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GAZETTE
MARCH 1 9 8 7
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.
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