The director of a waste collection company who in July was convicted of fraud in a public tender is claiming that his right to a fair hearing was breached when the presiding magistrate expressed herself before passing judgment.

Adrian Muscat was handed a 16-month jail term suspended for 18 months in criminal proceedings where he was charged with fraud and use of false documents. His father, Marius Muscat, faced separate charges in relation to the bid for a €335,296 public tender issued by the Attard Local Council for waste collection services over a four-year term.

Criminal investigations had been triggered after a chance conversation between the secretaries of the Attard and Lija Local Councils when reference was made to a recommendation letter which the Lija council secretary denied ever issuing.

Both father and son were ultimately acquitted of fraud but convicted of using a false document and were handed suspended sentences.

The judgments were confirmed on appeal.

Now, one month after the appeal, Adrian Muscat has filed an application before the First Hall, Civil Court in its constitutional jurisdiction against the State Advocate, the Attorney General and the Minister for Justice. 

He recalled an episode where, he said, the magistrate who had decided his case at first instance had expressed herself in open court before the prosecution had even wrapped up its evidence stage.

A handwriting expert had just testified and presented his report, when Magistrate Donatella Frendo Dimech “invited” him to get his position in order, suggesting that it would be better for him to register an early admission to all the charges, he claimed.

Muscat's lawyer, Matthew Brincat, had then sought the magistrate’s recusal, but it was eventually refused.

He said that the same magistrate had approached him in the corridors of the law courts suggesting that he ought to withdraw his request for her recusal.

The magistrate, he said, ought to have carefully considered his request for recusal because she had expressed herself upon his guilt before the prosecution had even presented all its evidence. 

Such behaviour impinged upon his right to a fair hearing. One of the safeguards for the right to a fair hearing was the impartiality of the judge.

Muscat’s lawyers also observed that the fact that the court of first instance and that of appeal both operated within the same building, did not augur well.

The size and close proximity of these courts meant that the applicant’s right of being granted a fair hearing and an appeal that was truly separate and distinct from the pronouncement of the first court, was not guaranteed.

Muscat called on the court to declare that his fundamental rights were breached and to grant him adequate remedies, including annulment of the criminal proceedings and quashing of his conviction. 

Lawyers Franco Debono and Matthew Xuereb signed the application.