4.27.1 - Charge: Alibi

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Note: This direction is designed for cases where the judge needs to direct the jury about both the risk of the jury reversing the onus of proof and the risk of treating the rejection of an alibi a basis for a conclusion of guilt. If the jury could use rejection of an alibi as evidence of incriminating conduct, this direction must be modified and further directions given in accordance with Jury Directions Act 2015 Part 4, Division 1.

I am now going to turn to the evidence on NOA’s movements.

You heard evidence from [identify alibi witnesses] that, at the time of the alleged offending, NOA was [identify alibi]. Lawyers refer to this evidence as an alibi.

There are two directions you must follow about this alibi evidence.

First, you must remember that the prosecution bears the burden of proving NOA’s guilt and alibi evidence does not change this. The defence does not have to prove the accused was elsewhere at the time of the alleged offending. The prosecution must prove the accused committed the offence and that the alibi does not cause you to have a reasonable doubt. In other words, the prosecution must eliminate any reasonable possibility that the alibi is true.

Second, if you reject the alibi evidence, that does not mean the accused is guilty. Rejecting an alibi does not add to the prosecution’s case. It merely removes one barrier to you being satisfied the prosecution has proved the accused’s guilt beyond reasonable doubt.

The prosecution must still satisfy you beyond reasonable doubt of each and every element of the offence charged. Rejection of the alibi will not fill any gaps in the prosecution’s case. If you are satisfied beyond reasonable doubt that the alibi evidence should be rejected, put it aside, then ask yourselves am I satisfied beyond reasonable doubt that the elements of the offence are proved. If the answer is no, you must acquit the accused.[1]

[Refer to relevant evidence and arguments about the alibi evidence]

Last updated: 25 November 2019

Notes

[1] - If the jury can use rejection of an alibi as incriminating post offence conduct, this paragraph should be modified or omitted.

See Also

4.27 - Alibi