From The Bench: Does the right not to testify apply to de facto cohabitants?

Criminal Law is a fascinating creature treading a delicate line. On one hand, it seeks to safeguard the rights and interests of victims, yet on the other, it is equally committed to protecting the fundamental rights of the accused. Criminal Law exists as a balanced blueprint, one that equips both sides of a case with the means to defend themselves and to assert their rights within the bounds of justice.

One particular tool which ensures that the accused is not put in an undesirable situation lies within Article 635 of the Criminal Code. Under this law, a person generally cannot be allowed to testify for or against the accused if he or she is his or her spouse, civil union partner, or cohabitant, bar a few exceptions enunciated in the same provision, such as when the accused waives his right to silence, takes the witness stand, and calls upon his partner as a defence witness.

At its core, the inherent existence of law is actually quite straightforward, much akin to abiding by the rules of a boardgame. But it is rendered complex once the notion of interpretation comes into play.

A conundrum abutting how Article 635 should be interpreted was grappled by the Criminal Court in the preliminary plea stage of an alleged homicide case, which dates back to 2017 (Att ta’ Akkuża 4/2024).

The pleas presented by the accused before standing trial were many, yet one of them stood out. The defence’s eighth plea was rooted in Article 635 of the Criminal Code, wherein it was argued that prior testimonies and depositions of a particular witness were inadmissible in the case at hand due to the fact that she is the accused’s cohabitant.

Amongst other considerations, the Criminal Court upheld this plea, pointing out that since this witness was the partner of the accused and that they have two children together, Article 635 finds its application. The court subsequently ordered that her prior testimonies and depositions be stricken from the acts of proceedings.

But the Attorney General appealed from this decision, arguing that the witness and the accused were neither married, partners in a civil union, nor cohabitants as defined in Chapter 614 of the Laws of Malta, especially since such evidence did not emerge from the compilation of evidence presided by the Court of Magistrates as a Court of Criminal Inquiry.

The defence retorted that the provisions of Chapter 614 of the Laws of Malta have no application in the criminal sphere, and that the Attorney General could not rely on the definitions provided in that law to strengthen his argument.

Before jumping into the intricacies of the appeal, the Court of Criminal Appeal, sitting in its superior jurisdiction, pointed out that although the Criminal Court declared that the exclusion provided for in Article 635 of the Criminal Code applied in respect of this witness, it did not indicate the nature of the relationship between her and the accused, (if any), except for the fact that the accused and this witness have two children in common. It was not specified whether they cohabit, are partners in a civil union, or are married.

The Court of Criminal Appeal observed that the witness appeared in the case only twice: once during an interview with investigators and later when giving limited testimony in the compilation of evidence.

Although the defence objected under Article 635 of the Criminal Code, the Court of Magistrates as a Court of Criminal Inquiry allowed her to testify about her relationship with the accused. Under oath, she stated that she had been in a relationship with him for thirteen years, had two children with him, and they had been living together for ten years. The Court of Magistrates then recognised her right not to testify for or against the accused, after which the Attorney General removed her from the prosecution’s witness list, even in the subsequent Bill of Indictment.

As abovementioned, the Criminal Court subsequently ordered the removal of the witness’s testimony at the request of the defence. The Criminal Court also ordered the expungement of her sworn interview from the records.

Registered and de facto cohabitation  

The Court of Criminal Appeal observed that although the witness had been living together with the accused, they were neither married nor in a civil union. Their cohabitation also did not appear to be formally registered or regulated under Chapter 614 of the Laws of Malta. Thus, the Attorney General argued that the exclusion under Article 635 did not apply to her, since her relationship with the accused did not fit any of the legally recognised categories covered by that article.

The Court of Criminal Appeal found that it was undisputed that the witness and the accused were de facto cohabitants. Under Act XV of 2017, which introduced the old Cohabitation Act and amended Article 635 of the Criminal Code, a cohabitant was defined as a person who habitually lived with another in a shared home, within an intimate relationship, and who was not legally bound to another person.

The Act also defined “de facto cohabitation” as a relationship between two persons living together that was neither registered nor unilaterally declared under the Act, and which included individuals who were legally separated from their spouse or civil union partner.

Article 3 of the old Cohabitation Act then proceeded to explain that a de facto cohabitation did not create mutual legal rights or obligations between partners, nor did it grant legal recognition to their relationship, except after two years of living together, and even then, only for limited purposes. After this period, the law granted a few specific rights.

The old Cohabitation Act was later repealed and replaced by Act XXVII of 2020, which introduced the new (and presently in force) Cohabitation Act (Chapter 614 of the Laws of Malta).

Under this new law, a cohabitant is defined as a person who continuously and habitually lives with another in a shared home as a couple, has entered into a public deed of cohabitation, and is not legally bound to another person, effectively removing the concept of de facto cohabitation. However, Article 30 of this new Act preserves the provisions of the old Cohabitation Act for rights acquired in a de facto cohabitation.

The Court of Criminal Appeal then analysed Article 635 of the Criminal Code as amended by Act XV of 2017 but not by Act XXVII of 2020, noting that the legislator intended for these provisions to protect spouses, civil union partners, and cohabitants from being forced to testify against each other. It proceeded to pronounce that the inherent aim of Chapter 614 was to then extend legal rights and obligations to those living together regularly as a family unit, even if not married or in a civil union, so that such arrangements were covered by similar safeguards afforded to legally recognised couples.

However, the Court of Criminal Appeal noted that, under the current legal climate, a cohabitant is only someone whose relationship is legally regulated. Article 3 of Act XV of 2017, under which Article 635 was amended, defined the legal rights and obligations of cohabitants, but excluded the right to refuse to testify for or against the other party in a de facto cohabitation.

Thus, the Court of Criminal Appeal rejected the defence’s argument that Chapter 614 did not apply in criminal matters, noting that the Gender-Based Violence and Domestic Violence Act (Chapter 581) defines a family or domestic unit to include spouses, civil union partners, and cohabitants under the Cohabitation Act, whether current or former, along with their children.

Cohabitant refers only to a person whose relationship is legally regulated

Accordingly, the court reasoned that unless the legislator provides otherwise, the term ‘cohabitant’, as introduced by Act XV of 2017 and now replaced by Act XXVII of 2020, refers only to a person whose relationship was legally regulated, and did not include de facto cohabitants. It followed that the accused’s eighth exception could not be upheld.

Additionally, although all documents in the acts of proceedings were admissible evidence, the prosecution could not rely on the early-stage interview of the witness in question because she was not listed as a prosecution witness, and thus could not be called to confirm it. However, this did not prevent the interview from being used during the trial, since the court noted that the Defence, which raised the witness’s incompetence under Article 635 of the Criminal Code, had nevertheless listed her as a witness in the List of Witnesses attached to the preliminary pleas.

Hence, it followed that if, during the trial, the situation described in Article 635(1)(c) of the Criminal Code arose – meaning that the accused waived his right to silence, took the witness stand, and then chose to call his partner as a defence witness – the prosecution would still be entitled, during cross-examination and for verification purposes, to refer the witness to her earlier interview, if necessary. Thus, this evidence could not be excluded a priori, and the testimony the witness gave before the Court of Magistrates as a Court of Criminal Inquiry could not be disregarded, as it did not address the merits of the case.

For these reasons, the Attorney General’s appeal was upheld, and the Criminal Court of Appeal overturned the Criminal Court’s judgment by rejecting the eighth exception raised by the Defence.

This judgment is final and cannot be appealed further.

Arthur Azzopardi, is managing partner and Alec Carter is paralegal at AB&A Advocates.