Alibi

[6-000] Suggested direction

The accused has tendered evidence intended to show that at the time the offence was being committed, [he/she] was somewhere else and therefore could not have committed the offence. This is what lawyers call an “alibi”.

You will recall the evidence of [accused/witness] that the accused was … [specify alibi evidence]. 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 you beyond reasonable doubt that the alibi evidence should be rejected, then you 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 at [somewhere else, according to the alibi evidence] at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was at [somewhere else, according to the alibi evidence] at the relevant time, and also persuade you, 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, you must acquit the accused.

If the Crown satisfies you beyond reasonable doubt that the alibi evidence should be rejected, it does not follow that you must necessarily convict the accused. In other words, you must not assume that because the alibi fails that the accused is guilty. You 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 you bring in a guilty verdict.

[6-010] Notes

1.: 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].
2.: 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.
3.: 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].
4.: 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.