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46 support of his alibi. The question is whether the words seeks to put forward in section 402A(1) include the case where the accused himself gives evidence. An accused who gives evidence himself clearly does so because he is seeking to put forward evidence tending to show that he was elsewhere at a particular time. And that evidence is the evidence in support referred to in the sub-section. We are therefore of the view that the words of section 402A(1) given their natural meaning include the case where the accused alone is to testify that he was elsewhere at the material time. Thus - Sub-section (1) standing by itself clearly means that notice must be given in all cases of an alibi defence otherwise the evidence will be excluded. No distinction is made between an alibi defence of the accused alone and an alibi defence supported by witnesses. Sub-section (2) sets out the particulars required in such a notice which is in two parts: (a) Particulars of the place where the accused claims to have been at the time of the commission of the offence with which he is charged; and (b) The names and addresses of any witnesses whom he intends to call for the purpose of establishing his alibi. If the accused does not intend to call any witnesses, then he need only comply with part (a) of the notice. The primary purpose of an alibi notice is to alert the prosecution to the fact that an alibi might be relied upon so that they may have the opportunity before the trial of making such investigations as they think fit. It may well be that the alibi is in fact true in which event the prosecution will either withdraw the charge or offer no evidence in the case. The defence of alibi is a legitimate defence and in fact is often the only evidence of an innocent man. The difficulty, it seems to us, is when and how to exclude an alibi defence for non-compliance with section 402A. First, a distinction should be drawn between a bare denial and an alibi defence. Evidence of bare denial is in any case always admissible. In order to distinguish one from the other, the Court must know the nature of the evidence. As was said in Ku Lip See v. P.P. (supra) at p. 196 – ‘If a trial Court having considered the evidence put forward by the defence, holds that such evidence amounts to evidence in support of an alibi for which no notice under section 402A Criminal Procedure Code has been given, then he has no discretion in the matter but to exclude such evidence.’ It follows that, initially, the Court cannot prevent an accused person from giving evidence. Having heard the evidence, then the trial Court must decide the nature of the evidence. If it is only evidence of a bare denial, the evidence stays. If it is evidence in support of an alibi and no notice under section 402A has been given, then he must exclude that part of the evidence from his consideration of the defence evidence.”
47 [94] The sum total of it all would be this. That since there was no written notice in regard to the alibi defence within the prescribed time as set out in section 402A of the CPC, the learned JC was right when his Lordship held that (see pages 36 to 37 of the appeal record at Jilid 1): (i) the defence did not comply with the provisions of section 402A of the CPC when the defence failed to give written notice to the prosecution pertaining to the alibi defence; (ii) the evidence of Uda (SD3) was excluded since it was evidence in support of the appellant’s alibi defence; (iii) the evidence of the appellant pertaining to his meeting with Uda (SD3) at the Kuala Pilah Bazaar Ramadan and whatever connected therewith must be excluded; and (iv) the evidence of the appellant that he left his Styer pistol (exhibit “P23”) with the deceased in his GEN-2 motorcar while he went to the Kuala Pilah Bazaar Ramadan and met Uda (SD3) were also excluded because it was linked to the appellant’s alibi defence. [95] Applying Vasan Singh’s case, the learned JC was right in not preventing the appellant from giving evidence. Having heard the evidence of the appellant, the learned JC “must decide the nature of the evidence”. Since the evidence of the appellant hinged on alibi defence
Page 1 and 2: 1 DALAM MAHKAMAH RAYUAN MALAYSIA (B
Page 3 and 4: 3 iaitu sepucuk pistol telah menyeb
Page 5 and 6: 5 10.10.2007. Exhibit “P9” was
Page 7 and 8: 7 robbery and he circulated that in
Page 9 and 10: 9 downwards. When the driver of the
Page 11 and 12: 11 pistol which was located underne
Page 13 and 14: 13 (e) one red and blue coloured ba
Page 15 and 16: 15 motorcar was stopped, SP15 told
Page 17 and 18: 17 [32] The appellant testified tha
Page 19 and 20: 19 said, “Haizat, tolong aku ni p
Page 21 and 22: 21 S : Kamu tidak pernah berjumpa O
Page 23 and 24: 23 irresistible inference that the
Page 25 and 26: 25 advice of Suffian LP in Jayarama
Page 27 and 28: 27 driver’s seat of the Proton GE
Page 29 and 30: 29 CPC for the government chemist t
Page 31 and 32: 31 GEN-2 motorcar had just been use
Page 33 and 34: 33 “Finding dalam P6 ini adalah d
Page 35 and 36: 35 Pilah-Seremban road some 15 kilo
Page 37 and 38: 37 [66] Learned defence counsel was
Page 39 and 40: 39 [74] The strength of the prosecu
Page 41 and 42: 41 these assumptions are mere specu
Page 43 and 44: 43 [86] It was also submitted by le
Page 45: 45 [91] So, at least ten (10) days
Page 49 and 50: 49 ini telahpun disangkal seawal ya
Page 51 and 52: 51 findings of fact arrived at by t
Page 53 and 54: Rebuttal evidence 53 [108] The appe
Page 55 and 56: 55 legal basis for the reception of
Page 57 and 58: 57 from the same Styer pistol (exhi
Page 59 and 60: Counsel 59 (1) For the Appellant Ac

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