If you’ve been accused of committing a criminal offence in Queensland, nothing says “I didn’t do it” quite so comprehensively as evidence which establishes categorically that you weren’t at the relevant place at the relevant time.
This is called an “alibi”, which is a term you’ve probably heard before.
Some people are surprised to learn, however, that there are some rules around how to raise a defence in the form of an alibi including how to do it and when you need to do it by.
So let’s take a look at how alibis work in Queensland.
What is an Alibi?
An alibi is evidence that confirms there is no chance you could have committed the crime in question.
Typically this will be because the evidence establishes that you were somewhere else at the time the alleged crime was committed.
So let’s say your alibi evidence is from another person. The obvious idea is that if they can categorically state that you were in Brisbane on 7pm on Sunday, and the alleged crime was committed in Ipswich at 7:05pm on Sunday, then the chances you committed the alleged crime are extremely low.
A Note – “alibi” is not strictly speaking the person who is giving the evidence, but rather the evidence itself when put together establishes your alternative whereabouts. However, commonly a person who gives evidence that you were somewhere else might be called “an alibi”.
If you are raising a person to give evidence of alibi, one area to be particularly careful about is the nature of evidence they can actually give.
Specifically, the time and place of an alleged crime are not always 100% known. It might be, for example, that an alleged assault occurred sometime between midnight and 6am.
If a person can only give evidence of where you were at 10pm the preceding night or 7am the following morning, their evidence is not as compelling as it could be.
So you can’t assume that a truthful witness will always be sufficient by themselves to have the police discontinue charges, or for your defence to succeed.
Alibi As Combined Evidence
Because of this complexity, sometimes it might be necessary to combine the evidence of alibi from different sources.
Let’s say there is an alleged crime like the one above, that took place in Brisbane between midnight and 6am. Perhaps your alibi can state with certainty that you were on the Gold Coast at 10pm, but then your witness didn’t see you again until 7am the following morning.
Maybe you might have other evidence to show that you remained on the Gold Coast in the intervening period – phone records, secondary witnesses, CCTV footage, credit card statements or similar might all be able to be pieced together to establish your whereabouts in the time between your direct human evidence.
Often, the more evidence there is of your location, being other than where the alleged crime was committed at the relevant time/s, the better.
Do you Really need to “Prove” You are Innocent?
The idea of alibi is not one which imposes on you an obligation to prove your innocence.
It’s important to remember the idea of the “burden of proof” which remains with the Prosecution to establish the alleged crime.
However, if you do intend to run a positive defence of alibi, then there are a few rules to follow to avoid potential negative consequences.
If you have Alibi Evidence, when Do you Need to Mention It to Police?
If you intend to raise an alibi defence, you need to give notice to prosecution within 14 days after your matter is committed for trial.
How do you Give Notice of Having an Alibi?
You give notice by completing, with your criminal lawyer’s assistance, the prescribed form (Form 48 Notice of Alibi).
The notice requires you to set out the details of the evidence you intend to raise in support of your claim of alibi, including the details of any persons that you intend to call to give that evidence.
This notice, and its timing, allow the prosecution sufficient time and information to investigate the claim of alibi and take appropriate steps in response to it.
Strictly speaking you don’t need to give this notice in matters that will be tried in the Magistrates’ Court – however it is not a bad idea to do so anyway.
What if You Don’t Give Notice?
Failing to give the required notice in the required time runs certain risks that are best to avoid.
There is a chance that late notice of alibi evidence will delay your trial, which most people would prefer to avoid.
Worse than that, however, is the possibility that the Court will refuse to allow the evidence to be admitted in support of your alibi. Given the importance and potential consequences of alibi evidence, this isn’t the kind of risk that most people want to run.
Are you Claiming Alibi?
Properly claiming an alibi in response to an alleged crime can “make or break” the success of your defence.
As a result, it’s critically important to get advice and input from experienced criminal lawyers to gather the relevant evidence, ask the right questions, and give appropriate notice to the prosecution of your intention to raise alibi.