R v Ta Southammavong and Vilasone Sihavong [2002] NSWSC 1277

New South Wales Supreme Court

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

Regina PARTIES : Ta Southammavong Vilasone Sihavong JUDGMENT OF : Buddin J

D Frearson (Crown) COUNSEL : W Terracini SC (Southammavong) J O'Loughlin (Sihavong) SE O'Connor (Crown) SOLICITORS : 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 DIVISION

BUDDIN J

10 May 2002

70085/01 – REGINA v TA SOUTHAMMAVONG 70213/01 – REGINA v VILASONE SIHAVONG

JUDGMENT – NOTICE OF ALIBI 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.