4.27 - Alibi

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Introduction

  1. An alibi is evidence that the accused was at another place at the time of the alleged offending. Such evidence is more particular than a bare denial of being at the place of the alleged offending (DPP v Debs [2002] VSC 79, [15]).
  2. Victorian criminal practitioners have traditionally been cautious about running alibi defences (Dun v The Queen [2019] VSCA 43, [22]).
  3. The admissibility of alibi evidence is regulated, in part, by the Criminal Procedure Act 2009. An accused must obtain leave of the court in order to give evidence of an alibi personally, or to call evidence in support of an alibi, if the accused has not given notice of alibi within 14 days of being committed for trial or, if that does not apply, within 14 days of receiving a copy of the indictment (Criminal Procedure Act 2009 ss190(1), (2). See also DPP v Debs [2002] VSC 79, [11]-[12]).
  4. The court must grant leave if it appears that the accused was not informed of the requirement to give notice (Criminal Procedure Act 2009 s190(7)).
  5. Ordinarily, the prosecution cannot lead evidence of a notice of alibi (DPP v Debs [2002] VSC 79, [18]).
  6. Evidence rebutting an alibi is relevant and admissible as part of the prosecution case (Killick v The Queen (1981) 147 CR 565; R v Rich (Ruling No 13) [2008] VSC 520, [18]).
  7. Where the prosecution had been informed of the alibi, the prosecution must generally call evidence rebutting the alibi before it closes its case. It is generally not appropriate to wait until after the accused has called evidence and seek to lead the evidence in rebuttal (Killick v The Queen (1981) 147 CR 565). While this rule does not apply if the prosecution learns of the alibi for the first time after it closes its case, Criminal Procedure Act 2009 s 190 means that this situation will rarely arise.

    Directions about alibi evidence

  8. Directions about alibi evidence are designed to deal with the risk that the jury will mistakenly think that:
  9. At common law, it was thought that these problems “will almost inevitably arise”. However, there was no general rule the jury must be directed about these dangers. Instead, a direction was only required if there is an appreciable danger of the jury misunderstanding how the burden of proof operates (R v J (No 2) [1998] 3 VR 602; Dun v The Queen [2019] VSCA 43, [23]; R v Merrett [2007] VSCA 1, [17], [27]). Under the Jury Directions Act 2015, the need for a direction depends on whether a direction is sought and whether, despite the absence of any request, there are substantial and compelling reasons for giving the direction (Jury Directions Act 2015 ss12, 14, 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.
  10. In Dun v The Queen [2019] VSCA 43 at [22], the Court of Appeal outlined that an alibi direction may tell the jury that:
  11. Another form of alibi direction was quoted with approval by Ferguson CJ and Maxwell P in Pell v The Queen [2019] VSCA 186:

    The Crown must establish beyond reasonable doubt that the accused was at X at the relevant time. The Crown cannot do so if there is any reasonable possibility that he was at Y at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was at Y at the relevant time, and also persuade you, on the evidence on which the Crown relies, that beyond reasonable doubt he was at X at that time (quoting R v Kanaan (2005) 64 NSWLR 527, 559 [135])

  12. In some cases, it will be appropriate to direct the jury that rejection of an alibi cannot be used to support other evidence of guilt. Whether such a direction is necessary will depend on how the case is conducted and whether there is any risk of the jury misusing the alibi evidence (Sindoni v The Queen (2011) 211 A Crim R 187, [86]-[89]).
  13. In other cases, evidence rebutting an alibi may also be relevant to show the accused deliberately created a false alibi. In that situation, the judge will need to consider whether the jury can use the creation of a false alibi as incriminating conduct evidence. This may depend on whether there is evidence to support a conclusion that the alibi was deliberately fabricated, rather than being a product of mistake by witnesses. The jury can only use fabrication of alibi against the accused where they are satisfied that the only reason for the fabrication is to deceive the jury (Killick v The Queen (1981) 147 CR 565; R v Juric (2002) 4 VR 411, [39]-[41]; R v Chan, Unreported, 12 March 1998, Victorian Court of Appeal; King v The Queen (1986) 15 FCR 427). See also Incriminating conduct (Post offence lies and conduct).
  14. The risk of the jury misusing their rejection of alibi evidence is enhanced where the jury is directed to look for evidence to support the complainant’s evidence, where there is a long delay between the alleged offending and the trial or where there is other evidence relied on as lies constituting incriminating conduct evidence (R v J (No 2) [1998] 3 VR 602).
  15. The need for an alibi direction will depend, in part, on whether the alibi covers the whole of the period of offending. Where the alibi does not cover the complete period of offending, there is a greater risk that the direction will be unnecessary and confusing (Dun v The Queen [2019] VSCA 43, [25]; R v Liewes, Unreported, 10 April 1997, Victorian Court of Appeal).

Last updated: 25 November 2019

In This Section

4.27.1 - Charge: Alibi

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings