Two cousins found guilty of shooting a protected flamingo in 2013 have been spared jail time on appeal, but had a permanent ban on their hunting licences confirmed.
The case dated back 11 years to the night between June 3 and 4, 2013 when the protected bird was shot down in the Salini nature reserve by a man later identified by eyewitnesses as Justin Attard, then 24 years old.
The poacher fled the scene, getting into a white Mitsubishi Pajero that drove up to him after he shot the flamingo.
Police later found the getaway vehicle, which was locked. On the passenger side, they found a pink feather which was subsequently tested by a DNA expert and found to match the shot flamingo.
Four suspects, namely Justin Attard, his father Edgar Attard, his cousin Cliff Borg and Massimo Parnis were jointly charged with conspiring to commit a crime in breach of the Wild Birds Conservation Regulation.
Justin Attard and Borg were separately charged with hunting the flamingo, keeping the protected bird, breaching hunting regulations as well as possession of a firearm in the vicinity of the bird sanctuary.
The pair were also charged with relapsing.
In 2016, Justin’s father and Parnis were cleared of all charges by a Magistrates’ Court which, however, declared Justin and his cousin guilty, condemning them each to a two-year effective jail term and a fine of €9,000.
Their hunting licences were also permanently revoked.
Both filed an appeal on various grounds.
Their lawyers cast doubt on the eyewitnesses’ identification of Attard as the man who shot the flamingo.
They argued that that testimony was not credible since it was unlikely that the eyewitnesses could identify the suspect across the distance from their apartment and in pitch darkness.
Moreover, one of the witnesses had admitted that he had poor eyesight and had, in fact, acquired spectacles after the incident.
There were certain inconsistencies in the witnesses’ accounts, argued the lawyers.
Attard also claimed that he used to leave the keys in his unlocked car and therefore anyone could make use of it.
The defence cast doubt on the identification parade, arguing that those alongside the accused were plainclothes officers, older than Attard, thus making him stand out among the rest.
The punishment handed down was also excessive, argued the lawyers.
When delivering judgment on Tuesday the Court of Criminal Appeal, presided over by Mr Justice Neville Camilleri - who was assigned the case last year- focused on the evidence put forward by the prosecution.
Not only had the DNA expert confirmed the matching feather but Attard had been identified by more than one eyewitness, even years after the incident during court proceedings.
The court was satisfied that the testimonies concurred on the main facts.
And frankly speaking, the court did not believe Attard’s account about leaving his car unlocked, said the judge, pointing out that when police came across the vehicle it had been locked.
As for Borg, the court concluded that the prosecution had failed to present satisfactory evidence that he was involved in the shooting of the protected bird.
After the incident, police found Borg at a field belonging to his cousin. But that did not automatically render him an accomplice in the flamingo incident.
The court thus him acquitted of those charges but confirmed the conviction in respect of a decoy and other stuffed species police had discovered in his possession.
Attard’s conviction was confirmed but when sentencing the accused, the court observed that punishment was not meant to be a sort of payback by society but was aimed at educating and reforming the accused who would then be reintegrated in society.
The court also took note of the fact that the incident took place in 2013 and years had passed until the case reached final judgment.
The updated criminal records of both cousins showed that neither had any brush with the law for a long time.
A social inquiry report was also presented in respect of Attard.
When all was considered, the court confirmed Attard’s conviction but varied the jail term to a two-year term suspended for two years whilst confirming the €9000 fine.
A suspended sentence was no “let off” and “no slap on the hand,” observed Judge Camilleri, warning the appellant to be wary of committing any other offence during the operative period.
As for Borg, his jail term was revoked and his fine was reduced to €5000.
Court expenses totaling €3,385.24 were to be shared equally and the permanent revocation of their licences was also confirmed.
Lawyers Franco Debono, Marion Camilleri and Adreana Zammit assisted the appellants.