Alibi - Criminal Procedure Code II Notes PDF

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DEFENCE OF ALIBIWHAT IS AN ALIBI● The accused person may, in his defence, seek to put forward an alibi. ● Refer to s 402A of CPC ● There is no statutory definition of alibi ● ‘Alibi’ is a latin verb meaning elsewhere and another place ● If evidence for an accused that he was not present at a place a...

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DEFENCE OF ALIBI

WHAT IS AN ALIBI ●

The accused person may, in his defence, seek to put forward an alibi.

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Refer to s 402A of CPC

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There is no statutory definition of alibi

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‘Alibi’ is a latin verb meaning elsewhere and another place

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If evidence for an accused that he was not present at a place at the time an offence was committed is accepted by the jury, he is said to establish an alibi: R v Foll referred to in PP v Ho Jin Lock and Another Trial

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In short, alibi is a defence that places the defendant at the relevant time of the crime in a different place than the scene involved as to render it impossible for him to be the guilty party: PP v Ho Jin Lock and Another Trial

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It is insufficient just to mention a defence of alibi by saying he is elsewhere, but the accused must tender evidence in support of his alibi

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In PP v Lim Chen Len, the accused must give ‘evidence in support of an alibi’ that is evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place the offence was alleged to have been committed at the time of its alleged commission.

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Can the accused give evidence in support of his own alibi? Yes

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Evidence in support of an alibi can include evidence given by the accused person himself

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In PP v Lim Chen Len, the words ‘evidence in support thereof’ includes evidence of an alibi given the accused himself if he elects to give evidence on oath.

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The position where the accused himself is the only witness to the alibi was considered by the Supreme court in Vasan Singh v PP: He could be travelling at the time and the only evidence he has is a ticket or an endorsement on his passport. That would be evidence in support of his alibi.

ALIBI vs BARE DENIAL ●

Alibi is to say that the accused person was elsewhere and another place

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A defence of denial would be a simple statement of ‘I didn't do it. I was not there. I was

framed’

CHARACTERISTICS OF AN ALIBI:

1. A SPECIFIC PLACE ●

To establish his alibi, the accused must disclose where he was at the time of the alleged offence and what he was doing

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What amount to an evidence in support of alibi would include stating that the accused was at a specific place other than the crime scene

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The appellant said he was at home sleeping. the learned Judge held that it was not a defence of bare denial but of a defence of an alibi stating he was at some other place at the material time and he could have supported that with the evidence of his wife

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If it was a bare denial it ought to have been that he was never there at all

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Once the appellant states that he was at some other place at that material time then clearly it becomes alibi evidence and requires the fulfillment of section 402A in that notice ought to have been given to the prosecution

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Similarly the two accused and their relatives give evidence that at the relevant time they were at home

2. DIFFERENT LOCATION ●

Testimony by the accused that he was at the scene of crime but at a location different from the location (stipulated in the charge) where the commission of the crime of may constitute an alibi

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In PP v Ho Jin Lock, both the accused in the case were tried for an offence under the Firearms (Increased Penalties) Act 1971

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OKT 1’s defence was that he was not the bespectacled man with the gunman at the material time, that he was not at the scene at the material time of the alleged robbery cum shooting rather he was outside the lounge and that he was mistakenly identified

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That was not a denial but evidence tending to show by reason of OKT 1’s presence at a particular place or in a particular area (ie outside the lounge) at a particular time during the commission of the offence, that he was not or was unlikely to have been at the place where the offences were committed at the time of commission.

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That evidence was in support of an alibi and that evidence that he was elsewhere, without a notice of, alibi must be excluded

3. ANOTHER GEOGRAPHICAL TERRITORY ●

The court determines the nature of the defence from the adduced evidence.

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To be evidence of an alibi, the evidence must show or tend to show that by reason of the accused's presence at some particular place at a particular time the accused cannot or is unlikely to be at the place where the crime was committed.

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The place, other than the place of commission of the crime, may even be another geographical area.

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In PP v Jasli bin Amir Salleh, the defence raised was that when the office of rape was allegedly commited at Kem Syed Putra, Ipoh during the month of December 2002, he was in Sabah.

