Alibis: A Vital Part of the Criminal Law (ACT)

“Alibi” is one legal term which many laypeople would feel confident defining. An alibi is of course, “a claim or piece of evidence that one was elsewhere when an act, typically a criminal one, is alleged to have taken place” (Oxford Dixtionary). But don’t expect to see any dramatic revelations from the floor of Canberra courts in the middle of a trial with a defendant suddenly standing and shouting, “But I wasn’t there, and I can prove it!” In Australian courts, a defendant who plans to advance an alibi in their defence must give notice to the prosecution.

Giving notice of an alibi

Strict rules cover the revelation of an alibi in the Australian Capital Territory. Section 288 of the Crimes Act 1900 provides that a defendant must give notice to the prosecution (and thereby the police) within 14 days of his or her case being committed from the Magistrates Court for trial for an indictable offence (serious matters that have to be dealt with in the Supreme Court).

On the day of committal, the defendant receives a notice about what constitutes an alibi and the requirements of the court if the defendant is to raise an alibi. If the alibi notice is not given by the defendant within 14 days then the defendant must not call any other person to give evidence in support of an alibi without the court’s permission. If notice is given of an alibi, the notice has to meet certain requirements. It has to include the name and address of the person who can give the evidence supporting the alibi or, if the name or address is not known to the defendant at the time they give the notice, any information in their possession that might be of material assistance in finding the person.

If the name or the address is not included in the notice, the court has to be satisfied that the defendant, before giving the notice, took, and, after giving the notice, continued to take, all reasonable steps to ascertain the name or address. If the defendant subsequently ascertains the name or address or receives information that might be of material assistance in finding the person, the defendant needs to “forthwith” give notice of the name, address or other information.

If the person cannot be found by name or address, the defendant must immediately give notice of any information they have that might be of material assistance in finding the person. The same applies if the defendant later receives any such information.

Section 288 concludes by saying:

“Evidence in support of an alibi means evidence tending to show that by reason only of the presence of the defendant at a particular place or in a particular area at a particular time they were not, or were unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.”

Case law on alibis

Dates are often critical in cases involving alibis. This can be seen in the recent ACT Supreme Court matter of R v Masina (No 3) ([2020] ACTSC 154). In that matter, the defendant filed an Alibi Notice and the Australian Federal Police further investigated but the Crown did not seek to amend the indictment so as to specify a range of dates. The Crown contended it was sufficient to establish the incident occurred on a date that was a “reasonable approximation” of the date actually charged.

The charges involved were serious: one count of sexual intercourse without consent (Crimes Act, s54(1): maximum penalty 12 years imprisonment) and three counts of committing acts of indecency (Crimes Act, s60(1), each carrying a maximum penalty of seven years imprisonment).

In assessing the evidence in that case, Justice Mossop referred to “the most commonly cited discussion of the significance of dates”, being the dissenting judgment of Bray CJ in R v Pfitzner (1976) 15 SASR 171 at 185:

“Whether the date alleged in an information is vital to the charge must depend on the circumstances.  So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it ….  But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case.”

Mossop J said where an alibi existed, fairness to the accused required “that the case be determined on the basis that it is either made out beyond reasonable doubt in relation to the specific date or dates alleged or not at all”. Mossop J found all elements of the alleged offences proved (being that the accused intentionally penetrated another person and committed acts of indecency upon that person; that the other person did not consent to the penetration or other acts; that the accused did not reasonably believe that the other person had consented to the penetration and other acts). However, the date, while not an element of the offences charged, proved critical. His Honour quoted various cases where it had been found that dates could be “material to the integrity of the criminal process”, noting particularly  the judgment of Derrington J in R v Jacobs [1993] 2 Qd R 541:

“The correct view is that the nature of the allegations in the Crown case may be such that the prosecution is fixed to a certain date and it would be wrong to countenance any departure from that point when it is especially relevant to proof, alibi or the like.”

Therefore, Mossop J, concluded: “I am satisfied beyond reasonable doubt … that the elements of each of the offences charged are established.

“However, there is a reasonable doubt as to whether the offending alleged occurred in the period specified in the indictment … a verdict of not guilty must be recorded.”

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