Sharp v Killeen

[1988] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml4 of 1988

B e t w e e n -

ADRIAN JOHN SHARP

Applicant

and

ALAN JOHN KILLEEN

Respondent

Application for special leave

to appeal

WILSON J
DAWSON J

GAUDRON J

Sharp

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 AUGUST 1988, AT 2.54 PM

Copyright in the High Court of Australia

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MR B.F. MONOTTI: If the Court pleases, I appear for the

applicant in this matter. (instructed by

Mark G. Caldwell)

MR H. BERKELEY, QC, Solicitor-General for Victoria: If

the Court pleases, I appear with my learned friend,

MR A.K. PANNA, for the respondent. (instructed

by the Victorian Government Solicitor)

WILSON J:	Yes, Mr Monotti.
MR MONOTTI:	If the Court pleases. May I hand to the Court

copies of my outline of submissions and also copies of the relevant legislation being the VAGRANCY ACT 1966 of Victoria together with copies

of certain authorities I propose to refer to.

WILSON J:	Yes, thank you, Mr Monetti.
MR MONOTTI:	This is an application for special leave to

appeal from a decision of Mr Justice O'Bryan upon the return of an order nisi to review a

decision of a magistrate dismissing an information

brought by the respondent against the applicant

under the provisions of section 11(1) of the

VAGRANCY ACT 1966. ·

WILSON J:  The Court is familiar with the contents of the

application book, Mr Monetti, so I think you

can come straight to the points. that warrant

special leave.

MR MONOTTI: First of all, the point of importance upon

which I first rely is that it is my submission

that the words in parenthesis which were introduced
into section 11(1) are not merely words of exemption
as His Honour found but are words of definition
and that not only is the question of whether

or not the informant subject to the onus of proof

a matter of importance but also it is a question of

whether ornot those words in parenthesis may

be regarded when interpreting the meaning of

the word "brothel" in the provision.

His Honour found that the words in parenthesis

were merely words of exemption, that there was

no onus upon the informant, and His Honour then

proceeded to make certain findings as to the

meaning of the word "brothel". My first point

is this, that it is a question of general importance

as to whether these words in parenthesis are
words which ought to be taken into account when
determining the meaning of the word "brothel"

and· whether an offence under this section includes

as one of its elements what is to be proved as

set out in the words in parenthesis.

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This provision, in its present form, has not been the subject of any reported decision

so far as I am aware and I submit that this is

the first time then that this provision has come
before a superior court, being before a single

judge as it did in the course of these order to

review proceedings and the next step now can

only be to this Court. And it is my submission

that given the uncertainty which must surround
this provision and its interpretation it is a

matter of general importance as to the way in

which it should be interpreted and there is now

a need for a definitive decision upon this question.

I should also say at this stage, when dealing

with this question of the effect of the words
in parenthesis that there is, in my submission,
strong reason to doubt the correctness of
His Honour's decision that they are words of
exemption only. It is significant, in my submission,
to note that the words in parenthesis were

introduced together with section 12A. And

section 12A(2) provides:

For the purposes of sections 11 and

12, premises shall be treated as a brothel,

bawdy-house or disorderly house if resorted

to by people of both sexes, or of either

sex for the purpose of engaging in prostitution.

WILSON J: Which section 12 - is it in the 1984 Act, you

are referring to or the VAGRANCY ACT?

MR MONOTTI:  Of the VAGRANCY ACT,· Your Honour, section 12A

which was introduced - - -

WILSON J: I beg your pardon, I have it, I was looking

at section 12.

TOOHEY J: How does that help you, Mr Monetti? If anything,

does it not point up the fact that the words

in parenthesis are by way of exception?

MR MONOTTI: It is my submission that the introduction

of 12A(2) has demonstrated that what the legislature
then had in mind was - that the legislature had

proceeded upon the understanding or assumption that

a brothel was premises:

resorted to by people of both sexes, or

of either sex for the purpose of engaging

in prostitution -

and that the repetition or the use of those words in the words in parenthesis bears that

out. That is, it is the only qualification

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which the legislature chose to include 1n

section 11(1).

And so, I would be proposing to move from

there to argue that when interpreting the scope

of section 11(1), and then looking at the meaning
of the word "brothel", that meaning must be confined

to premises:

resorted to by people of both sexes, or
of either sex for the purpose of engaging

in prostitution -

and ought not to go beyond.

TOOHEY J:  I thought you were using that to support the

proposition that the words in parenthesis were

not merely words of exception but went somehow

to spell out the nature of the offence that was

created?

