R v Ta Southammavong and Vilasone Sihavong
[2002] NSWSC 1277
•10 May 2002
CITATION: R v Ta Southammavong and Vilasone Sihavong [2002] NSWSC 1277 FILE NUMBER(S): SC 70085/01; 70213/01 HEARING DATE(S): 09/05/02 JUDGMENT DATE: 10 May 2002 PARTIES :
Regina
Ta Southammavong
Vilasone SihavongJUDGMENT OF: Buddin J
COUNSEL : D Frearson (Crown)
W Terracini SC (Southammavong)
J O'Loughlin (Sihavong)SOLICITORS: SE O'Connor (Crown)
Watsons (Southammavong)
Mark Klees & Associates (Sihavong)CATCHWORDS: Accused wishes to raise alibi - no notice of particulars of alibi provided within the prescribed period - whether leave of the Court is required before the evidence can be adduced - whether the expression "adduce evidence in support of alibi" extends to a situation in which the accused alone gives evidence of alibi - held leave was required - leave granted. LEGISLATION CITED: Criminal Procedure Act DECISION: Leave granted.
IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISIONBUDDIN J
10 May 2002
JUDGMENT – NOTICE OF ALIBI70085/01 – REGINA v TA SOUTHAMMAVONG
70213/01 – REGINA v VILASONE SIHAVONG
1 HIS HONOUR: When the Crown closed its case, Mr O’Loughlin who appears for the accused Sihavong has indicated that he intends calling his client to give sworn evidence. The Crown Prosecutor informed me that he has been advised by Mr O’Loughlin that his client will say that he was at home at the time of the incident which gives rise to this trial. He submitted that accordingly the leave of the Court would be required, pursuant to s 48(2) of the Criminal Procedure Act, before such evidence could be adduced, because no notice of the particulars of the accused’s alibi had been provided within the prescribed period as defined in ss (8).
2 Mr O’Loughlin contended that there was no obligation upon his client to provide the Crown with notice of the particulars of alibi in the present case as the only witness to be called in his case was to be his client. He confirmed that his client would give evidence as to his whereabouts during the evening in question, the effect of which would be to demonstrate that he could not have committed the offences with which he has been charged by reason of the fact that he was elsewhere at the relevant time or times. He submitted that the obligation to give the required notice only arose when an accused person called evidence from other persons in support of the alibi. Mr O’Loughlin informed me that no notice of alibi had been in fact furnished because of the way in which he had construed the relevant section.
3 Presumably the accused, whom I am informed was represented at the committal, was provided with information at that stage in standard form as to his obligations in relation to the requirement concerning notification of an alibi.
4 As has been observed, the provision governing this issue is to be found in s 48 of the Criminal Procedure Act, which is in the following terms:
48 Notice of alibi
(1) This section applies only to trials on indictment.
(2) An accused person may not, without the leave of the court, adduce evidence in support of an alibi unless, before the end of the prescribed period, he or she gives notice of particulars of the alibi.
(3) Without limiting subsection (2), the accused person may not, without the leave of the court, call any other person to give evidence in support of an alibi unless:
(a) the notice under that subsection includes the other person's name and address or, if the other person's name or address is not known to the accused person at the time he or she gives notice, any information in his or her possession that might be of material assistance in finding the other person, and
(b) if the other person's name or address is not included in the notice, the court is satisfied that the accused person before giving notice, and thereafter continued to take, all reasonable steps to ensure that the other person's name or address would be ascertained, and
(c) if the other person's name or address is not included in the notice, but the accused person subsequently discovers the other person's name or address or receives other information that might be of material assistance in finding the other person, he or she immediately gives notice of the name, address or other information, and
(d) if the accused person is notified by or on behalf of the Crown that the other person has not been traced by the name or address given by accused person, he or she immediately gives notice of any information that might be of material assistance in finding the other person and that is then in his or her possession or, on subsequently receiving any such information, immediately gives notice of it.
(4) The court may not refuse leave under this section if it appears to the court that, on the committal for trial of the accused person, he or she was not informed by the committing justice of the requirements of subsections (2), (3) and (7) and, for that purpose, a statement in writing by the committing justice that the accused person was informed of those requirements is evidence that the accused person was so informed.
(5) Any evidence tendered to disprove an alibi may, subject to any direction by the court, be given before or after evidence is given in support of the alibi.
(6) Any notice purporting to be given under this section on behalf of the accused person by his or her legal practitioner is, unless the contrary is proved, to be taken to have been given with the authority of the accused person.
(8) In this section:(7) A notice under this section must be given in writing to the Director of Public Prosecutions, and may be given by delivering it to the Director, by leaving it at the Director's office or by sending it in a letter addressed to the Director at the Director's office.
evidence in support of an alibi means evidence tending to show that, by reason of the presence of the accused person at a particular place or in a particular area at a particular time, the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.
prescribed period means the period commencing at the time of the accused person's committal for trial and ending 21 days before the trial is listed for hearing.
5 As I have said, Mr O’Loughlin’s submission in essence is that the expression “adduce evidence in support of an alibi” in ss (2) refers only to a situation in which witnesses other than the accused also give evidence in support of his or her evidence as to alibi. Mr O’Loughlin was not able to point to any authority which might assist his submission.
6 In my view, such a construction faces a number of obstacles. First, the expression “evidence in support of an alibi” is defined in ss (8). On its face that definition demonstrates that the restricted way in which Mr O’Loughlin construes the expression is without foundation. Secondly, ss (3) makes it clear that an additional requirement, in terms of what particulars must be notified, is cast upon an accused person who wishes to call any other person to give evidence in support of an alibi. That it is an additional requirement is clear from the introductory words to ss (3) viz “without limiting sub-section 2”.
7 Accordingly when ss (2) is read in conjunction with ss (3) as it must, there is in my view, no basis for placing the restriction upon the ambit of ss (2) for which Mr O’Loughlin contends. Indeed it is difficult to see if Mr O’Loughlin’s view were to prevail, what purpose ss (3) was intended to serve.
8 Finally, the construction for which Mr O’Loughlin contends would, if upheld, be inconsistent with what I discern to be the legislative purpose which underpins the provision under consideration. In my view, it is clearly designed to give the prosecuting authorities adequate time within which to investigate an alibi raised on behalf of the accused person before trial. It is difficult to see why an investigation, designed to test the substance of an alibi, should be artificially restricted in the manner which Mr O’Loughlin suggests.
9 In fairness to Mr O’Loughlin it must be said that by the end of the debate, he had conceded the difficulties that stood in his way.
10 At that point he sought leave to adduce the foreshadowed evidence. I readily acceded to that application, although I permitted the Crown a short period of time within which to make those investigations which it saw fit.
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