Home | Databases | WorldLII | Search | Feedback Court of Appeal of Solomon Islands

HKL v R [2025] SBCA 9; SICOA-CRAC 39 of 2023 (11 April 2025)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The Appellant was charged on an Information with eight counts of having sexual intercourse with one Patrina Reresina (“the victim” hereon) whom he knew was his biological daughter, contrary to s. 163 (1) and (2) (b) of the Penal Code [Cap. 26].
2. In the first count the Crown alleged the offending occurred on an unknown date between 1^st and 30^th August 2014 at the Appellant’s own residence at GPPOL 2, Guadalcanal Province. In the second count, the Crown alleged the offending occurred on an unknown date between 1^st April and 30^th April 2015, at Lunga, Guadalcanal Province. In the third count the Crown alleged the offending occurred on an unknown date between 1^st and 30^th June 2016 at Lunga, Guadalcanal Province. In the fourth count the Crown alleged the offending occurred on 29^th August 2016 at Vura 2, East Honiara. In the fifth count, the Crown alleged the offending occurred on an unknown date between 1^st and 31^st January 2018 at the Appellant’s own residence at Kaotave, GPPPOL 2, Guadalcanal Province. In the sixth count the Crown alleged the offending occurred on an unknown date between 1^st and 31^st January 2019, at the Appellant’s own residence at Kolona, GPPOL 2, East Honiara, Guadalcanal Province. In the seventh count, the Crown alleged the offending occurred on an unknown date between 1^st and 30^th April 2020, at Lunga, East Honiara, Guadalcanal Province. In the eighth count, the Crown alleged the offending occurred on an unknown date between 1^st and 31^st January 2021 at Green Valley, East Honiara, Guadalcanal Province.
3. The Appellant was tried after pleading not guilty to all the charges. He was found guilty of all eight counts on 10 August 2023.
4. On 20 October 2023, the Appellant filed the Notice of Appeal after being granted leave to appeal on 16 October 2023. There are six grounds of appeal which are as follows: -

Grounds of appeal: -

(i) The trial judge erred in fact and in law in accepting and relying on evidence adduced by a witness who was declared hostile by the Court as basis to convict the Appellant;
(ii) The trial judge erred in drawing inference that the content of the letter from the Appellant to PR marked as exhibit (PE7) supported the prosecution case to convict the Appellant;
(iii) The trial judge erred in law in convicting the Appellant on counts 1 and 2 when there was no sanction of the DPP to commence prosecution on those charges;
(iv) The trial judge erred in law or in fact in convicting the appellant on all the charges when there was insufficient evidence to support such convictions;
(v) The trial judge erred in law by placing weight to the irrelevant considerations to convict the Appellant;
(vi) The convictions are unsafe and unreasonable having regard to the evidence for the prosecution.

5. Notably, the Appellant abandoned ground (v) of the appeal at the hearing of the appeal. The Court is therefore left with grounds (i), (ii), (iii), (iv) and (vi) to consider.

