Alibi - Section 103 of the Evidence Act 1950

S. 103 EA

Not all defences are statutory.

Alibi is not statutory, s.105 doesn’t apply.

It is governed by s. 103 of EA

Alibi: assertion made by the Accused in a criminal case or by a defendant in a civil case that he was elsewhere at or about the time of the offence/incident.

S. 3 to interpret s. 103

- logically, it would mean legal burden of proof on a balance of probabilities

However, you can still raise a reasonable doubt to acquit the Accused.

S. 11 EA – relevancy

S. 402A CPC – “establishing his alibi”

1. Dato Mokthar Hashim v PP [1983] 2 MLJ 232

Legal burden should be imposed on the accused person. However, in this case, the Federal Court referred to s. 402A of the Criminal Procedure Code which states “for the purpose of establishing his alibi”.

2. Yau Heng Fang v PP

The judge has misdirected himself in the previous case… in all criminal trials, the accused is deemed innocent until proven guilty by the prosecution. There is no burden placed on the accused to prove his innocence… defences such as alibi placed merely an evidential burden of introducing some evidence enough to create reasonable doubt in the minds of the jury. In other words, cannot look at s. 402 CPC, it is only procedure, should have looked at EA 1950.

3. Illian v PP

- Evidential burden was imposed

4. Arumugam Mothiyah v PP

The appellant brought to court a defence of alibi at a wedding. This was further supported by 4 other defence witnesses. The Sessions Court rejected the alibi because the accused could not name the bride and the bridegroom. The High Court however overturned the decision stating that the judge in the Sessions Court had failed to consider the fact that a wedding had in fact taken place on that time and date. [following the judgement in Illian v PP]

5. Empati Mat v PP

HC : legal burden of proof for alibi

COA agreed with the learned trial judge that the evidence did not have the effect of proving, supporting, corroborating or establishing in any way the alibi of the accused. The Court further referred to Dato’ Mokthar bin Hasim v PP and held that the accused only needs to establish his alibi on a balance of probabilities. The Court further stated that the accused had failed to cast a reasonable doubt. *This judgment is worded in a very confusing manner although the judge intended the correct position of the law*

6. Rosli Md Idrus v PP

- followed Dato Mokthar bin Hashim and also Empati Mat v PP where alibi has to be proved on the balance of probabilities.

7. Mohamad Najidi Abdul Halim v PP [2011] – This is a High Court case, on appeal from the Magistrate’s Court. The issue of burden of proof arises in this case. The Court referred to s.173(m)(i) to (iii) of the CPC.

(i) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it and the Court shall pass sentence according to law

(iii) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal.

This section means that it is the duty of the prosecution to prove the case beyond reasonable doubt. Even if the accused fails to establish a defence but manages to raise a reasonable doubt, he can still obtain an acquittal.

The Court held that the lower court had made a misdirection in law when the trial Magistrate concluded that the accused had failed to prove alibi on the balance of probabilities and raise a reasonable doubt. The trial Magistrate had considered both balance of probabilities and raising a reasonable doubt to be one and the same thing, when in fact they are of two different levels.

Since it is a High Court, s. 182A of the CPC which is similar to s. 173(m) is referred to. The Court set aside the appellants conviction as the trial Magistrate has applied a higher burden on the defence of alibi, resulting in the miscarriage of justice.

8. Magendran Mohan v PP [2011] FC

One of the defences raised in this case against the charge of murder is alibi. FC held that only casting a doubt is sufficient to get an acquittal.