Discrepancies of tempat kejadian

CONCEPT

 Alibi is merely evidence that demonstrates a defendant in a criminal case was

somewhere other than the scene of a crime at the time that the crime occurred.
 For example, John is charged with killing Steve. John offers evidence that he was in
class that day at the time of the murder. That evidence could be in the form of witnesses
who were in class with John, an attendance sheet showing him in class, or a recording of
the class from that day showing him in the audience, among other things. That evidence
demonstrates an alibi.
 Ku Lip See v PP: which the court held that an alibi is a defence that places the
defendant at the relevant time of the crime in a different place than scene involved and
so removed therefrom as to render it impossible for him to be guilty party. Thereafter, it
means that they now have placed the burden on the accused to prove their innocence by
adducing the alibi.
 Syed Abdul Aziz & Anor v Public Prosecutor: Alibi is an evidential burden placed on
the accused to raise a reasonable doubt.
 Characteristics:
o A specific place: evidence to state that the accused was at a specific place other
than the crime scene and the accused must disclose where he was at the time of
the alleged offence and what he was doing.
o Different location: testimony by the accused that he was at the scene of crime but
at a location different from the location stipulated in the charge where the
commission of crime occurred
o Another geographical territory: evidence must show that by reason of accused’s
presence at some particular place at a particular time, he cannot or unlikely to be
at the place where crime is committed
o Never at scene of offence: evidence tending to show in particular detail that the
accused was never present at the alleged scene of crime.
o Place of commission of offence: the place of commission of crime, for the
purpose of establishing whether the accused was at a particular place or area
other than the place of commission of crime is determined by referring to the
place named in the charge rather than from the adduced evidence

LEGAL PROVISIONS

 Provision under S. 103 Evidence Act: burden of proof as to particular fact

 o The burden of proof as to any particular fact lies on that person who wishes the
court to believe in its existence, unless it is provided by any law that the proof of
that fact shall lie on any particular person.
o Illustration (b): B wishes the court to believe that at the time in question he was
elsewhere. He must prove it.
 Before the accused can adduce evidence of his alibi he has to comply
with the procedure that has been laid down under Section 402A of the Criminal Code
Procedure. Where in the case of Dato Dr Mokhtar Hashim v PP, the Federal Court
held that in arriving the decision that the accused person bears the legal prove to proving
his alibi, it may refer to Section 402A of the Criminal Procedure Code.
 S. 402A CPP: Notice to be given of defence of alibi
o (1) Where in any criminal trial the accused seeks to put forward a defence of alibi,
evidence in support of it shall not be admitted unless the accused shall have
given notice in writing of it to the Public Prosecutor at least ten days before the
commencement of the trial.
o (2) The notice required by subsection (1) shall include particulars of the place
where the accused claims to have been at the time of the commission of the
offence with which he is charged, together with the names and addresses of any
witnesses whom he intends to call for the purpose of establishing his alibi.
 Section 402A of the CPC provides as follows:
o (1) The Court shall, at the time the accused is being charged, inform the accused
as to his right to put forward a defence of alibi.
o (2) Where the accused seeks to put forward a defence of alibi, he shall put
forward a notice of his alibi during the case management process.
o (3) Notwithstanding subsection (2), where the accused has not put forward a
notice of his alibi during the case management process, he may adduce evidence
in support of an alibi at any time during the trial subject to the following
conditions: (a) the accused has given a written notice of the alibi to the Public
Prosecutor; and (b) the Public Prosecutor is given a reasonable time to
investigate the alibi before such evidence can be adduced.
o (4) The notice required under this section shall include particulars of the place
where the accused claims to have been at the time of the commission of the
offence with which he is charged, together with the names and addresses of any
witnesses whom he intends to call for the purpose of establishing his alibi.
 PP v Lim Chen Len: court shall not admit the alibi evidence if procedures under S. 402A
CPP have not been complied with.
 It is mandatory and court cannot waive the notice.
 Effect of notice: entitle accused to raise defence of alibi
 To establish his alibi therefore, the accused must disclose where he was at the time of
the alleged offence and what he was doing.

