Much akin to a flight of stairs, there are four principal levels of proof in a court of law – Possibility, Probability, Beyond a Reasonable Doubt, and True Certainty. The higher you go, the harder it is to attain such a level of proof.

Now imagine yourself accused in a criminal case, standing atop that flight of stairs. The prosecution need not reach the fourth step of True Certainty in order to achieve a conviction in your regard.

In an exhibition of humility, it is a legally accepted notion that the human mind is incapable of achieving True Certainty regarding a past fact. Therefore, the prosecution in a criminal case need only reach the third step – Beyond a Reasonable Doubt – to secure your conviction.

In essence, this level of proof denotes that the evidence presented by the prosecution must be so damning that it leaves no reasonable doubt in the minds of the judge or jury as to whether a defendant is guilty of an offence or not.

Thus, if an inkling of a genuine doubt grounded in reason lingers in the mind of the presiding judge or jury, casting genuine uncertainty over whether the accused committed the crime, a guilty verdict must not be rendered. This high standard of proof exists to safeguard individuals from wrongful punishment, abiding by the principle of in dubio pro reo, meaning that doubt must favour the accused.

Establishing proof beyond a reasonable doubt is a formidable challenge for the prosecution in a criminal case, and it is not uncommon that defendants are acquitted simply because the prosecution fails to meet this rigorous standard of proof.

Needless to say, this is one of the most compelling objectives for a defence lawyer – to induce doubt in either the Judge or jury; because as asserted by Lord Widgery, “if the overall feel of a case left the court with a ‘lurking doubt’ as to whether an injustice may have been done, then a conviction will be quashed, notwithstanding that the trial was error-free”.

However, the courts do not appreciate this method of defence being employed whimsically, and rightfully so.

In ‘The Republic of Malta vs Lawrence Abina’, decided by the Court of Criminal Appeal on the 4th of December, 2024, a rather perplexing attempt at convincing the court that the defendant’s prior conviction by the Criminal Court did not meet the requisite threshold of proof necessary for a guilty verdict – that of Beyond Reasonable Doubt – was exhibited.

I say ‘rather perplexing’ because the appellant actually admitted to the crime of wilful homicide on three separate occasions, but subsequently appealed on the grounds of lacking evidence.

To summarise, Lawrence Abina was charged with the murder of Rita Ellul on February 26th, 2022, in Għajnsielem, Gozo. The prosecution accused him of maliciously causing her death by strangulation, with intent to kill or put her life in manifest jeopardy. On March 20th, 2024, a jury unanimously found Abina guilty, and the Criminal Court sentenced him to life imprisonment.

Circumstantial evidence on its own already implicated Abina. His employers testified that on the morning of the murder, he arrived at work unusually late, which was highly uncharacteristic for him. Moreover, witnesses, including the victim’s daughter, confirmed a history of domestic violence in Abina and Ellul’s relationship. Police officers also testified that Ellul had previously reported instances of abuse within said relationship.

But the most interesting take-away lies in the fact that during his police interrogations, Abina admitted to contemplating murdering Ellul the day before, and ultimately carried out the act due to jealousy.

The Court of Criminal Appeal noted that Abina had confessed to the murder on three separate occasions to different police officers, each time providing consistent details about the act. It continued to note that his confessions were voluntary and that he had ample time to reconsider his admissions, yet he did not retract them.

Abina sought an appeal to his conviction based on a discrepancy between his own police statements and forensic evidence. In his statements, Abina admitted to strangling Ellul with both hands, while forensic expert Dr. Mario Scerri concluded that the marks on Ellul’s neck indicated strangulation with one hand. Abina argued that this contradiction created a reasonable doubt that should have led to an acquittal.

The court dismissed Abina’s claim that the contradiction regarding the use of one or two hands constituted reasonable doubt. It held that this minor discrepancy did not undermine the fact that Ellul was indeed strangled to death by Abina, as confirmed by his own admissions. Thus, it found Abina’s appeal to be frivolous, lacking both legal and factual merit.

The Court of Criminal Appeal proceeded to affirm that even if Abina had not explicitly intended to kill Rita Ellul, his reckless actions – knowing strangulation could be fatal – were sufficient to establish criminal intent. The court concluded that the jury had been correctly guided on the law and that its guilty verdict was justified beyond reasonable doubt.

Ultimately, the court dismissed the appeal in its entirety, upholding Abina’s conviction and sentence of life imprisonment.

As noted above, a conviction in a criminal case may only be secured once the prosecution attains the rather high threshold of proof of Beyond Reasonable Doubt. However, this case underlined the fact that the Court will not take too kindly to vexatious attempts at circumventing the legal system in order to attain an acquittal by trying to extract doubt from ill-founded premises.

This judgment is final and may not be appealed further.

Dr Arthur Azzopardi is Managing Partner, and Alec Carter is Paralegal at  AB&A Advocates.