PLEA OF ALIBI.

LEGAL PROVISIONS AND DECIDED JUDGEMENTS ON PLEA OF ALIBI

Duncan Abeynayaka – LLB, Attorney At Law.

 

CRIMINAL PROCEDURE CODE [4, 14 of 2005]

126A.

(1) No person shall be entitled during a trial on indictment in the High Court, to adduce evidence in support of the defence of an alibi, unless he has-

(a) Stated such fact to the police at the time of his making his statement during the investigation; or

(b) Stated such fact at any time during the preliminary inquiry; or

(c) Raised such defence, after indictment has been served, with notice to the Attorney-General at any time prior to fourteen days of the date of commencement of the trial:

Provided however, the Court may, if it is of opinion that the accused has adduced reasons which are sufficient to show why he delayed to raise the defence of alibi within the period set out above, permit the accused at anytime thereafter but prior to the conclusion of the case for the prosecution, to raise the defence of alibi.

(2) The original statement should contain all such information as to the time and place at which such person claims he was and details as to the persons if any, who may furnish evidence in support of his alibi.

(3) For the purposes of this section "evidence in support of an alibi" means evidence tending to show that by reason of the presence of the defendant at a particular place or in particular area at a particular time he was not, or was not likely to have been, at the place where the offence is alleged to have been committed at the time of the alleged commission.

 

EVIDENCE ORDINANCE

11. Facts not otherwise relevant are relevant—

(a) if they are inconsistent with any fact in issue or relevant fact;

(b) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Illustrations

(a) The question is, whether A committed a crime at Colombo on a certain day. The fact that on that day A was at Galle is relevant. The fact that near the time when the crime was committed A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances.

 

01. THE KING v. JAMES CHANDRASEKERA 44 NLR 97

In a case in which the accused’s plea is simply that he is not guilty, or in a case in which he pleads an alibi, if he creates a sufficient. doubt in the minds of the Jury as to whether he was present or not, or as to whether he did the act or not, or as to whether he had the necessary mens rea or not the accused is entitled to be acquitted because, in such an event, the prosecution has not sufficiently proved its case.

 

02. THE-KING-v.-MARSHALL 51 NLR 157

An alibi is not an exception to criminal liability, like Capri of private defence of Grave and sudden provocation. An alibi is nothing more than an evidentiary fact, which, like other effects relied on by an accused, must be weight in scale against the case for the prosecution. if sufficient doubt is created in the minds of the Jury as to whether the accused was present at the scene at the time the offence was committed, then, the prosecution has not established its case beyond reasonable doubt, and accused is entitled to be acquitted.

 

03. PUNCHI BANDA VS THE STATE 76 NLR 293

“Where the defence was that of an alibi and an accused person had no burden as such of establishing any fact to any degree of probability.”

 

04. GUNAPATA AND OTHERS V. THE REPUBLIC OF SRI LANKA [1994] 3 Sri L.R. 180

An alibi is the plea of an accused person that he was elsewhere at the time of the alleged criminal act. It is an evidentiary fact by which it is sought to create a doubt whether the accused was present at the time the offence was committed. In a case where the defence is that of an alibi an accused person has no burden as such of establishing any fact to any degree of probability. An alibi is not an exception to criminal liability like a plea of private defence or grave and sudden provocation. A direction to the jury that an alibi must be proved on a balance of probability is a misdirection on the law in regard to the burden of proof and an error in law causing grave prejudice to the accused.

 

05. BANDA AND OTHERS VS ATTORNEY GENERAL [1999] 3 SLR 169

“There is no burden whatsoever on an accused person who puts forward a plea of alibi and the burden is always on the prosecution to establish beyond reasonable doubt that the accused was not elsewhere but present at the time of the commission of the criminal offence.”

 

06. WELAGE KALUWAHUMPURAGE GUNADASA VS THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA CA 79/2007 SISIRA J DE ABREW J. 21.10.2013

I would like to lay down the following guide lines regarding the defence of alibi. In a criminal trial,

1. If the plea of alibi raised by the accused is accepted the accused should be acquitted.

2. If the plea of alibi raises a reasonable doubt in the prosecution case, the accused must be acquitted.

3. When an accused raises a plea of alibi, there is no burden on the accused to prove it.

 

07. GUNASIRI AND TWO OTHERS VS. REPUBLIC OF SRI LANKA [2009] 1 SRILR. 39

Although the 3rd accused appellant raised an alibi in his dock statement he failed to suggest his position to the prosecution witnesses.

It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination, it must follow that the evidence tendered on that issue ought to be accepted. The failure to suggest the defence of alibi to the prosecution witnesses who implicated the accused, indicates that it was a false one.

 

08. JAYATISSA V. HON ATTORNEY GENERAL [2010] 1 SR IL.R 279

• The word “inconsistence’ referred to in Section 11 of the Evidence Ordinance indicates the physical im possibility of the co-existence of two facts at any given time.

• Plea of alibi is not an exception to penal liability. Hence there is no burden of proof on the Accused to prove a plea of alibi section 1 0 5 of the Evidence Ordinance has no application. Evidence of alibi has merely to be weighted in the balance with the prosecution evidence.

• When the defence sets up an alibi, the prosecution is entitled to lead evidence in rebuttal.
• When an Accused takes u p a n alibi as a defence, three positions could arise;

(a) If the evidence is not believed the alibi fails,

(b) If the evidence is believed, it succeeds,

(c) If the alibi evidence is neither believed nor disbelieved, but would create a reasonable doubt as to the prosecution case on identity, the Accused is entitled to get the benefit of the doubt.

• There are certain fundamentals to be observed when an alibi is set up as a defence -

(a) If an alibi is established by unsuspected testimony, that will be satisfactory and conclusive.

(b) An alibi should cover the time of the alleged offence so as to exclude the Accused’s presence at the crime scene at the relevant time.

(c) The credibility of an alibi is greatly enhanced, if it was set up at. the time the accusation was first made and was constantly maintained. If it is taken up belatedly-the effect of the alibi will be less.

(d) An alibi can be falsified by mistaken identity and the difference of time in the clocks. A few minutes will make all the difference.

• A false alibi will weaken the defence case and strengthen the prosecution case.

Held further -

Per J . A. N. De Silva, C. J ., -

“. . . the trial judge h a s gone on the wrong assumption th a t burden of proof of alibi is on the defence. Having considered the evidence relating to alibi we are of the view that if proper evaluation was carried out by the trial judge she could have rejected this defence an d still convicted the appellant.