Attorney General stops prosecution

The Attorney General has stopped the prosecution of Jamal Badawi over the rape and illegal arrest of a 55-year-old woman in a Floriana subway just over a month ago.

The Attorney General, Anthony Borg Barthet, entered a nolle prosequi on the record of the proceedings against Badawi and sent the record of the proceedings back to the Magistrates' Court with a request for it to proceed only on the charge of the illegal possession of an air pistol.

He also requested Magistrate Lawrence Quintano to send the procès verbal back to the inquiring magistrate, in this case Magistrate Miriam Hayman, for her to continue investigating the rape case.

Meanwhile, the Attorney General also replied to a judicial protest filed by Badawi, through his lawyer Roberto Montalto, in the Civil Court last week.

Badawi called on the Attorney General and the Police Commissioner to remedy the situation by entering a nolle prosequi on the record, arguing that the Magistrates' Court had acknowledged it had enough evidence to discharge him.

He said it had been evident at the very beginning of the case against him that the investigations had been conducted hastily and that there were a lot of discrepancies in the prosecution's case.

He had claimed his innocence right from the start and had given a blood sample for DNA testing despite being told it was not compulsory but the police had still opted to arraign him before they obtained the results of the DNA comparison, widely considered to be 99.9 per cent conclusive.

Badawi said that not only had the victim amply shown that she was not in a position to identify him but DNA results had excluded him and a witness had moreover taken the stand to admit to the crime.

But the Attorney General and the Police Commissioner yesterday said Badawi's request was untenable because the nolle prosequi was a decision that could not be subjected to any pressure or intrusion and no court could order the Attorney General to take such a decision, neither could he be solicited to take it.

They defended the police's actions and said they had done exactly what was expected of them and none of their actions broke the law.

They said Badawi had been categorically and unequivocally identified by the victim in the presence of the inquiring magistrate. He had also proffered an alibi which had been proven false.

The police were afraid Badawi would escape and it would not have been prudent for them to wait until the DNA results were made known before arraigning him.

At best, the results would confirm the charge, at worst, they would not confirm it but would not exclude it. In fact, the DNA test results did not exclude Badawi.

The Attorney General and the Police Commissioner said Badawi had been granted bail but had remained in preventive custody because his bail had been revoked in another case against him.

Meanwhile, the police had brought all their evidence before the Magistrates' Court, even evidence in Badawi's favour, and have even requested the court to recall the proceedings. They had acted correctly and ethically and Badawi could not complain of their actions.

The police had been juridically correct to insist that the compilation of evidence should continue and that the court should hear all the evidence in favour and against Badawi.

Neither the police nor the Magistrates' Court had the power to stop a compilation of evidence once it had started but the compilation was to continue until it was concluded according to law.

The police had also been right to insist that the evaluation of the evidence was to be left to another authority (either the Attorney General, the Court of Criminal Judicature or the Criminal Court) once the court had been presented with the conflicting evidence of positive identification and a person claiming to be the perpetrator. Although the evidence was conflicting, both claims could still be proven true and the magistrate had been right to uphold this submission.

Following the Magistrates' Court ruling on indictment, the Police Commissioner's role had been limited to the investigation and his job was simply to inform the competent authorities of developments, as he was in fact doing.

The Attorney General was in a position to exercise his discretion only after he received the file of proceedings on Monday. This he had since done.

The Attorney General and the Police Commissioner concluded by denying all Badawi's claims and calling on him to desist while reserving all their rights, including the right to file a jactitation suit.