(e)

The issue is whether the testimony given by Oren in his defence is a defence of an

alibi or a bare denial.

Alibi is a defence raised by the accused stating that he was at another place at the time
when the offence alleged to have been committed. The accused must disclosed where he was
at the time of the alleged offence and what he was doing. 1 Bare denial is a mere statement
claiming that he was not there or that he did not do it. The defence of an alibi must comply
with section 402A of Criminal Procedure Code (CPC) whereby the prosecution may object to
defence of alibi if the accused failed to put forward a notice of his alibi. It is to give
reasonable time to the prosecution to investigate his alibi before the evidence is adduced
before the court. In Rangapula & Anor v PP, it was stated that non-compliance with section
402A of CPC will render evidence in support of an alibi is inadmissible. 2 If the defence is just
a mere bare denial, then there is no need to comply with section 402A of CPC.3
In the current situation, the testimony given by Oren in his defence amount to a defence of an
alibi as he stated at the time the offence claimed to have been committed, he was at that time
having sex with Minah. Since it was a defence of alibi, the prosecution may object to his
defence for non-compliance with section 402A of CPC if he failed to serve notice for his
defence to call witness which can act as alibi. However, prior to the defence stage, during the
prosecution stage, Oren had already serve his notice for defence of alibi under section 402A
of CPC, stating in his notice the date, time, name of witnesses, place and what he was doing
at the time the offence against Apek had been committed. Therefore, although the testimony
did not specify the place he was having sex with Minah, since he had already stated it in the
notice he served, he had already complied with the requirement under section 402A of CPC.
Even though the notice was served during the prosecution stage and not during case
management4, he complied with conditions under section 402A(3) of CPC whereby written
notice to PP had been given and a reasonable time was given to PP to investigate the alibi.

1 Chong Fook, Lee., Che Audah Hassan. (2011). The Process of Criminal Justice (Part II). Lexis
Nexis. Pg. 215
2 Ibid. Pg. 221.
3 Ibid. Pg. 219
4 Criminal Procedure Code. Section 402A(2)

In conclusion, DPP Constar cannot object the testimony given by Oren in his defence since
he had already complied with serving notice for alibi under section 402A of CPC.