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Aligao v R [2023] SBCA 6; SICOA-CAC 20 of 2022 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Judgment of the Court

1. On 1 July 2022, convictions were recorded against Mendana Aligao (the Appellant) regarding nineteen offences of rape, contrary to section 136 of the Penal Code and five counts of indecent assault, contrary to section 141 (1) of the same legislation.
2. A trial had previously taken place between 30 July and 14 August 2019. The verdict from that trial is that delivered on 1 July 2022. During the interim period, the Appellant remained in custody. That period is unacceptably long to await a verdict.
3. In an information filed on 2 February 2018, offences were alleged between 2002 and 2014, all said to have been committed against the same female. Forty-four offences were alleged, but only twenty-four of those allegations were the subject of evidence, and the remaining twenty were withdrawn.
4. By an amended notice of appeal, filed with leave, the Appellant raises three grounds of appeal. In the first ground, it is submitted that the Appellant was denied a fair trial given that the twenty charges not the subject of evidence were not withdrawn before the calling of evidence. The second ground of appeal raises what is said to be an error of law in failing to apply the correct standard and onus of proof. Finally, it is said that the convictions are unsafe and unsatisfactory given the trial judge's lack of proper assessment of the evidence.

Background

5. The child’s mother, said to have been abused by the Appellant, moved in with him, although still married to another in 2001. The Appellant thus became the de facto stepfather to the girl at that time, and the abuse is said to have begun the following year when the girl was a child of seven years of age. It started with indecent assault and graduated to complete sexual intercourse by 2006. The alleged offending did not then come to light, but the girl became pregnant in 2007. It was not until following the mother’s death in 2014 that the full extent of the alleged offending became apparent as the girl, after counselling, voluntarily made a complaint to the police.

Appeal Ground 1

6. On 30 July 2019, when the trial was to begin, the prosecution indicated the intention to proceed on only 24 of the 44 offences set out in the information. Those twenty-four offences were identified and were the only charges put to the Appellant for him to enter any plea. The plea entered to each of those twenty-four charges was not guilty.
7. This ground of appeal questions whether the Appellant could receive a fair trial as the remaining charges were not withdrawn before evidence was received on the balance.
8. Criminal trials in this jurisdiction are before a judge alone. The position may be different were the trial before a jury, but as the judge in this jurisdiction decides both law and fact, it is difficult to see how there was any prejudice to the Appellant in adopting this procedure. Counsel on the appeal was asked to identify the prejudice said to exist such that no fair trial was possible and was unable to identify any such prejudice.
9. Whether withdrawn before or after the reception of evidence, it appears to make little, if any, difference in the appellant’s trial. From the start of the trial, the position was abundantly clear. There is nothing that the trial judge knew from the proceedings that he should not have known throughout.
10. To suggest that a trial judge could not set aside charges that had either been withdrawn on an earlier occasion or, as in this case, were to be withdrawn at the close of the prosecution and deliver a verdict on the evidence presented without pointing to any specific prejudice arising is not a tenable argument.
11. This ground of appeal lacks merit and is dismissed.

Appeal Ground 2

12. The second ground of appeal raises the onus and standard of proof in a criminal trial. This ground relies upon a remark made by the trial judge in his verdict at paragraph 2 of page 10 (Appeal Book page 17) when he said: -
    • “With this case the evidences of the complainant are not challenge as the accused decided to remain silent and did not call any witness.”
13. The appearance of that sentence quite properly raises a concern about whether the trial judge has reversed the onus of proof. It could also suggest that there was no challenge to the evidence of the complainant, which there was.
14. Complaint is also made of the statement from the trial judge later on the same page of his judgment when he said: -
    • “The accused with the submission by the Defence counsel just stated that he did not indecently assault and did not have sex with her and nothing further than that.”
15. Those two remarks must be taken in the context of the judgment as a whole. On page 2 of his decision, the trial judge sets out the standard and burden of proof on the Crown. Summarising the defence case, on page 9 of his judgment, the trial judge sets out the defence case as put during the trial. He notes that the Appellant has put the Crown to proof of the allegations. He states that the defence reminded the Court that the Appellant has no onus to prove his innocence. He further summarised the issues flagged by the defence during the trial, such as missing opportunities to report the offending earlier to relatives and not attempting to cry out to attract attention.
16. In his conclusions, the trial judge finds that the prosecution has proved the offences beyond reasonable doubt based on his assessment of the complainant’s evidence.
17. Taken as a whole it is clear from the judgment that the trial judge has not reversed the onus of proof and that the correct standard of proof has been applied within the trial.

Appeal Ground 3

18. This ground raises whether the convictions are unsafe and unsatisfactory. The suggestion is based on what is said to be a lack of assessment of the evidence of the complainant.
19. Evidence in the trial came from two prosecution witnesses, the complainant and her aunty. The evidence from the aunt was limited to a description of a house once occupied by her sister-in-law and de facto husband as well as a visit to the doctor with the complainant when she was pregnant.
20. The evidence from the complainant covered all of the alleged offences. The questions put in cross-examination comprised suggestions that things did not happen, not just as described but at all. There was no acceptance by the witness of these negative propositions.
21. Based on that scenario, there was not a great deal of assessment required. The case firmly resides in the he said, she said area and the trial judge was provided with little material other than the evidence of the complainant to make an assessment. He reviewed the complainant’s evidence concerning each charge and determined that she was a credible and reliable witness. He accepted her explanation as to why she had not told others who was responsible for her pregnancy and why she had suggested another person was to blame when asked. That was a finding open to him on the evidence.
22. There is overwhelming evidence on which the trial judge could find that the offences were made out. The finding that he expressed on page 10 of his verdict as to the credibility and reliability of the evidence of the complainant was open to him on the evidence and we find no error there.
23. This ground of appeal must fail.

Discussion

24. As this appeal against conviction is heard, this Court is informed that the Appellant has not been sentenced for these offences. No explanation has been put forward as to why that is the case. In normal circumstances an appeal against conviction is not heard until after sentence has been imposed. To proceed otherwise raises the possibility that the same matter may well appear a second time in the Court of Appeal.
25. Whilst it has not been said that the failure to sentence this appellant is because of a pending appeal, we wish to make it clear that the sentencing process should not be halted because an appeal against conviction has been filed. Indeed, to preserve rights it may be necessary to file the notice of appeal but no more. Just as is the case of delivery of verdict, a delay as this in sentencing the offender is not justified.

Disposition

26. The appeal against conviction is dismissed, the convictions confirmed, and the matter remitted to the High Court for the Appellant to be sentenced without further delay.

Goldsbrough P
Hansen JA
Wilson JA