District Court of Samoa

Police v James and  Sanele [2012] WSDC 1

Case name: Police v  James  and  Sanele
Citation: [2012] WSDC 1
Decision date: 3rd August 2012
Parties: 
POLICE (prosecution) v METALA JAMES female of Papaloloa and Manono, and SANELE SANELE  male of  Papaloloa
Hearing date(s): 20th & 22nd June 2012
File number(s): D1668/11, D1669/11
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): DCJ Tuatagaloa
On appeal from:
Order:
Representation: 
Corporal Solomona Natia for Police 
Accused in person
Catchwords: 
Words and phrases:
“earning” “prostitution”
Legislation cited:
Criminal Law Amendment Act 1885 s2, 
New Zealand Crimes Act 1961 s149, 
New Zealand Crimes Act 1908 s218,  
Sexual Offences Act 1956 s23
Cases cited:
Calvert v Mayes [1954] 1 QB 342), 
Queen v Johnson (supra), 
R v Webb [1964] l QB 357 (CA))
 Rex v Dc Munck [1918] 1 K.B. 635
 R v McFarlane [1994] 2 All ER 283,
Shaw v DPP [1962] AC 220at 229, 
  R v Clarke [1976] 2 All ER 696, 
Queen v Johnson [1963] NZLR 92 at p.94, 
Regina v Johnson [1964] 2 QB 404 (CA
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE 

Prosecution

AND:

METALA JAMES, female of Papaloloa and Manono

First Defendant 

SANELE SANELE, male of Papaloloa

Second Defendant

Prosecutor : Corporal Solomona Natia for Police (prosecution)
Defendants:  Unrepresented

Hearing: 20th and 22nd  June  2012

Decision:  3rd August 2012

DECISION OF DCJ TUATAGALOA

1.	The court had issued a suppression order regarding the names of the girls involved and the man who was also involved. For the purpose of this decision the girls will be referred to as Nella, Rina and Lusia. The man will be referred to as Mr X.
The Offences: 
2.	 The accused Metala James is jointly charged with Sanele Sanele for knowingly living on the earnings of prostitution under Section 58 L of the Crimes Ordinance 1961.  The two accused are charged with nine (9) counts that on various occasions from between 28th February – 1st July 2011 to have knowingly lived on the earnings of prostitution.
3.	The accused Metala James is individually charged with three (3) counts of procuring sexual intercourse under section 58 M of the Crimes Ordinance 1961.  She is alleged that on various occasions between 31st March – 1st July 2011 to have procured, or agreed or offered to procure the girls Nella and Rina for gain or reward to have sexual intercourse with Mr X  who  is not her husband.
The Penalty:
4.	Both offences carry the penalty of imprisonment of not more than 3 years.
The Facts:
5.	The two accused Metala James and Sanele Sanele were in a de- facto relationship and living at Malololelei.  The accused Metala James was managing the Malololelei Resort.  Contrary to the name the Malololelei Resort is not a ‘Resort’ as in Aggies Resort type of hotel but accommodations type of units.  It was not clear from the evidence as to what sort of clientele who rents or stay at the Malololelei Resort.
6.	The accused Sanele Sanele is a taxi driver and it is alleged that the girls involved in prostitution used his taxi as transport to and from the park opposite the Tanoa Tusitala Hotel. 
7.	The girls involved were invited by the accused, Metala to stay at Malololelei in one of the units from March – July 2011. These girls are not related to any of the accused.
The Law: 
(a)	Living on the earnings of Prostitution:
8.	It is not the earnings of prostitutes, that is in question but the earnings of prostitution. This section has two (2) facets:  
(i)	Were Metala and Sanele living on the earnings of prostitution; and
(ii)	Were they knowingly doing so.
9.	The word “earnings” was not restricted to receipts by prostitutes themselves but extends to all money paid in respect of prostitution, no matter into whose hands it may go. (see: Calvert v Mayes [1954] 1 QB 342)
10.	Proof of payment is not necessary.  That is, direct proof of payment or gain may often be impossible but this element will be readily inferred from the circumstances. (see  R v De Munck [1918] l KB 635 (CA) cited in Adams on Criminal Law, Student Edition, Brookers Ltd, 1996, see also R v Webb [ 1964] l QB 357 (CA))
 Q:  What is prostitution?
11.	The case of R v Webb [1964] 1 QB 357 at 365, Darling J said that “prostitution means the offering by a woman of her body commonly for lewdness for payment.”  The case of R v Webb uphold an earlier decision in the case of Rex v Dc Munck [1918] 1 K.B. 635 where the court held that ‘lewdness’ is not confined to the gratification of normal sexual appetite. The case of R v McFarlane [1994] 2 All ER 283 held that prostitution was the making of an offer of sexual services for reward.
Q: Did Metala James and Sanele Sanele knowlingly live wholly or in part on the earnings of the prostitution of Nella, Rina and Lusia?
12.	In the case of Calvert v Mayes [1954] 1 QB 342 the defendant in this case was habitually in the company of prostitutes.  He exercised direction and influence over the prostitutes’ movements and generally aided and abetted prostitution in that he knowingly permitted and encouraged the use of his house and a hire-car driven by him for the purposes of prostitution.    The prostitutes received no money from the men concerned, their remuneration being in the form of food, drink, clothes and entertainment nor did they pay any money to the defendant but he received money from the men for the use of his house and his car which, but for the prostitution, he would never have received.
In Shaw v DPP [1962] AC 220at 229 says
“If a man knowingly assists a prostitute with the direct object of enabling her to carry on her trade and knowingly lives wholly or in part on the earnings of prostitution which he insists, he is, in our opinion is guilty.”

