Court rules 68-year-old shot a man twice out of self-defence

A Gozitan man who originally faced attempted murder charges was acquitted of causing grievous injuries after a court ruled that he had acted in self-defence when he shot another man twice in 2005. 

Joseph Portelli, from Żebbuġ Gozo, was however found guilty of firing a weapon in an inhabited area and so was handed a one-month prison term.

Portelli, 68, had been originally arraigned with the attempted murder of Franky Cini following a fight on Triq Zaki in Portelli’s hometown dating back to July 25, 2005.

Cini, who sustained two gunshot wounds, had been separately arraigned and accused of Portelli's attempted murder. He was acquitted by the Court of Magistrates and this was confirmed on appeal.

Portelli was also accused of possessing a weapon while committing a crime against a person, having a weapon and munition without a licence, and grievously injuring Cini.

The man was also charged with breaching the public peace, shooting a weapon in an inhabited area and threatening individuals using a hunting rifle.

Portelli denied the charges. 

In their final written pleadings, the defence raised several pleas questioning the admissibility of certain evidence and incongruencies in the way certain individuals were appointed as experts in the case. 

The defence also raised objections relating to the chain of custody or how certain evidence was gathered and preserved.

The court observed that the ballistics report stated that Brigadier Maurice Calleja was appointed as an expert on July 25, 2005.

However, the decrees by which the different experts were appointed was dated July 28, 2005 and Calleja was not one of them. The court held that Calleja was never appointed an expert and therefore could not express himself on the evidence gathered.

It was also observed that certain police officers investigating the case were appointed as experts in the inquiry. 

The court held that this could not be done due to possible conflict of interest that could arise. It reminded that an expert should be someone whose role is limited to analysing the evidence gathered and giving a learnt opinion about the facts at hand, but a police officer cannot wear different hats. 

Quoting case law, the court held that constables, sergeants and other officers should not be appointed as expert witness, and if they are appointed in the inquiry they are to be treated as ordinary witnesses not an expert witness.

Expert witnesses would have specialised skills or knowledge and would give their opinion following an analysis. While an ordinary witness as a general rule would testify on what they came to know through one of their five senses.

The court, after taking into account that Portelli had not raised any objections against the appointment of the witnesses, ruled that it will consider the facts that the officers testified on, discarding any opinions on the facts at hand.

The defence also raised questions relating to the chain of custody in particular with regards to the pistol, hunting rifle, the pistol holster and the ammunition. 

This was upheld by the court after it observed indiscrepancies in testimonies where one testified that the hunting rifle was found in a room in the yard while another witness said the hunting rifle had been seized by ballistic experts after a search at Portelli’s garage.

In the case of the pistol, a sergeant testified that a woman handed it over to him and that he gave to a constable. However, the constable said the pistol had been seized from a vehicle and then was handed over to a different sergeant.

In his statement to the police, Portelli confessed to firing a pistol and explained how the fight unfolded.

The court observed that Portelli’s and Cini’s relatives provided conflicting testimonies as to what had went down on the day.

The argument ensued after Cini, who had been driving a van, hit a car belonging to Portelli’s daughter. 

Portelli spoke to Cini and then went back to move the van which was in the middle of the road. Cini went after him and assaulted Portelli from behind using a screwdriver. While the injuries sustained by Portelli were not deemed grievous, it transpired that the accused had been hit in the back, in the back of his head and face. 

There were indications that Portelli received several blows from behind, which the court ruled that it indicated a frantic attack.

It also considered the testimony of a witness who was not related to either Cini or Portelli testified that he saw Portelli holding a pistol and shooting at Cini’s abdomen while they were still on the ground. 

The court deemed that the testimony shed light on what happened, and that Portelli shot at Cini while the accused was pinned to the ground after he was attacked by the parte civile. The court ruled that the man was acting in legitimate self-defence, and held that there was no doubt that Portelli was fearful.

The court ruled that the force exercised by Portelli was necessary to ward off the threat.

The court ruled that Portelli was found to have acted in self-defence. He was found guilty of being in possession of the pistol but was not punished since it was used in legitimate self-defence. He was condemned to a month imprisonment for having fired a weapon in an inhabited area when he had no licence to do so. The month should be deducted from the time spent under preventive custody.

The court ordered the confiscation of the pistol.

The defence gave notice of appeal.

Magistrate Brigette Sultana presided over the Court of Magistrates in Gozo.

Lawyer Arthur Azzopardi assisted Portelli.