MR MONOTTI:  I am, indeed, Your Honour, in that I am submitting

that the words in brackets in section 11(1) were
introduced for the purpose of qualifying the

word "brothel" as opposed to providing an exemption

alone. The provision may, in my submission,

now be read as if it were to the effect that:

Any person who keeps or manages or

acts or assists in the management of .....
premises to which people of both sexes,
or of either sex, resort for the purpose

of prostitution -

which are not the subject of a permit for that

purpose and so on. And if that is a fair analogy

then the words in parenthesis are not merely

words of exemption they are words which form

part of the definition of brothel.

My submission then, in that regard, is that that is a matter of general importance and it

is a matter attended with sufficient uncertainty

as to require definitive determination by this

Court. My next point which I submit is a matter

of importance and relatively speaking, perhaps,
of greater importance than the first and that

is that the meaning of the word "brothel", in

this particular case - or, this case has called

for there to be a definitive decision upon the

meaning of the word "brothel" and its scope.

In particular, first as to whether that word, in the context of section 11(1), ought to be given a meaning which extends beyond premises

used for the purpose of prostitution.

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There is scope, if one applies the common

law authorities in relation to the meaning of
"brothel" for a broader definition to be given

and, indeed, this is - - -

WILSON J: In other words, premises resorted to for illicit

sexual activities without the need to prove

prostitution?

MR MONOTTI:  Yes, Your Honour.

WILSON J: And you say that the amendments in 1984

incorporated an additional element into the offence

of brothels that was not satisfied in this case?

MR MONOTTI:  I do, and I submit that the word "brothel"

is capable of either an extended definition

by the application of the common law authorities.

WILSON J:  And which it was without question, I take it,

before 1984?

MR MONOTTI: 

I do not concede that, Your Honour, .because

those authorities are authorities which.have
developed from Victorian times and with the passage
of time·what might be regarded as illicit sexual
connection may well change its character.

WILSON J: 

Even in Victoria?

MR MONOTTI: 

Even in the State of Victoria. It is my

submission that it is significant that these

authorities seem to have been passed from one

to the other through the passage of time without

it really being questioned as to whether the

fundamental lynchpin of what is illicit sexual

connection is a variable. It is my submission

that unquestionably it is a variable; whether

there has been sufficient variation between

Victorian times and now is open to doubt.

But, more importantly, in this particular

case, the Court is not ·being asked to deal with
the common sort of premises where there is illicit sexual
connection but one is being asked to deal with

premises where the only sexual connection is

homosexual and that raises, in itself, a particular

question of importance, in my submission, because whilst one could still argue today, even in these modern times, that fornication of the type considered

in the earlier cases at premises where resort

was made generally for that purpose, which is hetrosexual contact, may still be regarded

as illicit. It is my submission that it is strongly

arguable that homosexual connection could not
be regarded as illicit by the application of

those authorities.

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TOOHEY J: We have come a long way if we have reached that

position, have we not?

WILSON, J:  Are consenting acts - homosexual acts between

adults no longer an offence in Victoria?

MR MONOTTI:	No longer an offence.
WILSON J:	The criminal law has been changed, has it?

Has it been decriminalized - sodomy?

MR MONOTTI: It is not an offence - sodomy is -

WILSON J:  I am sorry, I had not realized it was a difficult

question.

MR MONOTTI:  No, ,Your Honour, I apologize for not being

able to answer it quickly.	Sodomy remains an
offence.

WILSON J:	I see, but gross indecency?
MR MONOTTI:	Gross indecency is an offence.

WILSON J: So, it has not - I mean, in some States, as

in England, I think, between consenting adults

homosexuality has ceased to be attended with criminal consequences. That may not make it any the less illicit but at least that is not

the case in Victoria, in any event.

MR MONOTTI:	No, Your Honour.
WILSON J:	So one could say your proposition is that although

it is illegal it is not illicit?

MR MONOTTI:  Yes, Your Honour. I have perhaps jumped in

too readily. Illicit when one considers the

application of the authorities dealing with the

common law definition of "brothel".

TOOHEY J:  But that is because you would seek to fix that

definition in time and take it back to a period

some 100 years ago, is that right?

MR MONOTTI: 

Yes, I submit those authorities are either not

apulicable at all or ,if they were, they a re no
longer applicable.

TOOHEY J: Yes, you have a finding of fact against you,

have you not, Mr Monotti, that the money paid

by a person to join this club was paid for the

purpose of sexual activity? I am not sure that

it is precisely in those terms.

MR MONOTTI:  The finding, Your Honour, of which - and I

think the finding to which Your Honour is referring

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me to is that at page 41:

The evidence showing that each male person paid to gain entry to the premises for the purposes of sexual intercourse or sexual

gratification with other persons - - -

GAUDRON J:  Mr Monotti, how does that argument relate with

your reliance upon section 12A as part of the

offence constituted by section 11?	I mean, clearly
it says:

of either sex for the purpose of engaging

in prostitution.

It presupposes that there may be prostitution

between members of the same sex, does it not?

MR MONOTTI:  With respect, Your Honour, not necessarily.

It may be there could be prostitution provided by a male for a female or a female for a male.

GAUDRON J:  One knows all the possibilities, Mr ~onotti.

The question is: does not section 12A(2j posit that there may be acts of prostitution as between

members of the same sex?

MR MONOTTI: It is my submission that

GUADRON J: And if it does not do that, what else do the

words:

if resorted to by people of both sexes,

or of either sex -

add to subsection (2)?

MR MONOTTI:  I think the only answer I can give to that,

Your Honour, is that it extends no further than

being a direction to either sex but it is not

to say that it is to be other than hetrosexual.

WILSON J:  Then, "or of·eithe1: sex", really adds nothing

to the "resorted to by people of both sexes",
because if you left out those words it would
correspond to what you have been putting as to

the common law concept of a brothel, hetrosexual

illicit intercourse? That is, a place:

resorted to by people of both sexes ..... for

the purpose of engaging in prostitution.

MR MONOTTI:  When putting that argument, Your Honour, I

am a~suming that the provider is already at the

premises.

WILSON J:  I see.

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MR MONOTTI:  And so, it could be both going to the premises

where the service is provided or it could be
of either going to the premises where the service

is provided. Section 12A(2), in my submission,

does not - - -

WILSON J:  I think we have the point that you make,

Mr Menotti.

MR MONOTTI:  But that, notwithstanding His Honour's finding

as to payment, it is my submission that there

is then a question of importance as to whether

what His Honour found can, in any event, constitute

prostitution. The payment is made at the door

and His Honour has found that there is attendance

for the purpose but then there was no finding

or evidence as to the persons who were providing

the services engaging in any trade or business

of so providing those services or themselves

receiving any financial reward for it.

And that then raises the question as to whether prostitution can be defined in·terms

so broad as to arise when there is mere payment

at the door for entry to such premises or whether

one must go further and find that the persons

who are providing the services are themselves carrying on a trade or business of providing those services and receiving money for them or

money being paid in respect of the provision

of those services from which they receive benefit.

WILSON J: There are two points in there, are there, the

last mentioned point being simply the straight out question of, "If prostitution requires the exchange of money in return for sexual favours

was there evidence here - if it was necessary -

that the premises were kept for the purposes

of prostitution?" And the payment of an ingoing

of $11, in return for which you get a condom	and access to the facilities of the club, in	your submission would not satisfy that requirement
if the requirement was present?

MR MONOTTI:	No, Your Honour, that is my submission.
WILSON J:	Do you make the further point that I see on

page 16 of the appeal book that it is only a
brothel if there are people there who satisfy

the description of prostitutes as being people.

who presumably, not habitually, but are there

for the purpose of providing sexual favours in

return for money?

MR MONOTTI:  I do, Your Honour.

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WILSON J:  I suppose that could be said of these casual

members of the club, in one sense? They are

members of the club and, presumably, derive some

benefit from the payment of money that includes

the provision of services by other patrons of

the club.

MR MONOTTI:  Your Honour, they may or they may not. On

the evidence they were members who attended,
enjoyed the services of the club but they would
enjoy the benefits of payment at the door on

this evidence no more than the member of any

other association where there is a payment made

for the group benefit.

WILSON J:  The group benefit consisting of the exchange

of sexual favours?	If that were a fair inference,
from the evidence,	would you have any real ground
for complaint?

MR MONOTTI:  I would submit that I would still have my

points and that is that there is still not evidence

of the favours being provided in the way of a __

trade or business which I would submit ·is an

essential element of prostitution.

TOOHEY J:  What His Honour has said, at page 41, Mr Monotti,

about line 10, was this:

The evidence showing that each male person paid to gain entry to the premises for the purposes of sexual intercourse or sexual

gratification with other persons proved
that the premises were being used for the

purpose of prostitution.