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It was held that, from the adduced evidence, the defence put forward was one of alibi.

4. NEVER AT SCENE OF OFFENCE ●

Evidence tending to show in particular detail that the accused was never present at the alleged scenes of crime may amount to evidence in support of an alibi.

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In Dorai Pandian a/l Munian & Anor v PP , OKT2 affirmed he was always in his hotel room and that when he was out of his hotel room he was never at the scene of the crime. OKT2 said he took what could only be described as a circuitous road from the porch to the guard house.

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That was not a denial but evidence tending to show that OKT2's presence at a particular place or in a particular area (that is, in his hotel room and or outside the immediate scene) at a particular time (during the commission of the offence) that he was not or was unlikely to have been at the place where the offence was committed at the time of commission.

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And without a notice of alibi, that evidence must be excluded.

5. PLACE OF COMMISSION OF OFFENCE ●

The place of commission of the crime, for the purpose of establishing whether the accused was at a particular place or in a particular area other than at the place of the commission of the crime, is determined by referring to the place named in the charge rather than from the adduced evidence: Tan Kim Hoo v PP

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In Tan Kim Hoo v PP, it was said:

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The charge in its actual words in Bahasa Malaysia said that the offence took place 'di

Hot Lips Lounge di No. 3-J Jalan Penang' which translated reads at 'at Hot Lips Lounge at No. 3-J, Jalan Penang.' ●

To constitute the defence of alibi the plea of the accused must be that he was not present at the scene at the time of occurrence or at the time when the incident in question occurred.

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Here, the defence of the second accused was that he was outside and not inside the lounge.

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He did not see that he was not 'at Hot Lips Lounge', the scene of the crime as framed in the charge.

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Therefore, his defence was not one of alibi.

DISTINGUISHING ALIBI FROM DENIAL ●

A defence of denial would be a simple statement of, I didn't do it. I was not there. I was elsewhere’. That would be evidence of a bare denial.

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See: Vasan Singh v PP: The issue of whether a defence amounts to one of bare denial or of an alibi is a question of fact.

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In Ng Thian Soong v PP, the accused was charged with the offence of committing murder on 3 October 1983 between 5.00 pm and 6.00 pm at an unnumbered hut near No. 2 Long Kayarong, Kuala Lumpur. The SUpreme Court held that the following defence of the accused, as it stood, merely amounted to a bare denial:

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I worked until 11.00 am. At that time, I found my zinc building too warm and I decided to come down to Pudu Raya. I then went to the City Lights later for the 3.00 pm show. After that, I went for my dinner in the town. I reached home at about 8.30 pm.

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In Adnan bin Mat Isa lwn PP, the accused in his defence to charge of rape, never denied that he was not present at the scene of the offence at the time and date as charged.

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Instead, his defence was that the complainant (SP5) was not present with him at the material time. The defence was held a mere denial.

CORROBORATION OF A DENIAL ●

The adducing of evidence in corroboration of a bare denial may amount to evidence in support of an alibi.

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The Supreme Court in Vasan Singh v PP stated that: what the applicant said (that he

was not involved in the fight and was in bed) is a bare denial of the charge. ●

Had the applicant gone further and proposed to call his wife to corroborate his evidence, then that would be the evidence in support of the defence of alibi

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Likewise the accused is entitled to say that he was travelling at the material time (which is a bare denial) but if he proceeded to produce his ticket or passport to support his alibi but not calling any other witness that would be evidence in support of an alibi.

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This decision in Vasan Singh v PP (above) of what would constitute an alibi finds support in the cases of PP v Abdul Malik b Maharaji & Anor, where the accused's defence corroborated by witnesses' evidence that he was at 'home'.

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And Devarajan Vaithilingam v PP, where the accused's defence that he was sleeping could have been supported by evidenced by his wife, were held to be defences of alibi

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However despite these decisions, in PP v Zainal Ariffin Abu Bakar, it was held that the defence of the accused, which in essence was that he did not go anywhere on the day of the offence on 14 December 2001, because he was at home from morning till night painting his house in preparation for Hari Raya Puasa, was a denial.

