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Regina v Irobina [2012] SBCA 9; CA-CRAC 29 of 2011 (23 March 2012)

RULING ON APPEAL

COURT: Madam Interpreter, I am going to deliver the Judgment of the Court now, I shall try to remember to speak slowly. If I go too fast, just raise your right hand accusingly towards me and I will stop.

INTERPRETER: Yes, my Lord.

COURT: A transcript is of course being made, and the judgment in its corrected form will be made available as soon as possible, so it can be read within a very short time.

This matter is listed as an application on behalf of Peter Irobina for permission to appeal out of time a conviction before Chief Justice Ward, as he then was, on the 15th of December 1986, at a conviction some 26 years ago of murder of Benjamin Dika at Mt Austin in Guadalcanal late on Sunday the 15th of January 1978, some 34 years ago.

The Chief Justice found on the evidence before him, mainly that of a recognition witness whose testimony he accepted, but also on logically powerful circumstantial evidence, that Mr Irobina and two of his co-accused joined in the fatal attack on Mr Dika.
**
He sentenced all three of them to life imprisonment. At trial, Mr Irobina, who was then represented by Mr Kenneth Brown, relied on the defence of alibi. He denied that he had been present at or party to the attack on Mr Dika. In evidence, he said that he was not in Guadalcanal on that Sunday night but in his home village on the island of Malaita.

He mentioned in his evidence at trial the names of two people with him in his home village at the material time, a Father Gerea and John Ata. But he called neither of them or anyone else from his village in support of his defence of alibi. Only at the close of his evidence in the trial did Mr Brown seek and obtain an adjournment - of two days - to call Mr Ata. But on return to Court at the end of the adjournment, Mr Brown merely indicated that he had no further evidence to call.

There is no indication in the papers before the Court that Mr Irobina instructed Mr Brown to call any potential alibi witness other than Mr Ata. Nor is there any evidence of the contents of his instructions to Mr Brown before trial as to the nature and detail of his defence.

This is Mr Irobina's second move to challenge his conviction, which he does by application for leave to appeal long out of time. It came before this Court this session on the 12th of March 2012, in a most unsatisfactory state - both for him and the Court. A written outline of submissions of his behalf had been prepared and lodged by Mr Edward Cade of the Public Solicitors Office only a few days before on the 6th of March. That was followed the next day by notification from that Office to the Court that it intended to instruct two counsel to conduct Mr Irobina's application, neither of whom held practising certificates in this jurisdiction and would seek the leave of the Court to do so. There followed two days later, a letter to the Court of Friday the 9th of March from Mr Douglas Hou, the Public Solicitor, indicating that his Office had withdrawn legal aid from Mr Irobina for the conduct of the matter and also Mr Cade's recently sent outline of submissions. Mr Hou added in the letter that the "appeal" was not withdrawn and that counsel from his Office would attend on the 12th of March to seek an adjournment to enable Mr Irobina to instruct private counsel if he wished. On the 12th counsel for the Public Solicitor did just that, leaving Mr Irobina unrepresented and clearly unable to make the application himself and with little prospect of being able to fund representation in the foreseeable future.

In the circumstances, the Court felt bound to give Mr Irobina some time to seek help, suggesting as a possibility a "McKenzie Friend". But the Court considered it to be in his and the public interest to limit the period of the adjournment to enable his application to be determined this session.

In so deciding, the Court had in mind three factors. First his abandonment of an earlier much delayed appeal against conviction. Second his securing of a pardon after serving some 12 years of his life sentence and third; further exceptional and largely unexplained long delay before attempting to re-open his challenge to the conviction.

Mr Irobina has re-appeared before the Court this morning, 21st of March. He remains unrepresented. But with the able assistance of an Interpreter, he has made oral submissions to the Court. In substance, he has repeated the main thrust of his application brought before the Court some ten days ago. He has referred to his affidavit evidence put in at that time, and also to three potential alibi witnesses whose affidavits were also before the Court.

In short, he maintains that if he had had an opportunity to call each of those three alibi witnesses, the Court might be persuaded to admit the evidence and to give effect to it by quashing his conviction.

He complains of negligence on the part of Mr Brown for not calling them to give evidence before the trial judge in 1986. We shall return to the detail of that potential evidence and his complaints about Mr Brown a little later.

First it is necessary to summarise the long history of this matter. Mr Irobina's first challenge to his 1986 conviction of murder was by an appeal lodged early in 1987. There is no evidence before the Court of his then grounds of appeal, and seemingly no extant Court of Appeal file relevant to it. Mr Irobina does not appear to have instructed Mr Brown to advise and appear for him on the appeal. He instructed David Campbell, for reasons not explained in the papers before the Court.

There was a delay of some 12 or more years without the appeal being brought before the Court. During that period, Mr Irobina continued to serve his life sentence and Mr Brown and Mr Campbell died. It looks as if various lawyers from the Public Solicitors Office also became involved on his behalf during that period, but there is no sign in the papers before the Court of the nature of his instructions to them.

By way of a joint letter to the Court of 5th of April 1999, Mr Irobina and his two convicted accomplices withdrew their appeals. They gave as their reasons, the long 12 years delay and Mr Campbell's death. It is notable that he made no complaints in that letter, or anywhere else so far as the Court is aware, about Mr Brown's conduct of his case at trial.

