Wan Aziz Bin Wan Omar v Pendakwa Raya

Case Significance

Illustrates the requirement under section 402A of the Criminal Procedure Code to give advance notice of an alibi, and the consequence that an unnoticed and rejected alibi to a charge under section 376(3) of the Penal Code leaves an accused with nothing more than a bare denial.

This High Court decision at Kota Bharu concerns consolidated criminal appeals against convictions and sentences imposed by the Sessions Court for offences of rape. The appellant had been convicted on amended charges under seksyen 376(3) Kanun Keseksaan (section 376(3) of the Penal Code), which addresses rape committed where the offender stands in a relationship to the complainant such that a marriage between them would not be permitted under law, religion, custom or usage. The complainant is identified only by her role, and no identifying detail is reproduced here. The particular point emphasised in this appeal concerns the appellant's defence of alibi and the operation of seksyen 402A Kanun Tatacara Jenayah (section 402A of the Criminal Procedure Code), which requires an accused who intends to rely on an alibi to give notice of it to the prosecution before the trial. The court noted that no alibi notice had been given by the appellant to the prosecution, either at the case-management stage or before he gave his evidence at the trial in the Sessions Court, with the consequence that, once the alibi defence failed or was not accepted, there was no alternative defence on which the appellant could fall back and his evidence amounted to a bare denial. Reviewing the grounds of the Sessions Court judge, the notes of proceedings and the submissions, the High Court was satisfied that the conviction was safe and that the failure to give the statutory alibi notice was fatal to the belated alibi. The court dismissed the appeals and affirmed the decision of the Sessions Court. The judgment is a useful illustration of the requirement to give advance notice of an alibi under section 402A and of the consequence that an unnoticed and rejected alibi leaves an accused with nothing more than a bare denial. The court's reasoning reinforces the purpose of the notice requirement, which is to prevent an accused from ambushing the prosecution with a late alibi that cannot be investigated, and to ensure that any genuine alibi is tested rather than sprung at trial. Where the requirement is not met and the alibi is rejected, the accused is left, as here, with a bare denial that cannot displace the prosecution's proven case.