THE INCOMPATIBILITY OF THE DEFENCE OF PROVOCATION AND ALIBI: A CASE REVIEW OF THE STATE V. OGUNBOYO RICHARD (UNREPORTED) CHARGE NO HAD/80C/2017

Abstract

Provocation and alibi are two of the defences available to a defendant under the English Law albeit they operate at a cross road in that the availability of one depicts the non legal availability of the other to a defendant facing allegation of crime. By its intrinsic nature, a defendant who relies on the defence of provocation has explicitly admitted both the mens rea and actus reus of the offence alleged but denied malice aforethought. In contradistinction however, alibi is an outright defence of non-participation in the offence on the ground that the defendant was elsewhere when the offence took place. The jurisprudential rational behind the defence of alibi is the impossibility of simultaneous physical presence of the defendant at two different locations. It is noteworthy to stress that the defence of alibi enjoys qualified application while considering parties to offences as a defendant need not be physically present to be culpable where he has either acted as accessory before the fact or accessory after the fact in which case, his physical presence at the scene of the alleged offence is of no moment before attracting criminal responsibility. This study examined the two irreconcilable defences of provocation and alibi through a case review with intent to unveiling whether or not a defendant can be availed of the defence of provocation in the same case where the defence of alibi earlier set up by him fails. This study however, concluded that both alibi and provocation cannot exonerate or sustain defences for the defendant at the same time because they are contrasting defences that cannot go together. The study also concluded that in applying the ingredients of the defence to the fact in issues, none of the ingredient must be left in isolation or wrongly applied to justify a defence for the defendant.