It is common ground that sometime later in the same year 1999, he and the other two were released from prison. That was by way of pardon in the exercise by the Crown of its Prerogative of Mercy. There is a suggestion that Mr Irobina's withdrawal of his appeal was a tactical device designed to secure that pardon, or put another way, submission by him to a stipulated condition of its grant. In evidence filed in the papers before the Court, the Crown hotly denies any such deal and maintains that the grant of pardon was an act of mercy and made on humanitarian grounds. The precise circumstances of Mr Irobina at the time to justify such an act of mercy is not explained. Maybe it was felt that after 12 years in prison, he had done enough to expiate his crime.

Following Mr Irobina's release from prison in 1999, a further 12 years passed. On the 30th of September 2011, by this application, he sought leave to appeal out of time against the 1986 conviction. As the Court has indicated, he relied in support of what he called "fresh" alibi evidence. This is now some 34 years after the murder of Mr Dika, 25 years after his conviction of that murder and 12 years after his withdrawal of his appeal against that conviction and release from prison by way of pardon.

In his application, Mr Irobina seeks to rely on three grounds of what he calls miscarriage of justice. First Mr Brown's failure to call at his trial alibi evidence from three persons. These included Father Gerea, from his home village in Malaita, but not Mr Ata whom Mr Brown had sought, on his instructions, to call at trial, but who did not give evidence.

** The second ground relied upon is alleged incompetence of Mr Brown in failing to call those witnesses and in other respects at trial. The third ground is the alleged unreasonableness of the Chief Justice's decision to convict because, Mr Irobina maintains, the unreliability of evidence given by certain prosecution witnesses.

It is questionable whether, having withdrawn his earlier appeal; Mr. Irobina can, in any event, seek to re-open the matter by way of further appeal to this Court. But there are a number of other potential obstacles to him succeeding in the application.

First, there is the length of time that has elapsed since the murder and since his conviction; for whatever reason, his dilatory prosecution over 25 years of his 1987 appeal; and his eventual withdrawal of that appeal followed shortly by his release on pardon. He seeks to raise at this late stage - and for the first time - possibilities of the potential alibi evidence we have mentioned, going to what happened on an otherwise unmemorable Malaita village day 34 years ago. All of which evidence if available must have been known and available to him at the time of the trial.

It is stretching beyond reality the extent to which the Court should respond to calls on its discretion to permit such a challenge so long after the event. A further obstacle to the course of justice in allowing him to re-open the matter is that his former counsel, Mr Brown and Mr Campbell, whom he accuses respectively of negligence and delay, have died in the intervening period. They therefore have no opportunity to comment on or answer his recently fashioned criticisms of their conduct. On those facts alone, the Court could properly exercise its discretion against the grant of leave.

Secondly, there is the question whether the sought appeal would have any reasonable prospect of success if the court were to grant leave. To the extent that Mr Irobina seeks to rely on potential alibi evidence not before the Chief Justice at trial, the Court would be entitled to have regard to the following three matters; first, his knowledge at the time of the availability of that evidence if it truly existed then; secondly, whether considering the content of it as put before the Court, it would have been likely to have any material influence on the outcome; and thirdly, its cogency and credibility at this late stage.

Of the three potential witnesses whom Mr Irobina now seeks to say could or would have altered the outcome if called in his defence: the first is Nelson Kutai, a close neighbour and friend of his. Mr. Kutai, in his affidavit sworn in 2011, spoke of seeing Mr Irobina in their Malaita home village in, as he put it, 'maybe' before or after Christmas 1976 - not two years later on the 15th of January 1978 when the murder occurred. It should also be noted that, on Mr. Kutai's own account in his affidavit, he was in Honiara at the time of Mr Irobina's trial, but was not asked to give evidence for him.

The second potential alibi witness is Father John Gerea. He is a close relative of Mr Irobina, and he swore, in his affidavit in 2011, that he could not remember the exact date when he was in the Malaita home village with Mr Irobina, but he said it was during the time they heard on the radio about the murder - whatever day that was. He too said that he was not asked to give evidence for Mr Irobina.

Only Benjamin Toloa, a nephew of Mr Irobina, spoke about being present with him in the Malaita village on the 15th of January 1978 when he says they heard news of the murder on the radio. He also said that he had not been asked to give evidence at the trial, and had not volunteered to do so.

In short, an unimpressive trio of potential alibi witnesses, in the main shaky on dates, and all closely related to or otherwise connected with Mr Irobina. None was approached to give evidence or volunteered to do so at his trial, and none was identified by Mr Irobina until very recently as candidates for the role of alibi witness.

For the sake of completeness, we should add, having looked to full record, there is nothing in the Chief Justice's conduct of the trial or in his judgment, independently of the question of absence alibi defence witnesses, on which Mr Irobina can reasonably rely to argue at this late stage that his trial was unfair. He had his opportunity to pursue any such criticism in his original appeal, eventually withdrawing it, as he put it in his letter to the Registrar on the 5th of April 1999, "with good heart".

Thirdly, we should mention that there is no indication, whether before or since lodging this application that Mr Irobina sought to rely on the alleged incompetence of Mr Brown at his trial.

In the result, in the Court's view, this matter is too old to re-open now, and even if that were not so, there is no basis, whether on the strength of a possible fresh evidence or otherwise, to disturb the 1986 conviction. The application is therefore refused.

Mr Irobina, thank you for returning today to complete your case on your own behalf and thank you, Madam Interpreter, for your able assistance in enabling him to do so. Counsel for the Crown, we thank you as well for all your assistance throughout the case, both orally and in writing.

Sir Robin Auld P
President

Justice Glen Williams, JA
Member

Justice James Apaniai, JA
Member