The scourge of procedural errors

Much has been written about how the prosecution seems to have shot itself in the foot in the case of disgraced former European Commissioner John Dalli who finally appeared in court on bribery charges, only for questions to be raised about whether he enjoyed some form of immunity.

Yet that is only the latest example – perhaps the most striking one because it has all the features of a cause célèbre – of a deeper and more pernicious malaise within Malta’s justice system: that of procedural errors that often leave the presiding judge or magistrate with little choice but to dismiss the case, sometimes after a case has been heard in dribs and drabs over a period of years.

The general public justifiably begins to feel that in our system of law, form triumphs over substance, and that perhaps Mr Bumble was right after all when he said that “the law is an ass”.

Qawra accident

Take the case of the director of a lighting company convicted five years ago over an accident that took place at an open-air disco in Qawra in 2008. He will now have his case heard afresh after the original judgment was quashed over a procedural error. A procedural error that occurred in 2010, when the court had failed to ask the accused whether he objected to having his case dealt with summarily by a magistrate instead of having the case sent to the Criminal Court to proceed by way of trial by jury.

Although the prosecution argued that the proceedings had continued before the Court of Magistrates with the defence “tacitly” accepting to have the case heard before a magistrate’s court, this did not stop that same defence team from filing an appeal further down the line, arguing that the proceedings were null and void on account of the earlier procedural error.

The Court of Criminal Appeal, per Mr Justice Giovanni Grixti, rejected the Attorney General’s arguments, observing that such “an essential formality” could not be “dispensed with”. The appellate court further observed that the case had subsequently been handled by different magistrates, who had expected that formality to have been adhered to.

As a result, the judge quashed the judgment and sent the records of the case back to the magistrates’ court to hear the case afresh. To repeat: the accident took place in 2008, the procedural error in 2010, the case was thrown out in 2021.

Twelve years plus down the line and the case has to be heard afresh – this is not only an inexcusable waste of time and resources but, more crucially, it is unfair both to the victims of the accident and to the accused (although admittedly the latter’s lawyers are also to blame for not having pointed out the omission earlier).

Acquitted twice

Or take the case of Andre Falzon who in 2013 was found in possession of 57 ecstasy pills during a party.

He was arraigned in September 2013 and following advice from his legal aid lawyer admitted all charges and was sentenced to three years in prison plus a €1,000 fine.

In November 2015, Madame Justice Edwina Grima, sitting in the Court of Criminal Appeal, noted that the man’s guilty plea conflicted with the evidence and therefore his admission was related to facts which he had not committed, “at least” not on the date indicated on the charge sheet.

The police then proceeded to correct their mistake and to charge Falzon again in 2016 by making some minor changes to the charges. However, Falzon’s defence team then argued that one cannot be tried or punished twice for an offence for which he or she had already been acquitted or convicted.

The prosecution argued that the new charges were different from those of the first case but in February (2021) Magistrate Natasha Galea Sciberras – rightly or wrongly, that is for legal wizards to determine – threw the case out with some acerbic words directed towards the police prosecuting officer.

The far-reaching consequences of procedural errors – Alfred Degiorgio

Procedural errors and time lapses are often interlinked, as in the case of Alfred Degiorgio, the man who stands accused of Daphne Caruana Galizia’s assassination. He was awarded more than €7,000 in damages by a court of constitutional jurisdiction because Degiorgio’s right to trial within a reasonable time had been breached.

The case is related to an incident that occurred in October 2000 where a group of men held up a security van as it left HSBC bank and stole €2 million in cash. The entire proceedings were so riddled with procedural errors that by December 2018, a year after Caruana Galizia had been murdered, the Court of Criminal Appeal acquitted Alfred Degiorgio in the hold-up case due to these procedural errors.

Madame Justice Edwina Grima not only recounted at length the issues surrounding the fingerprints as evidence but went on to highlight a fundamental procedural error that appeared to have escaped the attention of the first court as well as of the parties involved.

In the original charges, the prosecution had issued the charge of handling stolen property solely against Mario Cutajar. However, when referring the records back to the Court of Magistrates for the case to be tried summarily, the Attorney General had attributed this offence to all three co-accused – in effect adding the charge of handling stolen property to two of the accused when the committal proceedings had not envisaged that charge against them.

Consequently, Degiorgio could never have been found guilty of an offence he had not been originally charged with and in respect of which no compilation of evidence had taken place, the Court of Criminal Appeal ruled.

Then in July 2019, Alfred Degiorgio filed a case against the police before the First Hall of the Civil Court in its constitutional jurisdiction, claiming that his right to a fair hearing within a reasonable time had been breached. Judge Toni Abela found that there had, indeed, been a violation of the reasonable time requirement – an issue which was beyond the pale of controversy at this point – and awarded Degiorgio €7,000 in damages at a 5% interest rate from 2010 onwards.

Persistent problem

It would be unfair and unrealistic to expect change to happen overnight and although there have been some significant reforms within Malta’s justice system, the above examples (which are but a very small sample) continue to disclose a system that is both under-resourced and overwhelmed.

Justice Minister Edward Zammit Lewis can boast all he likes about the government’s latest budget plan that allocated 45% more funding towards upgrading and modernising the judicial institutions and these might be much needed structural upgrades.

However, legal experts suggest that unless laws are amended to ensure that mere technicalities, which do not impinge upon the substantive fairness and justice of a case, are not abused to torpedo court cases at the eleventh hour, then the system will continue to throw up these kinds of procedural aberrations, and the problem will remain.