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The accused called two witnesses to testify as to his whereabouts on 14th December 2001, from morning till evening. They were his parents, that is, his father (DW2) and his mother (DW3).

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They testified that 14 December 2001 was during the fasting month and that the accused broke fast at home and that DW3 had cooked the food to break the fast.

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They testified that the accused never left the house that day, and even if he did, it was only to the surau nearby for terawih prayers and that he had returned home, thereafter, and never left the house.

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They testified that the accused was at home on that day, painting the house, while DW2 assisted him. The trial judge stated:

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Upon a careful consideration of the testimony of the accused, I am of the view the defence of the accused is really one of denial that he committed offence, rather than an alibi, per se.

NOTICE OF ALIBI ●

Section 402A does not stipulate a time frame within which notice has to be given.

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Notice seeking to adduce evidence in support of an alibi, is valid even if given during the course of the trial provided there is sufficient time for the PP to investigate the alibi.

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As a matter of practice, the notice is signed.

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The object of the notice is merely to enable the prosecution to check upon the reason of the alibi and it is sufficient if such notice was signed by someone on behalf of accused: Krishnan & Anor v PP

NO JUDICIAL DISCRETION TO WAIVE NOTICE ●

What if notice was not served?

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Is it fatal to the defence case?

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No Judicial Discretion to Waive Notice: s 402A will render evidence in support of an alibi inadmissible - Rangapula & Anor v PP

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Note: if alibi given but with no notice served, court cannot give consideration to alibi. However, the court will still need to scrutinize evidence whether defence in totality constitutes a denial.

WHAT MUST BE THERE IN THE NOTICE 1. PARTICULARS OF PLACE ●

The notice required to be served under section 402A shall include particulars of the place where the accused claims to have been at the time of commission of the offence with which he is charged (s 402A)

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Service of the notice entitles the accused person to raise a defence of alibi but not an alibi by the calling of witnesses unless he first furnishes their names and addresses in the notice.

2. NAMES AND ADDRESSES OF WITNESSES ●

Evidence of an alibi may be given by the accused himself or he may rely on witnesses

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The purpose of the notice is to enable the police to verify the veracity of the alibi and where witnesses are called, by interviewing the witnesses named therein.

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It is for this reason that where the accused intends to call witnesses, the notice must contain particulars of the intended witnesses, their names and addresses.

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This requirement for notice is mandatory and whether the police have taken statements from the alibi witnesses in the course of their investigations is immaterial.

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Without notice, evidence of a defence of alibi is inadmissible: PP v Lim Chen Len.

ISSUE ON CONSIDERATION OF DEFENCE - (How is the court's attitude in assessing an alibi as a defence) ●

The defence of alibi is 'obviously one to be treated seriously' and not to be brushed aside as an afterthought or that the accused had concocted the alibi.

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R v Rabbit

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R v Bruce & Brown

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In Chee Chi Tiam v PP, the court rejected the accused's contention that he could not possibly be in Kulai at about 5 am that material morning for the following reasons:

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The distance from Johor Bahru to Kulai Besar Estate is only 21 miles which could be undertaken within 30 minutes each day.

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There was therefore ample time for the accused and his accomplices to execute a plan after the assault. There was ample time for the accused to be back in Johor Bahru and drive his timber lorry to Singapore.

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The assault by the accused and his accomplice at the time and place specified in the charge was therefore not an impossibility. It could be executed quite easily given the proper motive and determination.

BURDEN OF PROOF ●

The burden of proving an alibi lies on the accused setting up the defence but even then, the burden of proof as to the guilt of the accused always remains on the prosecution...irrespective as to whether or not the accused had made a plausible defence: Dato Mokhtar bin Hashim v PP

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As far as the accused is concerned, all that he needs to do as regards the defence of alibi is to raise a reasonable doubt that he was the person at the scene of the crime.

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The onus of proof on the accused is to only cast a doubt upon the prosecution story in order to earn an acquittal.

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See: Yau Heng Fang v PP...