The Gazette 1987

GAZETTE

MARCH 1 9 8 7

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"

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"

and " a bizarre

contention"

in the circumstances

of the case. In

R. -v- Cooper

the

appellants legal advisors failed to

Michael Reilly

B.E. M.I.E.I.

CONSULTANT

CIVIL ENGINEER

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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

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.

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