13.	Shaw v DPP held that a person might fairly be said to be living in whole or in part on the earnings of prostitution if he was paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes.
In R v Clarke [1976] 2 All ER 696 says that:
“Where a male person is proved to live with or to be habitually in the company of a prostitute and has no visible means of subsistence, he shall, unless he can satisfy the court to the contrary, be denied to be knowingly living on the earnings of prostitution.”

The Evidence:
14.	The two accused Metala James and Sanele Sanele are charged with this offence that they were living on money received by Nella  and Rina from prostitution with Chinese men. They are also accused of living on the earnings of prostitution by the girl named Lusia.  It is alleged that Metala would come with Nella and Rina to the park opposite the Tanoa Tusitala Hotel where she would sit on the seawall and collect the money either from the girls or from the Chinese men who these girls were prostituting themselves to. 
15.	Sanele Sanele is alleged to have used his vehicle to transport the girls to and from Sogi and that he would also receive money from the girls’ prostitution.
16.	Metala James disputed the evidence by Nella and Rina that she did not or never went with the girls to Sogi as she has a business and two (2) young children to look after.  She said that she never collected any money from the girls but they themselves willingly gave it to her to buy them food, drinks and cigarettes.
17.	Sanele Sanele gave evidence that the girls would call him to pick them up from Malololelei and drop them off at the park opposite the Tanoa Tusitala hotel.  He said that he would pick them up and drop them off if they called and he did not have a passenger at that time.  His evidence was that they were using his services as a taxi driver and he was doing so because he is a taxi driver.
18.	The girls Nella and Rina gave evidence that it was almost every evening that they would come to Sogi at the park opposite the Tanoa Tusitala Hotel from April – June 2011.  Most of the times Metala would bring or come down with them to this park where the Chinese men, who were constructing the new government building next to the Tanoa Tusitala would be sitting on the seawall waiting for them.  They gave evidence that all the money would be either given to Metala by the Chinese men or Metala will get it off them if the Chinese men gave them the money.  These two girls said that the money ranged from $10 - $30 per man.  Each would normally take 3 – 5 men per night.
19.	The girls said that sometimes the money they got from the Chinese men that were given to Metala would be used by Metala to buy food and drinks for all of them including Metala and Sanele. Nella and Rina said that they sometimes use Sanele Sanele’s taxi to come to the park at Sogi or they would call him afterwards to take them home.
20.	Lemalie Hunt who is said to be a friend of Metala James and was also staying at Malololelei gave evidence that she would sometimes come with Metala and the girls to the park opposite Tanoa Tusitala Hotel.  There the Chinese men will be waiting for the girls.  She said that all the money will be given to Metala and sometimes if Metala is not there the money will be given to Sanele.  She also said that it was not all the time that Sanele’s taxi was used by the girls as sometimes Sanele was with a passenger and was not available to pick them up or drop them off.
21.	Metala made a statement to the police dated 29 June 2011. The statement clearly showed that Metala knew what these girls were doing when she took them to her place at Malololelei to stay.  She also admitted that she received money from these girls from their prostitution activities.
22	Statement dated 1 July 2011 by Sanele to the police on p.3 he told the police that he knew what these girls were doing and that they would give him money that he would use to buy them food and drinks.
23.	The girl Lusia gave evidence that Sanele and Metala picked her up from Eden’s Edge and they went to Sinalei.  When they got to Sinalei Metala spoke on her mobile phone and she and Metala went to a room where a palagi man was waiting.  She said that the palagi man gave Metala $200 and she had sex with this palagi man.
24.	Metala gave evidence and said that Sanele came to Malololelei with Lusia and a palagi man.  Lusia asked her for a room to spend the night with this man.  In the early hours of the next morning Lusia came and woke her and Sanele if they could go to drop this man at Sinalei.  Metala said that the $200 the man gave her was to pay for the room.
25.	Sanele said that Lusia called him to pick her up from Eden’s Edge for Malololelei. When he arrived at Eden’s Edge Lusia was with a palagi man.  He went and dropped them off at Malololelei and left as he was still working.  He said that he was called at 5.30 am the next morning to take the palagi man to Sinalei and Metala and Lusia went with him to drop the palagi man off at Sinalei.
The Law:
(b)	Procuring Sexual intercourse: section 58M
