Recent Work ALIBI EVIDENCE in a Criminal Trial
ALIBI EVIDENCE in a Criminal Trial
ALIBI EVIDENCE
In the week commencing 15 November 2010, Ms McIntosh was briefed to appear in a District Court hearing before a jury of 12 for a Defendant charged under Section 98 of the Crimes Act NSW (1900) being Robbery with Arms etc and Wounding and Section 97(2) Robbery etc or stopping a mail, being armed or in company. Subsection (2) is the aggravated offence.
There was a co-accused (being brothers) and there was one trial. The brother's defence was one of Alibi.
Alibi Evidence is when an accused has tendered evidence that is intended to show that at the time the offence was being committed he or she was somewhere else and therefore could not have committed the offence.
When an accused person puts forward an alibi, the burden of proving the accused’s guilt continues to rest on the Crown. If the Crown fails to satisfy the jury beyond reasonable doubt that the alibi evidence should be rejected, then the jury must acquit the accused.
The Crown must disprove the alibi.
The Crown must establish beyond reasonable doubt that the accused was at the scene of the crime at the relevant time. The Crown cannot do so if there is any reasonable possibility that the accused was somewhere else at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was somewhere else at the relevant time and persuade the jury on the evidence on which the Crown relies that beyond reasonable doubt the accused was at the scene of the crime at that time. If the Crown fails to remove or eliminate that reasonable possibility the accused must be acquitted.
If the Crown satisfies the jury beyond reasonable doubt that the alibi evidence should be rejected, it does not follow that the accused must necessarily be convicted. The jury must not assume that because the alibi fails that the accused is guilty. The jury must still be satisfied beyond reasonable doubt, upon the evidence as a whole, that the Crown has made out its case against the accused before it can bring in a guilty verdict.
Notice of an alibi must be given by the accused: Criminal Procedure Act 1986, s 150. The accused requires leave from the court to introduce alibi evidence if notice is not given within the prescribed period. A court should be slow to refuse a leave application under s 150(2) unless prejudice arises such as is incapable of being addressed without significant disruption of the trial: R v Skondin [2005] NSWCCA 417 at [47].Cases concerned with whether the Crown should be permitted to call evidence in reply (seeking to rebut an alibi) include: Killick v The Queen (1981) 147 CLR 565; Blewitt v The Queen (1988) 62 ALJR 503; R v Heuston (1996) 90 A Crim R 213. For a recent English case, see: R v Lesley [1996] 1 Cr App R 39.- The above suggested direction is intended to be consistent with R v Amyouni, (unrep, 18/2/88, NSWCCA); R v Steeden (unrep 19/8/94, NSWCCA) and R v Kanaan [2005] NSWCCA 385 at [135]. For a case where an accused had served an alibi notice on the Crown but conceded through counsel at the trial that the contents of the notice were erroneous and did not give evidence at the trial, see: R v Siulai [2004] NSWCCA 152 where the appropriate directions to the jury in such circumstances were considered.
Outcome: In this matter, both brothers entered a plea of guilty before the end of the trial and are before the court for sentencing on 4 February 2011.