At paras 64 to 73, the Appeals Chamber addressed the issue whether an accused can raise on appeal a different alibi than the one raised at trial.

At trial, the Appellant had argued that his alibi placed him in Gitarama at the relevant time, an argument which was not upheld by the Trial Chamber. On appeal, the Appellant relied on documents admitted pursuant to Rule 115 of the Rules, arguing that he was in Kigali on the dates these documents were signed. The Appeals Chamber held:

66. The first issue is whether an Appellant is permitted to raise a new alibi on appeal. Pursuant to Rule 67(A)(ii)(a), the Prosecution has to be provided with notice of an alibi argument as early as practicable and prior to the commencement of trial. While Rule 67(B) states that failure to provide such notice “shall not limit the right of the accused” to rely on an alibi defence, the jurisprudence permits a Trial Chamber to consider the failure to provide the requisite notice in its assessment of the alibi.[1] The same legal principle applies in a situation where an alibi is raised for the first time on appeal. Rule 67 provides that the Defence can still raise an alibi even if no prior notice is provided; however, if for example the Appellant could have been reasonably expected to raise the new alibi during trial, the Appeals Chamber can take particular note of the failure to provide timely notice to the Prosecution in its assessment of the alibi. This does not contradict the finding of the ICTY Appeals Chamber that an “accused, generally, cannot raise a defence for the first time on appeal”.[2] The Appeals Chamber recalls

that an alibi “does not constitute a defence in its proper sense”. In general, a defence comprises grounds excluding criminal responsibility although the accused has fulfilled the legal elements of a criminal offence. An alibi, however, is nothing more than the denial of the accused’s presence during the commission of a criminal act.[3]