Background facts

6. The Crown’s evidence consisted of written complaints to the Police by the victim of how, when and where the Appellant had sexual intercourse with her, the written statements by the victim’s mother, aunty and uncle about the abuse of the victim by the Appellant and how the victim was affected. About 52 photographs of places and or locations where the victim told the police the Appellant had sexual intercourse with her. In her statements to the police, the victim gave detailed descriptions of where and how the Appellant sexually abused her. Other evidence consisted of reports by the doctors that examined the victim and the letters from the Appellant to the victim in which the Appellant asked her to return to the family home after the victim ran away and went and stayed with her uncle who is a Crown witness.
7. At the trial, the victim changed her story. She told the court that what she told the police in her statements were not true, she said she made up the stories. She said she was not thinking properly when she gave the statements to the police. She said the Appellant did not have sexual intercourse with her, it was her boyfriend she had sexual intercourse with on one occasion. She said the boyfriend left her after the story about her father’s sexual abuse of her became public. During trial, the victim did not deny that she made the statements to the police, which she read and agreed were true.
8. At the trial, the victim agreed with the Crown that some time before the trial, she wrote to the Director of Public Prosecution (“the DPP” hereon) and told them that she wanted to withdraw the case against the Appellant. A similar attempt was made to the police. The reason was, the Appellant was the only breadwinner, thus, implying that if he went to goal, there would not be anyone to support the family.
9. The victim ended up staying at the Seif Ples and the Christian Care Center, where she received counselling. She told the primary court that after receiving counselling from the Christian Care Center, she wrote to the Appellant and asked him to forgive her. At the trial the victim told the court that she left home and was staying with her uncle because the Appellant was harsh on her than her siblings.
10. There was other material evidence for the Crown which the primary judge had to consider besides the evidence of the victim.
11. The police officers who interviewed the victim said the victim was very emotional when giving her statements to them and was crying when describing how the Appellant was sexually abusing her. Her statements were read back to her, she agreed that the statements were correct and signed the declarations that the statements were true and correct. At the trial, she confirmed her statements.
12. The doctor who examined the victim, Dr Lawrence Diau, said in his written medical report dated 9 April 2021, which was prepared contemporaneously, the victim told him that the Appellant started abusing her sexually since she was about 12 years old when she was doing grade 6. The Appellant continued to abuse her sexually and the last time was in February 2021. The doctor’s report states the victim was very emotional and was “crying all throughout the interview”. The doctor’s report showed that the victim had a pregnancy test but the result was negative.
13. The medical report shows the victim also complained of soreness in her eyes and had watery eyes as a result of being assaulted by the Appellant when he was not happy with her, especially when he saw her with boys. She was treated for her eyes and later consulted an eye doctor, Dr Pius Singe’a.
14. The victim’s aunty, Philotea Asina gave a statement to the police in which she said the Appellant used to take the victim to her house, they would stay a bit then go back. The victim told the police that the Appellant used to take her to Philotea’s house and would have sexual intercourse with her in the house when they were alone in the house.
15. The victim’s mother, Linda Roa’ahia also gave a statement to the police. She told the police, that she wanted the victim to sleep in the room where she (mother) was sleeping, in their house but the Appellant would always want the victim to sleep in the room where he was sleeping. She told the police that she and the victim went to their garden one day and when they were in the garden, she told the victim that she noticed some behaviours of the Appellant towards her (victim) which were concerning and asked the victim if the Appellant had done anything bad to her. The victim admitted that the Appellant was sexually abusing her, and the victim cried. She said when they returned home from the garden she confronted the Appellant. She told the police the Appellant used to hit the victim, especially when he was jealous of boys.
16. The victim’s uncle Douglas Waihata also gave a statement to the police. He reported the matter to the police after the victim ran away and went and stayed with his family and told him about the sexual abuse of her by the Appellant. He said the victim’s mother who is his first cousin sister also went to him and asked if the victim could stay with him and his family because the victim was being mistreated by the Appellant. He said it was after the mother's visit that the victim went and stayed with his family. He said he asked the victim about the mistreatment of her by the Appellant and the victim told him that the Appellant was sexually abusing her. He then went and confronted the Appellant and told him to pay compensation for what he was doing to the victim and later reported the matter to the police.
17. All these statements were received in evidence by the primary court and were all before the primary judge to consider.

Submissions
By the Appellant

18. Mr. Allan Tinoni of counsel for the Appellant, submitted among others, that the primary judge erred in law in convicting the Appellant of eight counts of sexual intercourse with the victim. It was submitted that the victim was declared a hostile witness during trial, therefore her original stories to the police upon which the eight charges against the Appellant were laid by the DPP were worthless and could not be relied upon by the primary judge to convict the Appellant.
19. It was submitted that the primary judge erred in drawing adverse inferences against the Appellant from the letter the Appellant wrote to the victim asking her to return to the family home. It was submitted that the primary judge erred in inferring from that letter that the Appellant was guilty of the offences charged.
20. The Court was told that given the complete denial by the victim that the Appellant had sexual intercourse with her on eight occasions, the victim’s prior statements to the police had no evidentiary value.
21. Mr. Tinoni also submitted that the Appellant’s conviction was a nullity because there was no sanction by the DPP to commence prosecution against the Appellant on the eight counts. It was submitted that the prosecution of the Appellant was in breach of s.166 of the Penal Code, which provides that no prosecution can be commenced under ss. 163 and 164 of the Penal Code, without sanction by the DPP.
22. It was submitted that there was insufficient evidence against the Appellant, therefore the Appellant conviction was unsafe, especially when the victim told the Court that she made up the stories about the Appellant. Mr. Tinoni relied on Ofea v. R [2019] SBCA 9; SICOA-CRAC 22 of 2019 (18 October 2019) and submitted that the evidence against the Appellant by the Crown cannot connect and support each other. There are gaps. A further reliance was placed on M v. Regina [1994] HCA 63; [1994] 181 CLR 487, in submitting that the evidence against the Appellant was weak and insufficient to support the conviction.

