Alibi

Question 1

Definition

Answer 1

Chambers Dictionary43 defines an alibi “as the plea in a criminal charge of
having been elsewhere at the material time: the fact of being elsewhere.”

Question 2

Legislation

Answer 2

Relevant legislation is s20 - 22 of the Criminal Disclosure Act 2008.
22 Notice of alibi

(1) If a defendant intends to adduce evidence in support of an alibi, the defendant must give written notice to the prosecutor of the particulars of the alibi.

(2) The notice under subsection (1) must be given within 10 working days after the
defendant is given notice under section 20

(3) Without limiting subsection (1),—

(a) the notice under subsection (1) must include the name and address of the
witness or, if the name and address is not known to the defendant when the
notice is given, any matter known by the defendant that might be of material
assistance in finding that witness; or
(b) if the name or the address is not included in the notice, the defendant must
have, before giving the notice, taken all reasonable steps, and after giving the
notice continue to take all reasonable steps, to ensure that the name and
address is ascertained; or
(c) if the name or the address is not included in the notice, but the defendant
subsequently discovers the name or address or becomes aware of any other
matter that might be of material assistance in finding the witness, the
defendant must as soon as practicable give written notice of the name, address,
or other information, as the case may require; or
(d) if the defendant is notified by the prosecutor that the witness has not been
traced by the name or at the address given, the defendant must as soon as
practicable give written notice of any other matter known to the defendant that
might be of material assistance in finding that witness or, on subsequently
becoming aware of any such matter, give written notice of it as soon as
practicable.

Question 3

Written notice of alibi now required

Answer 3

Until 1973 a defendant was free to leave producing an alibi until they were
actually giving evidence. This meant that it was difficult, if not impossible,
for the prosecution to rebut the evidence.

Under s22 of the Criminal Disclosure Act 2008, the defendant must provide
the prosecutor with the particulars of any alibi witness they intend to use in
court. Written notice of an alibi is to be given by the defendant within 10
working days after the defendant is given notice under section 20.

Section 20 requires the Court or Registrar to give the defendant written
notice of the requirements of section 22 and 23

• if the defendant pleads not guilty, or
• if the defendant is a child or young person, when they make their first
  appearance in the Youth Court.

Question 4

O/C Case to make enquiries

Answer 4

The particulars must include the witness’s name and address or any
information that might provide material assistance in finding that witness.

Whenever a defendant puts forward an alibi under section 22(1), the O/C
case must ensure a prosecution report (QHA) and an active charges report
are prepared on the witness.

The O/C case should also make inquiries to confirm or rebut evidence in
support of the alibi. This information must be provided to the prosecutor as
soon as reasonably practicable.

Question 5

Procedure when alibi witnesses are interviewed

Answer 5

The O/C case should not interview an alibi witness unless the prosecutor
requests them to do so. If an interview is requested, follow this procedure.

1 - Advise the defence counsel of the proposed interview and give
them a reasonable opportunity to be present

2 - If the defendant is not represented, endeavour to ensure the witness
is interviewed in the presence of some independent person not
being a member of the Police.

3 - Make a copy of a witness’s signed statement taken at any such
interview available to defence counsel through the prosecutor. Any
information that reflects on the credibility of the alibi witness can
be withheld under s16(1)(o).

Question 6

Expert evidence

Answer 6

If the defendant intends to call an expert witness during proceedings, they
must disclose to the prosecutor:

• any brief of evidence to be given or any report provided by that witness,
  or
• if that brief or any such report is not available, a summary of the
  evidence to be given and the conclusions of any report to be provided.
• This information must be disclosed at least 10 working days before the
  date fixed for the defendants trial, or within any further time that the
  court may allow (s23(1)).