When a person is charged with a criminal offence, they may contest the charge by advancing a legal defence such as self-defence or by relying on a factual defence such as an alibi. An alibi exists where an accused was not at the scene of the alleged offence and can adduce evidence that they were elsewhere. This page deals with alibis in the ACT.
What is an alibi?
An accused person has an alibi where, at the time the offence was committed they were at a location and therefore could not have committed the offence or would have been very unlikely to have committed the offence.
Burden of proof
The accused does not have to prove that they were not at the scene of the crime. Once the defendant has raised an alibi, the prosecution must prove that the accused was at the scene of the crime. In other words, the prosecution has the burden of disproving the alibi.
Notice of alibi
When a person is charged with an offence on indictment in the ACT, and they intend to rely on an alibi, they must give the prosecution notice of the particulars of the alibi within 14 days of being committed for trial (section 288, Criminal Code 1900).
The defence must provide the details of any person they intend to call to give evidence in support of their alibi.
The requirement to provide notice of an alibi exists so that the prosecution has the opportunity to investigate the alibi and adduce evidence to rebut it.
Notice of an alibi must be given to the Director of Public Prosecutions in Writing. A copy must also be tendered to the court.
Where notice of alibi is not given
If the defence raises an alibi in a matter being dealt with on indictment without having given notice of the alibi, the court may disallow the evidence. Alternately, the court may require the adjournment of the matter so that the alibi can be investigated.
If the defence calls a witness in support of an alibi and the witnesses details have not been provided to the prosecution, the court may disallow the evidence. Before doing so, the court will consider how long the accused had had the witness’ details and whether they took steps to provide them to the prosecution.
Alibis in the Magistrates Court
There is no formal requirement to provide notice of an alibi in the Magistrates Court or Children’s Court. However, the defence is generally expected to do so as a matter of professional courtesy.
The importance of dates
Successfully relying on an alibi requires the accused and the defence witnesses to be absolutely certain of the date and time that events occurred. Disproving an alibi also requires establishing that the offence was committed at the precise time and date specified on the charge sheet.
In some cases, a person may be found guilty of an offence even where the precise date and time specified on the charge sheet are incorrect if both parties agree about the surrounding circumstances. In a case where an alibi is advanced, though, as a matter of procedural fairness to the defendant, the prosecution must prove that the offence was committed at the precise date and time specified on the charge.
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