By the Respondent

23. Mr. Andrew Kelesi of counsel for the Respondent, submitted that the evidence given by the victim at the trial had to be viewed and considered subject to other evidence that was before the primary judge. The primary judge had discretion to consider what evidence was credible and it was question of what weight should be given. It was submitted that in that regard, the primary judge was entitled to consider the statements the police obtained from the Crown witnesses, viz; the victim, the mother, the aunty, the uncle and the doctors.
24. Regarding the judge relying on parts of the Appellant’s letter to the victim, Mr. Kelesi submitted that the parts of the letter clearly implicated the Appellant regarding the offending. The part of the Appellant’s letter the primary judge relied on is in pidgin, it is as follows:-
    • “Last time your mum attacked me of all sort of things you have said. For example, you said, Dad usim me osem wife blo hem nah. For wad nah all those statement. Please protect your name.
    • ... To end Patty, I want to assure you that the old has gone and the new has come. I will also tried to live according to what it right. ... I have learned a great lesson through this great experience.”
25. It was submitted that the trial judge was entitled to interpret the letter and draw reasonable inferences and conclusions from it.
26. Regarding the claim by the Appellant on his ground of appeal that the decision of the primary judge was a nullity because the prosecution of him was not sanctioned by the DPP, Mr Kelesi submitted that the argument had no legal basis because the Information under which the Appellant was charged was authorized by the DPP. He relied on Fasi v. Regina [2012] SBCA 10. In that case, the court held that the endorsement by the DPP on a memorandum was sufficient evidence of the sanction by the DPP for the prosecution of the case and no additional written sanction was required.
27. It was submitted that there was overwhelming evidence against the Appellant when all the relevant evidence was considered and given sufficient weight. Thus, the conviction against the Appellant was safe and the appeal should be dismissed

