Alibi

“An alibi is a defense where the accused pleads that he was so far distant at the time from the
place where the crime was committed, that he could not have been guilty”.

King v Marshall

- Alibi is an evidentiary fact, not an exception to criminal liability.

Yahonis Singho v Queen

- The omission to direct the Jury on the intermediary position, where there was neither an
acceptance nor a rejection of the alibi, was a non-direction on a necessary point and
constituted a misdirection. The conviction was quashed.

Damayanu v The Queen

- Four accused were charged with attempted murder. The 2nd accused denied that he
participated in the assault, but no evidence was led to show that he was elsewhere. In
appeal it was suggested that the denial by the 2nd accused should be considered an alibi.It
was held;
1. A mere denial doesn’t suggest an alibi
2. An alibi arises where there is a denial and evidence that the accused was elsewhere.
3. The defence must lead evidence to the effect that the offence was committed by some
other person other than the accused.

The appeal was dismissed.

SECTION 11
Facts not otherwise relevant are relevant –

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

Illustration – 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.

Jayatissa v AG

Held
(1) The word “inconsistence’ referred to in Section 11 of the Evidence
Ordinance indicates the physical impossibility of the co-existence
of two facts a t any given time.

(2) 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
105 of the Evidence O ordinance has no application Evidence of alibi
has merely to be weighted in the balance with the prosecution evidence.

(3) When the defence sets up an alibi, the prosecution is entitled to

lead evidence in rebuttal.

(4) When an Accused takes up an 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.

(5) 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
m 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.

(6) A false alibi will weaken the defence case and strengthen the
prosecution case.

Held further -
“. . . The trial judge has gone on the wrong assumption that 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
and still convicted the appellant.

Mannar Mannan v Repulblic of Sri lanka

- Trial judge omitted to direct the jury regarding the intermediary position. Even if there is
a misdirection, the court can act under Section 334 (1) proviso to the Code of Criminal
Procedure Act which states the court could apply the proviso to Section 334 and still
affirm the conviction if the court of appeal is convinced that no substantial miscarriage of
justice has actually occurred. The appeal was dismissed.

Section126 A of the code of Criminal Procedure Act No.14 of 2005

1. Alibi must be stated in the Police statement.

2. It must be stated in the preliminary inquiry.
3. In the original statement the accused ought to have stated the place where he was, the
time and the names of the witnesses.
4. After indictment is served the AG should be noticed at least 14 days before.
5. The Court in an appropriate case may permit the accused to raise an alibi before the
conclusion of the prosecution despite the delay.