That, as it were, provides the link between

the payment of money and the sexual favours that

were being exchanged. Can you quarrel with that

proposition?

MR MONOTTI:	I do, to this extent, Your Honour, and that is that that must be interpreted in the light
of the evidence which was there and it was simply
this, that there was payment to gain entry and
that favours were provided by certain persons
there for others who came but what may have been in th~ minds of those who came would be a matter
for inference but no more.  And even if one attended
with an ulterior motive to achieve some sexual
benefit, if His Honour's approach were applied
generally, that could well catch many other places
the proprietors of which would be horrified to
think that their premises could be described
as "brothels", being places such as, places of
entertainment where persons attend for the purpose of making contact with others and social contact
and the like.

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WILSON J: Sexual contact. You have got to go to the extent

of saying "sexual contact" to the knowledge of

the proprietor or the manager.

MR MONOTTI:  Yes, Your Honour. I think I can go so far.

In this day and age it could be said -

WILSON J: That would open a whole range of premises that

were liable to be charged, or persons?

MR MONOTTI:  Yes, it would be my submission that His Honour's

approach could well do that and therefore it

is a matter of great importance.

WILSON J: If in the Victorian JUSTICES ACT, I suppose

it is, if there is an order to review the decision

of a magistrate, can it be taken direct to a

Full Court? I appreciate if it goes to a single

judge it is final for the purpose of the Victorian

law. Can it be taken direct to a Full Court?

MR MONOTTI:	Yes, Your Honour.
WILSON J:	So if these horrendous possibilities were to

occur in the future there might be an avenue

for having the Full Court rule on the questions

that might then arise?

MR MONOTTI:  Yes, certainly, but in the present case there

is not only that aspect but there is also that

aspect in combination with the fact that the

premises here were used by homosexuals only and

so this case, in my submission, calls for a definitive

determination of, first, the meaning of "brothel",

whether that should be limited to premises used

for the purpose of prostitution; if so, what

is· prostitution? Can prostitution be found

in circumstances, as in this case, where there

is no payment to the persons providing the service

directly, and there is no suggestion of any of

them engaging in a business or enterprise and

whether -

GAUDRON J: But, Mr Monotti, one is familiar with the

. " h h. 1 d " L et us assume

expression t e w 1te save tra e .

that they were being held against their will,

did not engage in any trade or enterprise on

their own account and received no wages but the

proprietor or proprietress charged to go through the door, would there not still be prostitution?

MR MONOTTI:  There would be prostitution, I would have

to accept that, Your Honour. I do not seek to

argue against that proposition, Your Honour,

at all. My argument is that in this instance

it is mere payment at the door with no suggestion

that any of those inside are other than patrons

who themselves have paid at the door to attend

this social club, as it has been described.

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GAUDRON J:  Yes.

MR MONOTTI: I, with respect, would submit that if it were

shown that the premises were such, as Your Honour

put to me, then there would be a trade or business

connected with the provision of the services

and that is an element which is missing here

and, in my submission, it is a matter of importance

now as to whether or not prostitution can be

regarded in this very general way in which

His Honour has regarded it or whether it must

be tightened up to be limited to the provision

of services for reward, be it the reward of the

actual provider or the person who is controlling

the providers but in the course of a business

as such.

If that is right, and ·if it is correct also

to say that the word "brothel" must be defined

in a more limited sense in this day and age,

by reference to use of premises for prostitution,

then this particular case points up those issues

in the clearest terms and gives rise to.matters

of great public importance, in my submission,

and in combination with this other issue of the
nature of the sexual activity.

I -have, -in my outline, referred to the, ex?re$sion "illicit" as it appears in the older

authorities, dealing with the common law definition,

and this:again, in this particular case, having

regard to the fact that we are dealing with

homosexual conduct, points up in.clear terms,

in my submission, the question of whether or

not or the way in which that definition may be

applied, if it is to be applied at all, to the

meaning of "brothel" as .it now appears in

section 11(1).

And for all those reasons, it is my submission

that these questions are, indeed, matters of

great importance and public interest, calling

for definitive determination by this Court.

If the Court pleases.

WILSON J:  Thank you very much, Mr Monotti. The Court

need not trouble you, Mr Solicitor. Despite

the interesting submissions of Mr Monotti, the

Court has come to the view that the decision

of Mr Justice O'Bryan is not attended with sufficient

doubt to warrant the grant of special leave and that

therefore special leave should be refused in

this case.

AT 3.26 PM THE MATTER WAS ADJOURNED SINE DIE

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