The Gazette 1987

GAZETTE

MARCH 1 9 87

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

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

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

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

R. -v- Watts.

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