description.

There are reasons why that interpretation,

we would say, is the preferable interpretation

but fundamentally what we are saying is that

on a first grammatical reading properly understood that

is what the section directs its attention towards.

It directs its attention to the receipt of

money and it directs its attention then to that

money having a particular characteristic. That

characteristic is not a cotermil1ous characteristic

with the receipt of the money, or a correlative

characteristic, or, as Mr Justice Bright said,

also in an earlier case, that "paid" was the

converse of "received" in the section. None of

those, we say, are so, that there is just clearly

no correlation necessarily implied between those

two concepts and that what has happened in the

past has strained the ordinary grammatical

meaning in order to catch a transaction that

an assumption has been made about.

MASON CJ:  I do not understand why you say that the

interpretation you seek to place upon it

accords with the ordinary gram.matical meaning. I should have thought, subject to anything you

may say, that the words are wide enough to catch

the payment that was made in this case and that

it does not necessarily strain the language

to so hold.

MR GRAY:	I think, Your Honour, we go the other way round.
We say you have to strain the language of the
words used to catch the transaction in this
particular case. You do not have to strain the
language to give effect to the intent, which is
the receipt of money having a particular
characteristic. In order to catch the transaction
must give to "paid II an extended meaning, a meaning that is the subject of these proceedings, you
which we say is not warranted, because the
past participle "paid", referring to a past
transaction, if it is not correlative to the receipt of the money, can only relate to that past transaction, and "paid" does not naturally,
we say, bear the meaning of "is being paid" as
well as "has been paid". So that we would say to bring this transaction within it, one strains the meaning, and unfortunately all of the cases
have made an assumption that this type of
transaction is within in it and have proceeded
on that basis.  ·

MASON CJ: Yes.

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MR GRAY:	We say that the proper approach is to say
first of all:  why should this transaction be
within what is, on our submission, a clear
grarrnnatical construction which would not
necessarily include the transaction. It is,
we would say, therefore for those that would
assert that it is, to show why that should be
so.
DAWSON J:	But youare putting words into the section,

are you not? You interpret it as meaning

"receive money which has previous been
paid in a brothel", but that is not what

it says, because it is the payer who does the

paying and gives the character to the payment

and the payee is the one who receives.

MR GRAY:	Only if it all occurs in the one transaction.
There is no reason to say that the section is
not looking at two separate transactions,on the
face of it, because "paid" is a past action.
If it were intended to catch the situation of
payment and receipt in the one action, "paid"
is the inappropriate participle to do that.
DAWSON J:	How else would you express it?

MR GRAY: "Paid", or "being paid".

DAWSON J:	But the payment is made before the receipt.
MR GRAY:	Your Honour, first of all, in looking at this,
you have got to go back to saying that the section is deal:ing
with receipts, and it ·is the receipt of rroney; the m::mey is then
described.  The money is described as "money
paid in a brothel in respect of prostitution". It is the use of the tense, "paid", the fact
that if it were to be a  coextensive situation
with the receipt, one would expect the
legislature to say, "paid or being paid in
a brothel in respect of prostitution". In
other words, this transaction, we say, requires
words to be imported into the section, whereas
the construction that we contend for which
would exclude this situation, does not require
those words to be imported in.
MASON CJ:	I think the message has been received, Mr Gray,

but whether it has lodged firmly is another matter.

MR GRAY:	With respect, Your Honour, the point is a
very simple point in its terms.

MASON CJ: Yes. It is largely one of impression.

MR GRAY:	Yes, but whilst it is one of impression, one
of the difficulties with this is that,we would
say, it has always started off on the wrong foot

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because there has been an assum~tion which we
say fundamentally is a flawed and wrong
assumption that starts this whole chain. Then,

of course, there are factors which we say would support the interpretation that we would put in respect of it. But, fundamentally, we would

just wish to say that this interpretation, we

say, is open and, we say, should be argued

because, quite apart from anything else, it

creates a species of offence which we say,

on our construction, would not exist.

MASON CJ:  Yes. Thank you, Mr Gray. The Court need not

trouble you, Mr Solicitor.

The Court is of the opinion that the

decision of the Full Court of the Suureme Court

is not attended with sufficient doubt to justify

the grant of special leave to appeal.	The
application is therefore refused.

AT 3.48 PM THE MATTER WAS ADJOURNED SINE DIE

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