What is an alibi?
An alibi can be used as part of a defence strategy to raise that you were not present at the scene of a crime when it was committed. Alibi evidence can include a statement from a witness who you were with at the time of the offence, video footage or other documentation that proves, or tends to prove, that you were in a different location at the relevant time. If alibi evidence is accepted, it can refute the prosecution’s claim that you are guilty of the offence. If there is otherwise at least a reasonable possibility that the alibi evidence is true that would be sufficient to raise a reasonable doubt about the guilt of a crime and would lead to acquittal.
Burden of proof
At all times, the burden of proving a person’s guilt rests with the prosecution. That is, the prosecution must prove beyond reasonable doubt that an accused person committed the offence before the court before that person can be found guilty.
If you raise an alibi during the proceedings, the prosecution must disprove the alibi. If the prosecution fails to remove or eliminate the reasonable possibility that you were somewhere else when the crime was committed, you will be acquitted.
NSW District Court procedure
If your matter is being prosecuted in the District Court of NSW, you must give notify the prosecution at least 56 days before the start of the trial that you intend to adduce alibi evidence.
The notice must include the name and address of the person who can give evidence that you were somewhere else when the offence was committed. If you do not know these details, you must provide any other information in your possession that might be of assistance to the prosecution in finding the person.
If you fail to notify the prosecution of your intended alibi within the 56-day timeframe, you can only rely on this evidence with leave of the court.
The reason you must give notice is so that the prosecution can investigate your alibi in advance of trial.
In some circumstances, the prosecution are given permission to call evidence in reply to alibi evidence, after the close of the defence case, which seeks to rebut any alibi evidence raised.
In the ACT Supreme Court, an Alibi Notice must be served on the prosecution within 14 days of the matter being committed from the ACT Magistrates Court. If served later than this period you will need leave of the court to rely on this evidence at trial.
Local Court procedure
In the Local Court you are not required to notify the prosecution that you intend to call alibi evidence, however it is best practice to do so. If you do not give notice, your matter may be adjourned to allow the prosecution time to prepare, depending on all the circumstances of the matter. Similarly, no alibi notice is required in ACT Magistrates Court matters that are dealt with summarily.
The police may seek to interview and take statements from any proposed witnesses named in the alibi notice. Witnesses are not obligated to provide statements to police and no adverse inference can be drawn against an alibi witness who refuses to do so.
The importance of Alibi evidence
Even if a court can be satisfied beyond reasonable doubt that an alleged crime occurred, if notice of an alibi is properly served and there remains doubt about whether the crime occurred on the dates specified in an indictment, a verdict of not guilty should ordinarily follow (see for example R v Masina (No 3)  ACTSC 154). Compliance with alibi notice rules can also help guard against the prosecution from amending the date range of an indictment if the current date(s) cannot be proved beyond reasonable doubt.
If raised, alibi evidence can be critical to the defence of serious charges. It is extremely important that great care is taken in how an alibi notice is drawn so that sufficient detail is given to meet the legal requirements without going into too much unnecessary detail that may not materialise in the evidence at trial.
Lindsay Stankovic, Lawyer