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An alibi is an evidence or defence that shows the defendant was at the other place and

not be at the crime scene at the time crime was happened in the criminal proceeding. It is the
obligation of the accused person to prove that he has the alibi that showing he was not there
on the crime scene on the day that the crime instigated 1. By referring to the Oxford English
Dictionary alibi is defined as elsewhere or the plea of having been elsewhere when any
alleged act took place. This can be seen in the case of Ku Lip See v PP2, 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. Where in the case of Yau Heng Fang
v PP3, it was explained that defences such as alibi placed merely an evidential burden
introducing some evidence enough to create a reasonable doubt in the minds of the jury.
By the provision that lies under Section 103 of the Evidence Act 1950, it was stated
that the burden of proof in a fact lies on the person who wishes for the court to believe in
what he wishes the court to believe, unless the law said otherwise whereby the proof of that
fact shall lie on any particular person. On the other hand, alibi has been further elaborated in
Illustration (b) of Section 103. It was stated that B wishes the court to believe that at the
time in question he was elsewhere. He must prove it. The burden of proof in a defence of
alibi is on the person who relies on such defence. Alibi may not be found in any statutory
laws that governs the used of alibi, but may applied according to the Common Law. This
reasonably make him impossible to plead guilty.
In order to make the evidence is admissible, it must be relevant and according to the
procedure that has been stated under the law. As when the accused stating that he is not at the
crime scene when the crime is committed it but he had been the suspect of the case, this
would amount to similar facts of relevancy. Where the mode of proof must be satisfied as to
provide that oral evidence should be direct. As stated under the Section 11 (b) of the Evidence
Act 1950, facts that are not relevant may become relevant if in the connection of the
1 Learning Evidence CLP Series, Raja Singham, 2012, 1 st Edn, Brickfields Asia
College, 1st Print Sdn Bhd
2 [1982] 1 MLJ 194
3 [1985] 2 MLJ 335

statement with other facts that they make the existence or non-existence of any fact in issue.
It is further explained in the Illustration (b) of Section 11 which, The question is whether A
committed a crime. The circumstances are such that the crime must have been committed
either by A, B, C or D. every fact which shows that the crime could have been committed by
no one else and that it was not committed by either B, C or D is relevant. Although, the
courts have expressed some hesitancy in admit the evidence which is similar facts, it is rely
on the court discretion to accept it or not. Here the issue that arose is whether the word prove
imposes the legal burden of proof due to the fact he must prove it. As in the case of Jayasena
v R4, it was explained that the word prove in the Evidence Act defined as legal burden of
proof. Which in this case, the court rejected the term evidential burden of proof and said
that it was a contradiction in the terms. The Privy Council said that the definition of proved
in Section 3 of the Evidence Act referred as a legal burden which means that the accused has
a legal burden of proof to discharge it is on the balance of probabilities.
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 5, 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.
The precondition for the admission of the alibi defence, the accused have to give
notice in writing to the Public Prosecutor at least 10 days before the commencement of the
trial as to mention his intention to raise the defence of alibi as well as the particulars of his
alibi. Furthermore, Section 402A (2) of the Code stipulates that the notice must be explained
where he have been at the time of the commission of the offence that has been alleged. He
must also state the name of witness who can be ascertain that he was not at the crime scene
and to be called for establishing his alibi. This has been supported with the case of
Rangapula & Anor v Public Prosecutor 6. It was held that, a trial magistrate had no discretion
to admit any evidence in support of a defence of alibi where the provision of Section 402A of
the Criminal Procedure Code have not been complied with. Additionally, if the accused failed
to fulfil the requirement of giving written notice at least 10 days before the commencement of
4 [1970] AC 618
5 [1983] 2 MLJ 232
6 [1982] 1 MLJ 91

the trial, the courts have no discretion in admitting the matter as stated in the case of PP v
Lim Chen Len7.
However, in the case of PP v Chidambaran & Anor, it was held that, alibi evidence should be
scrutinised very carefully, for it is easy to set up an alibi and not always easy to prove it, and
it must be definitely proved in order to suffice for the rebuttal of a case made out by the
prosecution. Therefore, it is the discretion of the judge whether to admitting the alibi as a
good defence or otherwise by determining the truth of the evidence that he assert is true. As
held in the case of Arumugam Mothiyah v PP8, which in his defence, the appellant said that
he was attended a wedding and was not in the crime scene. He later brought four witnesses in
order to support his alibi. The Supreme Court however rejected the alibi on the ground that
the appellant and his witnesses cannot give the name of the bride and the groom. It is
necessary to examine the nature of the defence. Thus in order to get an acquittal, the accused
may be required to discharge only on evidential burden.

7 [1981] 2 MLJ 41
8 [1995] 1 CLJ 58