26.	Section 149 of the New Zealand Crimes Ordinance 1961 is exactly the same as section 58M of the Samoa Crimes Ordinance 1961. The New Zealand case of Queen v Johnson [1963] NZLR 92 at p.94 held that the word “procures” as in section 149  is used with its ordinary meaning, namely, “obtains, arranges or agrees to supply” all of which are meanings to be found where the phrase “procures a woman” is involved. The court held that section 149 which replaced section 218 of the Crimes Ordinance 1908 made it not necessary to show or prove that the woman or girl in question had been coerced or persuaded against her will to act as she did. The court held that the emphasis in this section is directed against persons who, for gain or reward either procure or agree or offer to procure a woman or girl of any age to have sex with any male who is not her husband.  
27.	The English case of Regina v Johnson [1964] 2 QB 404 (CA) where a girl under the age of 21 years was said to have been procured to have sexual intercourse with Mr Johnson which sexual intercourse never took place. Argument was advanced by Mr Johnson’s counsel that for there to be an offence under section 23 of the Sexual Offences Act 1956 by which Mr Johnson was charged with, sexual intercourse must actually have taken place. The argument was the girl was procured to have sexual intercourse with Mr Johnson but not “for the purpose” of sexual intercourse.  The court held that to be an offence under section 23 sexual intercourse must actually have taken place.
28.	Section 2 of the Criminal Law Amendment Act 1885 upon which the English case is brought under is different from section 149 of the New Zealand Crimes Act 1961. Section 2 of the above English statute is directed at making provision for the protection of women and girls. Section 149 of the New Zealand statute has wider implications. The emphasis under this section is directed against persons who, for gain or reward, either procure or agree or offer to procure a woman or girl of any age to have sexual intercourse with any male who is not her husband. The above section 2 of the English statute and case would have relevance if section 218 of the New Zealand Crimes Act 1908 was still in operation but section 218 was replaced by section 149.
29.	This court agrees with Queen v Johnson (supra) that this offence is directed against people who for gain or reward either procure or agree or offer to procure a woman or girl for the purpose mentioned in the section. This court takes the view that the essence of this offence under section 58M is the act of procuration and there is no need for sexual intercourse to take place in order for it to be an offence.
The Evidence:
30.	The accused, Metala James gave evidence that she never spoke with Mr X whom she had procured or offered or agreed to offer the girls Nella and Rina to have sexual intercourse with this man.  She said that these girls sometimes used her mobile phone to make calls and it was the girls who contacted Mr X but not her.
31.	The girl Nella gave evidence that sometimes in May 2011 she came with Metala to the Eden’s Edge Hotel at Togafuafua.  When they arrived Metala spoke on her phone and then they went to a room in the hotel where a man whom she later found out to be Mr X came out and spoke with Metala and then she left her with him.  She had sexual intercourse with Mr X who then gave her $30 which she gave to Metala.  Again in June 2011 she went with Metala to Tauese where the same man Mr X was waiting in his car.  Metala told her to go with Mr X which she did and they went to Taumesina.  Mr X told Nella that he had paid Metala for five (5) minutes.
32.	The girl Rina gave evidence that Metala brought her to the Eden’s Edge Hotel three times during April – June 2011 where she would have sex with Mr X.  She said that Mr X would give money to Metala but he would also give her money afterwards which she would give to Metala. Rina said that she stayed at Malololelei at one of the units with Nella, Lusia and two other girls from April – June 2011.
33.	Mr X gave evidence and said that Metala would call him that she has a girl for him.  He said that he would book a room at the Eden’s Edge Hotel where Metala would bring him a girl.  Mr X said that for 3 months from April – June 2011 Metala would provide him with a girl for sexual intercourse and  he paid  $30 - $50 each time. He said that he sometimes paid the money to Metala and other times he would give it to the girls who in turn gave it to Metala.  Asked how he would know that the money he gave to the girls was handed over to Metala and he said he asked the girls and that is what they told him.
34.	Mr X remembers the two (2) girls Rina and Nella. He said that he only had sexual intercourse with Nella once and the other times were only oral sex.  He said that he had the same arrangement with Metala concerning Rina but it was purely oral sex with Rina during those three (3) months. Mr X said he had met Metala and he identified her in court.
35.	Metala made a statement to the police which she confirmed arrangement she made with Mr X.  Statement made on 27 September 2011, p. 2 paragraph 2:
		“O le mataupu lea e faapea i lo’u aumaia o Rina ma Nella, e sa’o
		E kusa e vili aku le kamaikaiga lea o Lusia ma Mr X oga sau 
		Lea o Sagele e momoli mai le aukamaikaiga lea, o le kupe la lea e
		maua, e pei ai le kaavale a Sagele ae ese ai lau kupe e kolusefulu
		e o aku lava fai mai ga avaku.”

