In the context of a criminal trial or hearing, evidence of alibi may act as a particular category of evidence that can cast reasonable doubt on the prosecution’s case.
Understanding Alibi Evidence
In NSW, evidence in support of an alibi is defined under section 150(8) of the Criminal Procedure Act 1986 (NSW) (‘the CPA’) as evidence ‘tending to show that, by reason of the presence of the accused person at a particular place or in a particular area at a particular time, the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.’
An alibi serves as a potent means of defending a charge, asserting that the accused was in a specific location at the time the alleged offence occurred, rendering them incapable of committing the crime. Alibi evidence may manifest through witness testimony, documentary evidence, or technological means, such as surveillance footage or electronic records. The evidence of alibi can therefore be adduced through the accused themselves, if they elect to give evidence, or through any other witness.
While alibi evidence is commonly referred to as a ‘defence’, when an accused person puts forward an alibi, the burden of providing the accused’s guilt always rests with the prosecution. If the Crown fails to satisfy the jury beyond reasonable doubt that the alibi should be rejected, the accused must be acquitted. Even if an alibi put forward by an accused person is rejected, it is still incumbent on the prosecution to prove all elements of the offence alleged beyond reasonable doubt.
The Notice Requirement
Section 150 of the CPA outlines a crucial notice requirement, mandating that the defence provide the prosecution with reasonable notice of its intention to rely on alibi evidence. The prescribed period constituting reasonable notice is 56 days before the trial listed to commence. The notice requirement applies only to trials on indictment. No such notice requirement applies in summary (Local Court) proceedings where alibi evidence can be adduced without notice.
Section 150 states that a defendant intending to rely on an alibi defence must give written notice to the prosecution of the particular place or places where the defendant claims to have been when the offense is alleged to have occurred. This notice must also include particulars of any witnesses the defendant intends to call in support of the alibi.
The requirement section 150 of the CPA places on accused persons is significant. It represents a specific statutory exemption to an accused person’s fundamental right to silence. Ordinarily, the prosecution must present its whole case to completion while attempting to predict or foresee any defence the accused may rely upon, without notice. In the case of alibi evidence, the notice requirement is a procedural safeguard designed to prevent surprise and allow both parties to prepare and adequately investigate the veracity of any alibi advanced.
Where an accused person fails to give notice of an alibi within time, the Court may order an adjournment to allow the prosecution an opportunity to investigate the alibi evidence before closing its case. A Crown prosecutor may cross-examine an accused person on their failure to provide notice of an alibi. In certain circumstances, the prosecution may be granted leave to reopen its case for the purpose of rebutting alibi evidence, adduced without notice.
Role in Challenging the Prosecution’s Case
Depending on the facts of a case, alibi evidence may play a pivotal role in challenging the prosecution’s narrative. By establishing the accused’s presence elsewhere during the alleged crime, it directly contradicts the prosecution’s version of events.
While traditionally evidence of alibi would comprise of witness testimonies from family members of friends, technological advancements such as surveillance footage, GPS data, or electronic transactions, provide objective and timestamped proof of an individual’s location, bolstering the credibility or reliability of alibi evidence.
The effectiveness of alibi evidence often depends on the thoroughness of the investigation, the reliability of witnesses, and the quality of corroborating material.
Conclusion
Alibi evidence remains a powerful instrument for those seeking to establish their innocence. The notice requirement in Section 150 adds a procedural layer, ensuring fairness and allowing for thorough preparation and interrogation of alibi by both parties. As technology and legal practices evolve, so do the ways in which alibi evidence may be adduced.
Should you or someone you know be charged with an offence to which alibi evidence applies, it is essential you receive legal advice at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Northern NSW (02 5552 1902), Canberra (02 5104 9640) or Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
Damien Mahon, Senior Associate
