The Gazette 1987

MARCH 1 9 87

GAZETTE

However the prosecution will argue that there is little point in their hav- ing Notice of an alibi unless they can investigate it. This is the ac- cepted position in the U.K. Further- more the prosecution there are entitled to interview whoever they like in relation to the alibi and this includes the defence witnesses. This is a revolutionary concept and is a t variance with hundreds o f years o f practice. I t i s also very much open to abuse unless strict controls are exercised by both the prosecution and defence. Many alibi witnesses will never have come i n contact with Garda of- ficers or ever have been to a Gar- da Station before. It is possible that such witnesses could be frighten- ed or tricked into making damaging statements by unscrupulous police officers. Even i f the Garda Officer i n t er v i ewi ng th e witnesses behaves with all propriety the very fact o f being i n a Police Station may sufficiently upset a witness in- to making inconsistent statements. It has been alleged for instance in England that an alibi witness for one o f th e defendants i n th e Guilford Four case was assaulted and threatened in the Police Station to such a degree that he changed his statement i n relation t o the times o f meeting her. Already i n this country allegations have been made t o m e b y potential alibi witnesses i n one case that they have been threatened and bullied into withdrawing their evidence by Gardai. These allegations are a t present under investigation by the Commissioner and the D.P.P. Suggested Reforms in Procedure To avoid some of these problems I would make the following sugges- tions. Firstly, alibi witnesses should only be interviewed by Garda Of- ficers who are not directly concern- ed with the investigation o f the crime. Secondly th e interviews should occur at a location accep- table t o witnesses an d no t necessarily a Garda Station. Thirdly the accused's solicitor should insist on his right to be present at all such interviews and should indicate when serving his Notice that he will only consent to the witnesses be- ing interviewed i f all these condi- tions are met. On a more general note i t has been held i n R. -v- Rossborough 8 that the prosecution

can adduce evidence that th e defence alibi witnesses had not at- tended for interview by the police in relation to the alibi. The reason that I am advocating extreme caution in this area is not only the desire to avoid the poten- tial intimidation o f the defence witnesses but also the recognition that the Alibi Notice is a document that can harm i f not destroy the defendant's case. It has been held in several cases in the U.K. that the prosecution may pu t th e Alibi Notice into evidence as part of their case. I n R. -v- Rossborough 8 i t was held that the Notice was i n fact equivalent to a statement by the accused. In the earlier case of R. -v- Bridget 7 9 it was held that not only can the prosecution put the Notice into evidence, but that a trial Judge may comment on the fact that the accused did not call evidence i n support o f the alibi. Before the introduction of the re- quirement of Notice, i f a defence witness for whatever reason decid- ed not to give evidence neither the Court nor the prosecution need have b en aware o f the defence problem. Now i f the above two cases are followed here the failure will be highlighted and the court will be asked to draw perjorative in- ferences which can only be damag- ing to the defence. The Act itself would appear to envisage, in cer- tain circumstances, the prosecu- tion leading evidence to disprove the alibi before in fact evidence in support of the alibi was given. (See Section 20 - Subsection 4.) The Rossborough case however is an extreme interpretation of this sub- section. The judgment there differs considerably from the ruling of the Court of Appeal in the earlier case of R. -v- Watts. 10 There the court disapproved of the practice of the prosecution in invariably putting in the Notice as part of their case and advised that th e prosecution should give the most careful con- Í sideration before s o doing and should be prepared later to justify their decision. I would hope that our courts would choose to follow the spirit o f the Judgement i n "Watts". I t is again important to note that section 20 was not in- troduced in order to strengthen the prosecution's case but to ensure that they would not be surprised by the introduction o f a last minute alibi which could have been

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disproved by them if they had suf- ficient time to investigate it. If the reasoning in "Rossborough" is ac- cepted, one consequence severe- ly detrimental to the accused and not envisaged by the draftors of the section will follow. An accus- ed person has always had the right not to adduce any evidence if he is of the opinion that the prosecution case is so weak that the jury will acquit. If however an accused has served an Alibi Notice he may feel bound t o call evidence and call witnesses in order not to leave the jury with the erroneous impression that he is unable to prove his alibi. Suppose for instance that at the Return fo r Trial th e Book o f Evidence discloses a very weak prima facie case against th e accused. The accused has given his lawyers details o f a n alibi. However both h e and hi s alibi witnesses ar e nervous an d frightened o f giving evidence i n court. Furthermore, two o f hi s witnesses, by coincidence, have a large number o f previous con- victions which of course can be put to them i n cross-examination by the prosecution i f they give

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