The Gazette 1987

GAZETTE

MARCH 1 9 8 7

defence solicitor may be leaving himself open to an action for negligence if he himself decides to go ahead and serve an Alibi Notice without conferring with Counsel if it later transpires that Counsel would have advised against the serving of such Notice or would have in fact drafted it in a different way. I suggest therefore that if it appears at all from initial instruc- tions that an alibi may be proffered, it is good practice to seek a remand for at least one month when the Book of Evidence is served, provid- ed of course the client so consents. That month should be used to in- terview potential witnesses and to consult properly with Counsel. The Notice can then be easily drafted and served well within the period. "Particulars" Once it is decided to serve an Alibi Notice it is important to con- sider what details it ought to con- tain. The Act merely states that "Particulars" of the alibi should be given. It goes on to provide that the Notice must contain the name and address, if known, of any alibi witnesses. It does not however define what is meant by par- ticulars. Furthermore there does not seem to be any case law even in the U.K. The Chief State Solicitor's Office in Ireland con- siders that the defence must in fact submit a Statement of Evidence of each witness. This is, I submit, much too wide a requirement. We are, thankfully, not yet at the stage where the defence must serve its own "Book of Evidence" on the prosecution. It is sufficient in my submission that the details of the alibi be made known, i.e. a note as to where the accused was at the particular time and place and a note as to who saw him there. Finally there is an onus on the defence to give the prosecution sufficient in- formation to allow them to trace the witnesses. Once the prosecution have received the Notice they then have the opportunity to investigate it. I am certain that this is going to give rise to a lot of difficulties and disagreements between prosecu- tion and defence in the future. It is noteworthy first of all that the Act does not give any power to the pro- i secution to investigate the alibi.

out in subsection 8. If the time limit is not adhered to the alibi may on- ly be adduced by leave of the court. In Ireland the prescribed time period is in effect 14 days from the date the accused is sent forward for trial. The relevant period in the U.K. is seven days after the com- mittal proceedings are completed. Again there is no judicial authority in Ireland as to how the trial Judge is to use his discretion. It would ap- pear however that up to now the discretion has been exercised in favour of the accused persons in our courts. This practice accords with the position in the U.K. as set out in several different cases. In "Sullivan" 4 for instance, it was held that the mere fact that the Notice was served out of time does not of itself, as a general rule, justify the court in exercising its discretion to exclude. The discre- tion must be exercised judicially. In that case the Notice had been serv- ed out of time, but the trial was ad- journed to allow the prosecutor to investigate the alibi. At the new hearing the defence was not allowed adduce the alibi evidence by the trial judge. It was held on ap- peal that the evidence ought to have been allowed in, and indeed Salmon L. J. referred to the pro- secution's argument that the evidence ought to be excluded, solely on the grounds that the Notice was out of time as being "indefensible" 5 and " a bizarre contention" 6 in the circumstances of the case. In R. -v- Cooper 1 the appellants legal advisors failed to

serve the Notice. The Appeal Court held that an accused person ought not to be put at a disadvantage by the errors of his legal advisors. The Trial Judge, it held, ought to have given leave for the evidence to be called subject to the service of a Notice outside time and to an ad- journment to allow the prosecution to investigate the alibi. Application of English Case Law in Irish Courts The reasoning in these cases ought, I submit, to be followed here. The requirement that Notice of an Alibi must be given was intro- duced into our Law to allow the prosecution time to investigate the alibi - it was not introduced to punish defendants for their delay and laxity in preparing their defence. Nevertheless the defence lawyer ought not to rely on the discretion of a trial Judge to allow in a Notice served out of time. At best he will find himself the victim of barbed judicial comment, while at worst he may find that he himself may have to pay the ex- penses associated with an adjourn- ment and retrial. In addition an accused person in those cir- cumstances would appear to have no d i f f i cu l ty in sustaining a negligence action against his defence solicitor. Until now defence lawyers have had several weeks, if not months, to prepare the defence case and interview the accused person and any defence witnesses. That is no longer the case. The defence solicitor should not serve an Alibi Notice without first interviewing the alibi witnesses and taking a statement from them. As will be shown later the prosecution may be able to use the Alibi Notice as part of their case. It could be suicide from a defence point of view to nominate certain witnesses on the blind and discover later that not only could they not corroborate the alibi but in fact destroy it. Interviewing witnesses and taking statements can take a lot of time, particularly when one is busy with other cases and the 14 days can easily slip by without one noticing. Furthermore, as in all probability a barrister will be briefed for the Jury trial, it is on- ly good practice that he or she should read the statements of the witnesses and settle the Notice before it is served. Here again the

Michael Reilly B.E. M.I.E.I.

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