Conclusion:
(a)Living on the earnings of prostitution: section 58L
36.	The court finds that there was ample evidence that the accused Metala James and Sanele Sanele knowingly live wholly or partially on the earnings of prostitution of Nella and Rina. The two accused knew what these girls do for a living and they received money from their prostitution activities.
37.	Information D1668/11, D1669/11, D1671/11 and D1673/11 are proven beyond reasonable doubt.
38.	The court finds that there was not enough evidence to prove beyond reasonable doubt Information D1665/11 that both accused were living on the earnings of prostitution of Lusia. This charge is hereby dismissed. 
39.	Information D1666/11 and D1667/11 are dismissed as there was no evidence at all provided by the prosecution to prove these charges.
40.	Information D1670/11 and D1672/11 are duplicates of D1671/11 and D1673/11 and are dismissed.
(b)Procuring sexual intercourse: section 58M
41.	The court finds there was ample evidence that the accused, Metala James received money from procuring the girls Nella and Rina to have sexual intercourse with Mr X on various occasions from 31st March – 1st July 2011. 
42.	Information D2472/11, D2473/11 and D2475/11 are proven beyond reasonable doubt.
43.	Information D2474/11 is dismissed by the court as there is not enough evidence to prove this charge beyond reasonable doubt. The evidence of Rina and Mr X was April – May 2011 and that is within the time frame of D2472/11. 
Verdict:
(a)Living on the earnings of prostitution: section 58L
44.	Both accused Metala James and Sanele Sanele are found guilty of four (4) counts of knowingly living on the earnings of prostitution: D1668/11, D1669/11, D1671/11 and D1673/11
(b)Procuring Sexual Intercourse: section 58M
45.	The accused Metala James is found guilty of three (3) counts of receiving money from procuring the girls involved to have sexual intercourse with Mr X on various occasions from 31st March – 1st July: D2472/11, D2473/11 and D2475/11.

	         					  Judge  Mata Keli Tuatagaloa