CASE LAW

 Edwin bin Ajin v Public Prosecutor [2020] 10 MLJ 736

 Facts: appellant was charged under S. 17(a) MACC 2009 for informing that PW1 and
PW2 that they would be arrested for faking their IC and wanted RM5000 for settlement
and bribery as he was working in JPN Telupid. But later they complainants found out that
the documents were genuine. After a full trial, the Sessions court found him guilty of the
charge under s 17(a) of the Act and sentenced him under s 24 of the Act to 18 years
imprisonment and a fine of RM25,000 and in default of payment of fine, six months
imprisonment.
 Charge: Bahawa kamu pada 26.10.2010, jam lebih kurang 11.30 pagi di Hotel Paris Inn,
Lot 4B, Blok 23, Jalan Leboh 3, Bandaran Sandakan, dalam Negeri Sabah, sebagai
seorang ejen kepada Jabatan Pendaftaran Negara Telupid (JPN) berpangkat Pembantu
Pendaftaran Gred KP22 telah secara rasuah memperoleh untuk diri kamu satu suapan
iaitu wang tunai RM5,000.00 daripada Jamail bin Sungah melalui Catherine @ Sarimah
binti Enggoh sebagai dorongan bagi melakukan suatu perbuatan berhubung dengan hal
ehwal prinsipal kamu iaitu untuk kononnya tidak mengambil tindakan ke atas Jamail bin
Sungah yang dikatakan mempunyai kad pengenalan yang palsu dan James Kosou yang
dikatakan terlibat dalam pengesahan kad pengenalan palsu Jamail bin Sungah dan
dengan itu kamu telah melakukan suatu kesalahan di bawah Seskyen 17(a) Akta
Suruhanjaya Pencegahan Rasuah Malaysia 2009 dan boleh dihukum di bawah Seksyen
24 Akta yang sama.
 The appellant submitted an alibi to DPP before trial has commenced: Dimaklumkan
bahawa tertuduh akan mengemukakan pembelaan alibi dalam perbicaraan dan dengan
ini memberi notis secara bertulis bahawa pada 26/10/2010 jam lebih kurang 11.30pagi
sepertimana yang dikatakan dalam pertuduhan [*741] alternatif, tertuduh sedang
membawa keretanya dalam perjalanan dari Sandakan ke Pekan Telupid dan selepas
sampai di Telupid, Edwin Ajin telah berjumpa dengan Dr Mahen di kliniknya dan
kemudiannya ke pejabat di Pejabat Pendaftaran Negara Daerah Telupid.
 Alibi witnesses are appellant himself, a doctor whom appellant had visited on the day
and one staff from JPN
 SESSION COURT’S FINDING ON ISSUE OF ALIBI

 During the session court trial, the learned judge found that
o Alibi complies S. 402A(1) CPC but did not comply S. 402A(2) because his
whereabouts at 11. 30 am on 26th Oct 2010 was not specified
o Alibi is defective because there were discrepancies between alibi and the
evidence led during the trial namely the accused’ claim form for the month of
October 2010 (exh ‘P14’) which stated that the accused was in Sandakan from
7am–7pm on that day and his punch card which showed that the asccused was
supposedly in the office from 7.38am–5pm on the same day (exh ‘P15’).
 Accused appealed against rejection of alibi in addition to appeal against conviction and
sentence.

HIGH COURT’S FINDING ON ISSUE OF ALIBI

 Standard of proof to be discharged by the accused in establishing his alibi defence is

only on the balance of probabilities.
 Alibi notice was found to have been properly given and that the primary purpose of an
alibi notice is to alert the prosecution to the fact that an alibi might be relied upon so that
they may have the opportunity before the trial of making such investigations as they think
fit. It would have been opened for the prosecution to have called witnesses to refute the
alibi of the accused. However, no prosecution witness testified to the effect that it was in
fact possible for one to have driven from Paris Inn Hotel, Sandakan at 11.30am and
reach Klinik Dr Mahen at Telupid which was some 130km away by 12.15pm on the same
day. It was therefore difficult for this court to reconcile the fact that the accused was
supposedly to have been at Paris Inn Hotel at Sandakan at 11.30am on 26 October 2010
to commit the offence and within 45 minutes later, at DW2’s clinic at Telupid, some
130km away.
 Not necessary for party relying on alibi to be able to specify his whereabouts, suffices if
he’s able to show that near the time the crime was committed, he was at a distance from
the place it was committed.
 Discrepancies of alibi tendered by prosecution was did not diminish the alibi of the
accused and it was corroborated by DW2 (doctor’s) evidence because it was undisputed
that the appellant was at the clinic at 11.30 and 26th October 2010.
 Effect of successful alibi: acquittal
 This court had set aside the conviction and sentence by the sessions court and acquitted
and discharged the accused of the charge preferred against him.
INCONSISTENCIES

 Between alibi witness and eye witness testimony.

 Alibi witness required skepticism by investigators because they might be inconsistent in
giving statements and did not know that a crime had been committed.
 Relationship between honesty and accuracy