Defence of alibi: Everything you need to know


Today I’m going to share with you everything you need to know about the defence of alibi also known as a plea of alibi.

in this guide, you will learn

what is a defence of alibi

example of alibi

how to raise a plea of alibi

effects of a plea of alibi

etc

let’s get started

What is a defence of alibi?

A defence of alibi also known as a plea of alibi is one of the defences in criminal cases. It is taken by the accused. It means that the accused was physically not present at the scene of the crime when the offence was committed.

According to the Black’s Law Dictionary, an alibi is a defence based on the physical impossibility of a defendant in a location other than the scene of the crime at the relevant time. It is a form of defence whereby a defendant attempts to prove that he or she was elsewhere when the crime in question was committed.

Example of alibi

Assuming you are charged with the offence of stealing your neighbour’s properties in street A. The alibi is when you claim that you were not in street A on the date which the offence is termed to be committed, instead, you were out of town, in the village B so you did not commit the crime.

How to raise the plea of alibi

It is trite law that notice of intention to raise a defence of alibi must be given both to the court and prosecution before the hearing of the case. This is normally done at the first possible opportunity by a suspect when answering a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established.

In Tanzania, Section 194 (4) of the Criminal Procedure Act Cap. 20 R.E. 2002, (CPA), makes it mandatory for an accused person who intends to rely on an alibi in his defence to furnish a notice of his intention to rely on such a defence to the court and the prosecution before the hearing of the case.

It should be noted that the purpose of giving notice of alibi is to divert the mischief of the defence disclosing his defence of alibi at a late stage of the trial.

However, in cases where an accused person fails to furnish a notice of his intention to rely on the defence of alibi, he or she must provide the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed, otherwise, the court may in its own discretion accord no weight of any kind to such defence of alibi.

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In PETER MTENGO AND FOUR OTHERS v REPUBLIC 1994 TLR 112 (CA), the court held, that the trial court did not error in exercising its discretion with regard to the appellants’ defence of an alibi, thus they were rightly convicted.

Also in CHARLES SAMSON V REPUBLIC TLR 1990 39, Judge Makame and Ramadhani went further to explain that, where such defence (alibi) has not been disclosed by an accused person before the prosecution closes its case, this simply means, where such disclosure is not made, the court, though taking cognizance of such defence “may in its discretion accord no weight of any kind to the defence”.

In the case of DPP V NYANGETA SOMBA AND 12 OTHERS 1993 TLR 69, there was, in this case, sufficient notice of intention to raise the defence of alibi within the meaning of section 194 of the CPA. The court went further by showing that although no form of notice has been prescribed the notice must furnish sufficient particulars of the alibi and the notice must be given before the main hearing.

Impact of the improper raising of defence of alibi

Failure to follow the proper procedure as prescribed by the law shall result in the rejection of the defence.

This has been elucidated in the famous case ofbMASOUD AMALIMA V REPUBLIC 1989 TLR 25, in which the appellant’s defence of alibi was properly rejected because he did not give the notice required under section 194(4) of the Criminal Procedure Act, 1985, and he did not call the person he claimed was with him at the time of the commission of the offence.

The burden of proof in a plea of alibi

The burden of proof in a plea of alibi is on the accused.

The burden of proof is often associated with the Latin maxim that semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: “the necessity of proof always lies with the person who lays charges.

The statement of the accused that he was not present there is not enough.

To successfully raise the defence of alibi the accused must give particulars of his whereabouts at the particular time and must adduce strong evidence to support his or her claim.

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The accused must be so far away at the relevant/material time that he could not be away at the place where the crime was committed.

For instance, “A” alleges that he was in Iringa by the time when “B” was murdered in Mtwara.

To prove his alibi, the court may order “A” to produce particulars or documents evidencing his absence at the material time when such murder was committed, such as Bus Ticket, Air Ticket, Hotel receipt, etc.

The court may also go further to order “A’ to call the person (s) who actually was with him in Iringa and those who saw or knew of his absence in Mtwara or rather his journey.

This will enable the court to determine the cogency of his evidence and the proper weight to attach to the evidence of the accused.

In IJALI JUMA KOCHO v REPUBLIC 1994 TLR 206 (CA), the court held, among others, that the appellant was under no legal obligation to prove the alibi but in the fact of the allegations made against him one would reasonably expect him to call the person he claims he was with at the time of the event.

In alibi, the accused person only has what is referred to as evidential burden. That means the only onus on the accused person is an evidential burden the effect of which is not dependent upon its preponderance but rather the possibility of establishing reasonable doubt in the prosecution’s case.

The evidential burden may be scanty or minimal but yet very effective in raising reasonable doubt in the minds of the Judge.

In RASHIDI ALLY v REPUBLIC 1987 TLR 97 (HC), Chipeta J., held that where the accused person puts forward the defence of alibi, he does not thereby assume the burden of proving such alibi.  It is sufficient if such alibi introduces reasonable doubt in the prosecution’s case.

It may be abundant yet raise no doubt in the minds of the Judge.

In ANANGISYE MASENDO NG’WANG’WA v REPUBLIC 1993 TLR 202 (CA), it was held that the appellants’ defences of alibi did not raise any reasonable doubt on the prosecution case and were properly rejected.

Once a defence of alibi has been promptly and properly put up, and the accused person has discharged the evidential burden of adducing evidence of an alibi, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond a reasonable doubt.

The duty of the learned trial Judge is to test the evidence of alibi against the evidence on the issue adduced by the prosecution and if there is doubt in the mind of the learned trial Judge to resolve it in favour of the accused. Refer to Rashidi Ally’s case (supra).

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The onus on the prosecution to prove the charge against the accused beyond a reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of an alibi.

However, where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established.

In the case of IJALI JUMA KOCHO V REPUBLIC 1994 TLR 206 (CA), the court held, among others that, the appellant was under no legal obligation to prove the alibi but in the fact of the allegations made against him one would reasonably expect him to call the person he claims he was with at the time of the event.

In criminal trials, the defence of an alibi is not generally accepted unless backed by strong and solid evidence.

Just for the matter of reference, in Nigerian cases of Eze V. The State (1976)1 S.C. p.125 at 130. Gashi & Ors. v. The State (1965) N.M.L.R. p. 333 per Brett, J.S.C., at p.334 the Supreme Court of Nigeria observed that,

in this regard, it is settled law that an accused person whose defence is an alibi, that is he was elsewhere at the time of the commission of offence has the onus to bring evidence on alibi, which when considered with the case for the prosecution creates a reasonable doubt in the mind of the Judge so as to entitle him to an acquittal. The burden is far less than that in a civil case, i.e. balance of probabilities. His mere the assertion that he was elsewhere does not, however, discharge the burden unless the prosecution during the investigation found it to be true or is in doubt whether or not it is true

Thus, the court must decide on the success or failure of the defence of alibi based on the evidence before it.

Effects of a plea of alibi

The effect of a plea of alibi is, once successfully raised and accepted by the court it may lead to the discharge of the accused person, but once failed the court will proceed to determine the fate of the accused person based on prosecution evidence.

Isack Kimaro

Editor-in-chief and founder of sherianajamii.com. Holder of Bachelor of Laws (LL.B) from Mzumbe University and Post Graduate Diploma in Legal Practice from the Law school of Tanzania. Lawyer by profession and blogger by passion.

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