Consideration

28. We deal firstly with ground (iii) of the appeal because it can be easily disposed of. We accept Crown’s argument that the fact that the DPP had authorized the Information in which the Appellant was charged with eight counts of offending is sufficient evidence of the sanction by the DPP for the prosecution of the Appellant. The evidence cannot be any clearer. In Fasi v. Regina [2012] SBCA 10, this Court relevantly said this: -
    • “The sanctioning need not be in writing but it should be specific to the offence in question. It is sufficient if the Director applies his mind to the specific charge and approves of the prosecution proceeding”.
29. Consistent with the observation by this Court in Fasi v. Regina (supra), we note that the Information charging the Appellant with eight counts of sexual penetration of the victim by the Appellant had the DPP’s authorization. This is sufficient evidence constituting sanctioning of the prosecution of the Appellant by the Crown.
30. Also, as the Court said during hearing, the issue of sanction by the DPP for the prosecution of the Appellant should have been raised in the lower court. It is quite improper for an issue to be raised before the appellate court if the issue had not been raised before the primary court.
31. We therefore dismiss ground (iii) of the appeal.
32. Regarding ground (i) of the Notice of Appeal, we reject the argument by the Appellant that the primary judge should not have considered the victim’s statements to the police, because she told the primary court that they were not true because she made them up. This resulted in the victim being declared a hostile witness. It was submitted for the Appellant that once the victim was declared hostile, her statements to the police had no evidentiary value and became useless. That is not correct in law. The primary judge still had discretion to compare and analyze the victim’s evidence together with other evidence. In other words, the primary judge had to decide whether the victim’s statements to the police were true in light of the other evidence. This issue really had to be decided in light of the overall facts and circumstances of the case, which included the question of whether the victim’s change of heart at the trial that the Appellant never abused her was motivated by something other than the desire to tell the truth. This issue therefore had to be considered together with other evidence before the court. It would be an error of law to simply disregard all her prior statements to the police simply on the basis that she told the court that she made them up and were false. The most obvious factor to consider is the attempts by the victim and the mother to withdraw the charges against the Appellant, before the trial. The primary court had to decide in the end what weight should be given to the victim’s prior statements to the police.
33. We accept that the correct approach a court should adopt regarding a prior statement of a hostile witness was stated in the following cases which the primary judge referred to in his judgment, viz; R v, Nugyen [1989] 2 Qd R 72; R v. Parkinson [1990] 1 Qd. R 383; (1989) 44 A Crim R 177 and State v. Manasa Talala and Others, Criminal Case No. HAC 30 of 2025.
34. The case of R v. Nugen (supra) is referred to in Carter’s Criminal Law of Queensland, 19^th Ed. At pp 1886 -1887. The learned author says this: -
    • “In R v. Nugen [1989] 2 Qd. R 72 the only evidence against the accused were out of court statements made by two seventeen old witnesses which statements were retracted by oral evidence in trial. In such a case the jury should have been instructed that it should only act on such statements if satisfied beyond reasonable doubt that they were made and that they were true”. (Our underlining).
35. In Rv. Parkinson (supra), where the only evidence to support a conviction was a s.17 statement (where the witness was declared adverse), it was held among others that: -
    • ’’ (i) a trial judge should give very full and clear directions as to the weight of such a statement”. (Our underlining).
36. Then in State v. Manasa Talala and Others (supra), which was a decision of the Fiji High Court, the court said: -
    • “The evidence of a hostile witness would not be totally rejected, but it should be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the Prosecution may be accepted. You decide what weight you give to the Boila’s evidence, what parts of his evidence you accept and what parts you reject. Please remember that a statement made to police is noi evidence unless it is adopted and accepted by the witness under oath as being true”. (Our underlining).
37. In Henry Jons Amuli v. Gore & Electoral Commission [2023] PGSC 145; SC 2496 (24 November 2024), the Papua New Guinea Supreme Court considered the primary judge’s decision to accept an affidavit of a hostile witness. The Court said: -
    • “The trial judge was not bound to disregard the prior affidavit evidence of the hostile witness and was in the best position to determine whether he was telling the truth in his affidavit or in his oral testimony, having regard to the judge’s assessment of his demeanour and that of all witnesses and the fact that the affidavit was admitted into evidence without objection and that the witness became hostile without notice to the first respondent. The judge made a rational and logical decision to give weight to the affidavit evidence of the hostile witness”. (Our underlining).
38. In his findings, the primary judge in this case said among others, this: -
    • “Having considered the entire evidence adduced at trial, and in light of the authorities referred to me by both Counsels, as well as the references I outlined above, I agree with the position highlighted by the prosecutions (sic.). It is open to the trial judge to consider the statement of the victim if the circumstances so warrants. I note the requirements under section 164 of the Evidence Act 2009 relative to the weight that court gives to such a document.
    • As a trial judge sitting alone, I am mindful of my role that I should only act on the statements if I am satisfied beyond reasonable doubt that they were made and that they were true.
    • I find that the statements made by the victim to the police (EXHIBITS PE8, PE9, PE10) were confirmed by the victim in her testimony in court as her statements. The victim identified her signature on each of the statements when asked by the prosecutions (sic.) and agreeing to give her story to the police.
    • I find also that the victim read the warning and the declaration on the statement and put her signature or sign each statement.
    • I accept that the victim gave details and pointed out the spots at the various scene of the incidents based on her personal knowledge and what actually happened between her and the accused.
    • The statements given by the victim to police (PE8, PE9 & PE19) contained truthful account of what had occurred. The victim in her testimony in court also agreed with the prosecutions when all the details about the incidents and the specific locations were shown and asked by prosecutions.
    • There is much specific and elaborated detail to be ignored as made-up or untruthful. That also supports the case by the prosecutions. I do not accept that these were made up by the victim. The victim changes her story just because she was sorry for her father and siblings, as she told court in response to the prosecutor’s questions”.
39. We do not find any error in these findings by the learned primary judge. We find the learned judge correctly summarized the law relating to the power of the primary court to consider prior statement of a hostile witness and give it such weight it may in the exercise of its discretion consider appropriate.
40. We find that there was evidence before the primary judge to find the Appellant guilty of all eight counts. In fact, we find the evidence was overwhelming.
41. Thus, there was no miscarriage of justice.
42. Consequently, we dismiss the appeal in its entirety.
43. Orders accordingly.

Muria P
Gavara-Nanu JA
Lawry JA