Alibis (SA)

A person who is facing criminal charges may contest the charges by advancing a legal defence or by relying on a factual defence. Legal defences include self-defence, emergency and mental impairment. Factual defences include that the alleged offence did not occur at all or that the accused was not the person who committed it. If the accused has evidence that they were elsewhere at the time of the alleged offence, and has evidence to support this, they may rely on an alibi. This page deals with alibis in South Australia.

What are alibis?

An alibi exists when an accused person has evidence that they were at a particular location at the time of the alleged offence and therefore could not have committed the offence or would have been very unlikely to have committed the offence.

Raising an alibi

Once the defence has raised an alibi, the prosecution has the burden of proving that the accused was at the scene of the offence. The accused does not have to prove that they were not at the scene. This means that the prosecution has to disprove the accused’s alibi.

Defence must give notice

If a person is being tried on indictment and the defence intends to rely on an alibi, it must give notice of this to the prosecution and to the court (section 124, Criminal Procedure Act 1921).

A matter being tried on indictment is an indictable matter that is being determined in the District Court or Supreme Court.

However, if evidence of the alibi was adduced during the committal hearing, notice of the alibi does not need to be given.

If the defence relies on a alibi in a mater being tried on indictment without having given notice of the alibi, the court may refuse to admit the evidence. Alternately, the court may grant an adjournment to allow the prosecution the opportunity to explore the proposed alibi.

Alibis in the Magistrates Court

When a matter is being heard in the Magistrates Court, there is no formal requirement for the defence to provide notice of an alibi. However, it is generally expected to do so as a matter of courtesy.

The importance of dates

Successfully relying on an alibi requires witnesses and the accused to be absolutely certain of the date and time that events occurred. To disprove an alibi, the prosecution will also need to prove that the offence was committed at the time and date specified on the charge sheet.

In other types of contested criminal matters, an accused person may be found guilty even where the exact details relating to the time and place the offence occurred are state incorrectly on the charge if both parties are in agreement about the surrounding circumstances. However, when an alibi is being advanced,  it must be proven that the offence was committed at the exact time and location stated on the charge.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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