Court’s copy and paste raises questions about accused’s conviction

An analysis of a judgment delivered by Magistrate Joseph Mifsud against Alfred Attard, who was sentenced to six months imprisonment after he was found guilty of harassment as well as working as a private investigator without a licence, found that the lifting of some text may have contributed to the accused possibly being found guilty of the wrong charges, legal experts consulted by The Shift confirmed.

The case relates to Attard having been engaged by freelance journalist Victor Paul Borg to act as a private investigator when Attard did not have a licence – a transaction that landed both individuals in court but whose cases were heard separately and were presided by two different magistrates.

The possible mistake in Attard’s case was made because Magistrate Mifsud appears to have simply copied and pasted, word for word, two pages worth of analysis from the judgment by Magistrate Donatella Frendo Dimech in the case against Borg – who was found guilty of having engaged a private investigator without a licence and for which Borg was fined €150. Borg has appealed the sentence.

In the case heard before the Court in Gozo, Attard was charged with two offences. The first charge was that Attard acted as a private investigator without a licence, in breach of Article 3 of Chapter 389, which forbids anyone from performing the job of a private investigator without a licence from the Police Commissioner. The second charge was that of harassment under Article 251A of the Criminal Code.

During the analysis of the facts and of the applicable law with regard to Attard’s first charge, Magistrate Mifsud couches everything as being in breach of Article 4 of Chapter 389, a provision of law which forbids any person from “employ[ing], engage[ing] or permit[ting] the use of private guard services” unless this service is given by someone who is licensed – an offence with which Attard was not charged.

The implications remain to be seen and Attard has appealed the decision.

In legal circles, it is common knowledge that judges and magistrates quote parts of texts from previous judgments, but standard practice and common courtesy dictate that the quote is clearly marked, and the author – whether another member of the judiciary or the author of an academic text quoted by the judge or magistrate – duly acknowledged.

Merely stitching texts together and then going completely in the wrong direction as a result of that stitch casts serious doubt on this kind of methodology.

Magistrate Mifsud, who before being made magistrate was a Labour Party candidate and the Party’s international secretary, has come to be known for his “unconventional” methods of delivering judgments, which have included quoting poetry, that often has little do with the case, or playing music in court and then quoting parts of the lyrics in the judgment – episodes that left a number of legal practitioners concerned that this theatricality could erode the respect for the courts and judiciary.

Theatrics aside, there have also been a number of instances where Magistrate Mifsud’s judgments were overturned by the Court of Appeal, with the latter court using unusually strong words.

In 2017, a Gozitan man’s conviction for aggravated theft and criminal damage was overturned on appeal after the judge ruled that the circumstantial evidence surrounding the case was not “unequivocal”.

Despite the lack of clear evidence that the accused had stolen the winch, after taking all the circumstances of the case into account, the court at the time was satisfied that there was enough evidence to find the accused guilty.

The year before, Magistrate Mifsud had fined 43-year-old John Vella, from Xagħra, €1,000 and ordered him to pay €575 by way of experts’ costs after he found him guilty of aggravated theft, criminal damage and relapsing in relation to the 2011 theft of a winch and stone slabs from a house belonging to Mgr Joseph Vella Gauci in Victoria, Gozo.

The court of appeal decided otherwise. The Chief Justice at the time, Silvio Camilleri, overturned the conviction for theft and criminal damage, saying that the court had “serious doubts” as to whether the testimony of one of the individuals concerned (Rev. John Meilak), which had been tendered a year after the event and then confirmed in an affidavit three years after, was referring to the same incident.

In another judgment in 2018, outgoing Chief Justice Silvio Camilleri sentenced Anthony Fenech, of Victoria, and Rodney Joe Farrugia, of Għajnsielem, to an effective prison term for stealing from the home of Leif Ahlstrom and his wife, Ann-Marie Spaak.

The Chief Justice ruled that there was enough evidence of their complicity in the theft and said he found it “strange” that the Magistrates’ Court, presided by Magistrate Mifsud, had discarded statements given to the police by the two accused, in which they admitted their complicity, and that no reason had been given by the first court for so doing. Magistrate Mifsud had ordered community work for the pair after finding them guilty of handling stolen goods.

The Chief Justice went so far as to say that “The analysis of the evidence as undertaken by the court of first instance with regard to the charge of theft, however, is once again totally deficient” (paragraph 12). This suggests that this was not the first time the magistrate in question had failed to conduct a proper analysis of the evidence before the court.

In 2019, Magistrate Mifsud was found to have breached the code of ethics for members of the judiciary when he expressed his opinion in a judgment he passed on a case of illegal trapping.

In its decision, the Commission reminded Mifsud that members of the judiciary should not express themselves on controversies unrelated to the case they are deciding.