Alibi
Alibi is a defence raised by the accused as proof that they could not have committed the crime because
they were in some other place at the time the alleged offence was committed. it cannotserve as a
defence to an allegation of conspiracy, as conspiracy is not constrainable to the presenceof the actual
perpetuator of the crime but deals broadly with ‘knowledge’, ‘common purpose’ and‘facilitation’ of
criminal conduct
Alibi as a defence falls under a general principle of Res Gastea that is contradictory or inconsistent
infacts Its it prudent to note that for one to benefit from the defence of alibi, they should do so at
theearliest opportunity.
In Ochemaje v State (2008) 15 NWLR [Pt. 1109] 57, the Supreme Court held that,“..To be entitled to its
beneficent effect; such an accused must raise it at the earliest opportunity,which would, preferably be in
his extra-judicial statement. This is to offer the police an opportunityeither to confirm or confute its
availability to the accused person… above all, the said defence mustbe unequivocal as to the particulars
of the accused person’s whereabouts and those present withhim… It is only where such an accused
person raised the defence at the earliest opportunity withoutany ambiguity that a burden is cast on the
prosecution to investigate it and disprove same.
Section 101(1) of the Evidence Act provides that whoever desires any court to give judgement as to any
legal right or liability dependant on the existence of facts which he or she asserts must prove that those
facts exist.
Additionally, subsection 2 affirms that when a person is bound to prove the existence of any fact, it is
said that the burden of proof lies on that person. As to the question of whether the burden of proof ever
shifts to the accused when he/she raises the defence of alibi is a matter of discussion.
In Uganda v Kasya, it was held that an accused who puts up the defence of alibi does not
assume the burden of proving the defence. The burden rests on the prosecution to disprove or
destroy the alibi. Court also tackled the question of circumstantial evidence and said that where
that evidence does not point to the guilt of the accused and where there is other evidence
which may rebut the inferences drawn from circumstantial evidence, then that circumstantial
evidence cannot be relied on to convict the accused. Court looked at the inconsistencies in the
prosecution case and said that where such inconsistencies are so grave i.e. if they go to the root
of the offence, then that evidence will not be adduced.
In Uganda v Sabuni, The accused was indicted with robbery. He claimed that at the relevant
time he was out of the country thereby putting up the defence of alibi. He was convicted on the
grounds inter alia that he had failed to prove his alibi and on appeal, it was held that it is
established law in Uganda that when an accused person sets up the defence of alibi, the
accused does not assume the responsibility of proving the alibi. That the prosecution must
instead negative the alibi by evidence adduced before the defence is put forward or by calling
witnesses to give evidence in rebuttal. Court went on to say that all evidence must be
considered as a whole and if some doubt is thrown upon the prosecution case or if they fail to
negative the alibi, then they will not have proved their case beyond reasonable doubt and the
accuse will be entitled to an acquittal.
In Uganda v Serapio Tinkamalire, the accused was indicted with kidnapping with intent to
murder. He put up the defence of alibi. Court held that the accused has no burden to establish
his alibi. The duty is on the prosecution to disprove it and the duty of the court is to direct its
mind to the alibi set up by the accused and it is only when the court comes to the conclusion
that the alibi is unsound that the court will be entitled to reject it.
Meaning of Identification
Identity of a thing or person is an expression of opinion that that thing or person resembles
another thing or person so much so that it is likely to be the same thing or person. It is a
comparison that looks for resemblances.
In criminal law, the identity of an accused must be established and that person has to be shown
to be the one who committed the particular offence. Therefore, there has to be a process
through which the accused is connected to the crime and this process is referred to as
identification.
Likewise in civil cases, identity is important. Any person who wishes to institute a case against
another must clearly describe the identity of that other person and where the person is found.
The process of identification in criminal law usually seeks to ensure the following:
1. The person identifying must have seen or observed the accused.
2. The identifying person must have had a settled impression in his/her mind at the
relevant time i.e. he or she must not have been in panic.
3. The mental picture that a person has at the time of identification must be the same as
that he or she had when he or she first saw the accused. It must not be tainted by other
factors or opinions of third parties.
4. The time taken in identifying the accused person is important. If for example it is a
short period such as a few seconds, it may not be enough for a person to notice the
accused.
5. There must be an opportunity allowing for proper identification
Consideration must also be given to those opportunities allowing for proper identification. This
is generally referred to as the conditions and circumstances ideal for identification such as time
taken, amount of light, distance between the identifier and the accused person and whether
the suspect was known to the identifier before or is a complete stranger.
PREVIOUS CONDUCT
Therefore, under Section 7(2), relevant conduct may either be previous or subsequent. Previous
conduct may be admissible for reasons such as;
1. to prove a system or course of conduct i.e. a state of affairs
2. to rebut a Suggestion on the part of an accused that what happened was a mistake or
an accident, or
3. to prove knowledge by the accused of some fact.
Hence, evidence of conduct may be useful in proving a motive or intention, preparation or
opportunity and could include previous attempts to bring about the event. It could also include
declarations of intent or threats and it may be used to refer to a system or state of things.
In the case of R v Ball (1911) AC 47, the accused, a brother and sister were charged under the
Punishment of Incest Act for having carnal knowledge of each other. Evidence of previous acts
of the two accused was tendered with a view of showing that there were sexual relations
between them. It was alleged that the male accused bought a house in which he took the
female accused as his wife and they lived there as husband and wife for sixteen months.
Another piece of evidence was that the house had only one furnished bedroom with one
double bed which showed signs of occupancy and it was alleged that the two shared the bed.
After the sixteen months, the female accused gave birth to a child and registered the birth
describing herself as the mother and the male accused as the father. They were convicted on
this evidence and they appealed.
On first appeal, the conviction was quashed on the ground that the evidence objected to was
not, in the first instance admissible as nothing had occurred in the conduct of their defence to
render it admissible as a rebuttal.
The issue on second appeal was whether the previous acts of the accused were admissible.
The court held that evidence of previous conduct would be admissible to show the relationship
of two parties and to show intent, guilt, knowledge, design, system or to rebut the defences of
accident, mistake or reasonable honest mistake. That the evidence objected to in this case was
admissible as its object was to establish that the accused had a guilty passion towards each
other and to rebut the defence of innocent association of brother and sister.
Subsequent conduct on the other hand refers to the way a person behaved soon after the
transaction. It may be used to implicate a person as evidence of the state of mind at the time
when he committed the act in question after such act has been proved.
Subsequent conduct such as silence of an accused or the giving false statements or evasive
answers may be used as conduct to implicate an accused.
Subsequent conduct is very important especially in rape and allied offences and in such cases,
the conduct of the complainant will also come under scrutiny.
In the case of Lobo v R (1926) KLR 55, the court held that complaints by victims of rape and
allied offences if made at the first reasonable opportunity after the offence are admissible the
complaint being indicative of the complainants state of mind although not as establishing the
acts complained of.
