The Gazette 1987

MARCH 1 9 8 7

GAZETTE

evidence. The defence lawyers are now in a quandary. If they do not give Notice of Alibi, witnesses can- not be called without leave of the court. If they do serve Notice, they may feel that they have to call the witnesses, even if the case is almost non existent against the ac- cused. The credibility of some of these witnesses may be under- mined by the prosecution owing to their inexperience and nervous- ness, while cross-examination of those with convictions may clothe the accused, by association, with an aura of criminality. The decision as to whether or not to go into Evidence is a difficult enough one to make in the course of a trial. It is an impossible decision to make only on the basis of the Book of Evidence. Implications of Present Practice Very few cases run exactly as one would expect from the Book - additional evidence is often served long after the Return for Trial. Sometimes witnesses will not "swear up" or even turn up for the trial. The accused person is now in effect being asked to decide how he is going to run his case without even hearing the evidence against him. The problem is further exacer- bated when one realises that the accused himself cannot give Alibi Evidence unless Notice is given. This was held in R. -v- Jackson and Robertson , 11 and has been follow- ed here by at least one Circuit Judge, Judge Lynch. An alibi, after all, is a contention that at the rele- vant time the accused person was in a different place and not that he was with other people. Therefore if an accused wishes to deny the charges by saying that he was elsewhere at the time, he must give Notice. Again, if Notice is given and if the accused is not called, the jury may draw inferences other than the only one they are entitled to make i.e., that the accused feels that there is not sufficient evidence against him at the end of the State's case to secure conviction. If Notice of the Alibi is not served on the basis that the defence lawyers believe that the case against the accused is so weak, difficulties will arise if the prosecu- tion serves additional evidence out- side the prescribed times. In such

a case one would expect a trial Judge to exercise his discretion to allow Alibi evidence, but he might refuse to do so on the grounds that the accused at the relevant time deliberately chose not to avail of section 20. In any case if the defence lawyers make the wrong decision and the accused is con- victed they might easily find themselves at the wrong end of a negligence action. It is to be hoped therefore that the decision in "Watts" will be followed, and that only in exceptional cases will the prosecution be allowed to make the Notice part of its own case. Neither the Irish nor the U.K. Act require that the defence serve the Notice on the Court as opposed to the prosecution. There has been a practice direction in the U.K. since 1969 however, that Registrars of the Courts should be served with a copy. 12 Conclusion Finally, it has been held in "Lewis' that it is not open to a trial Judge in his summing up to comment unfavourably on the fact that the defendant at the time of the arrest did not tell the arresting officers of his alibi. The Act itself had given the defend- ant a specific length of time to give Notice of the Alibi. This safeguard of an accused person's rights will of course be severely curtailed when the remainder of the Criminal Justice Act 1984 and in particular section 19 comes into operation in the near future. The Criminal Justice Act 1984 is a revolutionary piece of legislation. What appears to be the more controversial sections have not yet come into operation. Section 20 of the Act was treated by observers at the time of its enactment as a relatively innocuous piece of legis- lation. It is my submission that unless the section is strictly con- strued in favour of the accused per- son, it will have far reaching consequences which have been outlined earlier. It is a little dis- turbing that the "innocuous" sec- tion will have such an effect on our criminal jurisprudence. One can only await the introduction of the more controversial sections with apprehension. •

FOOTNOTES (1) Section 11 Criminal Justice Act 1967. It is almost word for word similar to our Section 20. (2) R. -v- Lewis. Court of Appeal, Criminal Division, 53 Cr. App. Rep. 76. 4/11/68. (3) R. -v- Hassan. Court of Appeal. Criminal Division, 54 Cr. App. Rep. 56. 30/10/69. (4) R. -v- Sullivan. Court of Appeal Criminal Division,. 54 Cr. App. Rep. 389. 1/6/1970. (5) at page 395. (6) ' at page 397. (7) R. -v- Cooper. Court of Appeal. Criminal Division, 69 Cr. App. Rep. 229. 21/5/1979. (8) R. -v- Rossborough. Court of Appeal. Criminal Division, 81 Cr. App. Rep. 139. 19/3/1985. (9) R. -v-Brigen. (1973). Crim. L.R. 579. (10) R. -v- Watts. Court of Appeal. Criminal Division, 71 Cr. App. Rep. 1 52. 21/10/1982. (11) R. -v- Jackson and Robertson. (1973). Crim. L.R. 356. (12) Practice Note - Court of Appeal. Criminal Division, [I969| 1. ALL ER 1042. 20/3/1969. See also an article by Michael McDowell B .L. in the 4th issue of the Criminal Law Journal, 1986.

For Sale

ESTABLISHED SOLICITORS PRACTICE

In County Cork T own

Audited Figures

available

Enquiries from principals only to: MR . FRANK DALY, Solicitor, Ronan Daly J a rmyn & Co., 1 2 Sou th Ma l l, Cork. Tel.: ( 0 2 1) 9 6 2 8 0 0 .

4 2