One long-standing rule of evidence, applicable not limitedly to criminal proceedings, but to all contentious judicial actions, is the so-called ‘best evidence’ rule. It has its roots in the 18th-century English case ‘Omychund vs Barker’ (1780) where Lord Harwicke had remarked that one ought not to admit evidence unless it is “the best that the nature of the case will allow”. It eventually infiltrated the Maltese legal order during colonial times when Malta was under British rule.
Simply put, this evidentiary rule denotes that a party wanting to admit proof is expected to produce the best (or ‘the most satisfactory’ – as article 638 of the Criminal Code puts it) evidence reasonably obtainable.
The term ‘best’ connotes that when a ‘superior’ piece of evidence is available, one ought to refrain from producing an ‘inferior’ or a ‘second-best’ alternative, especially in criminal proceedings where the prosecution bears the onerous responsibility to prove its case beyond a reasonable doubt.
A classic example would be a party to a case who submits a non-original or an outdated version of a document when the original or the updated version is itself available and readily accessible. In such scenarios, the ‘secondary’ piece of evidence, albeit relevant and admissible, lacks probative value for want of reliability.
The application of this evidentiary rule was what led to the full acquittal of the appellant in the judgment delivered on December 16, by the Court of Criminal Appeal (Inferior Jurisdiction) in the names ‘The Police vs Jason Caruana’.
Before the Court of First Instance, appellant was charged with having failed to observe bail conditions as imposed upon him in separate criminal proceedings by the Court of Magistrates (Malta) as a Court of Criminal Judicature in a decree dated June 17, 2016, (as subsequently varied by a decree dated December 2, 2016).
He was found guilty and sentenced to an effective imprisonment term of one year. The Court of First Instance moreover revoked contrario imperio (by a ruling to the contrary) the decree dated June 17, 2016, by means of which the defendant was granted bail, consequently ordering his rearrest. Additionally, the Court of First Instance also ordered the forfeiture in favour of the government of Malta the sum in the amount of €4,000 – representing the deposit and personal guarantee referred to in the aforesaid bail decree dated June 17, 2016.
An appeal was lodged by the person convicted. He argued, among other grievances, that at first instance, the prosecution had failed to furnish proof as to whether the bail conditions allegedly breached remained intact or if they were at any point varied and, therefore, fell short of producing the best possible evidence.
In its judgment, the Court of Criminal Appeal observed that during the initial sitting held before the Court of First Instance on September 9, 2020, the prosecution exhibited a legal copy of the original bail decree dated June 17, 2016, by means of which the appellant was released on bail. Alongside this decree, the prosecution exhibited a legal copy of another unrelated decree – dated November 30, 2016 – which was not the one authorising a variation in the appellant’s bail conditions.
A party wanting to admit proof is expected to produce the best (or the most satisfactory) evidence reasonably obtainable
During the same sitting, the prosecution declared that it has no further evidence left to produce. At this juncture, one ought to remark that in criminal proceedings, as a rule, once a party has declared its case closed, its evidence stage may not be reopened. In the case at hand, therefore, the prosecution was legally precluded from bringing forth any further evidence in support of its case.
As it happened, in a later sitting held before the Court of First Instance – at a point where even the defence had declared its case closed – a note was filed on September 28, 2020, by the Registrar of the Criminal Courts by means of which a legal copy of the original bail decree dated June 17, 2016, was once again exhibited.
Besides this decree, the Registrar of the Criminal Courts also presented a legal copy of the decree dated December 2, 2016 – namely the one that had varied the appellant’s bail conditions and also the one that the prosecution erroneously failed to exhibit during the sitting held on September 9, 2020.
With a great deal of emphasis, the Court of Criminal Appeal held that it was not procedurally permissible for the prosecution to rectify an oversight at such a late stage in the proceedings. The prosecution’s case is simply confined to the evidence produced up until its case is declared closed and, therefore, the Court of First Instance should not have taken cognisance of the note filed by the Registrar of the Criminal Courts on September 28, 2020.
As it turned out, the prosecution closed its evidence stage in the very first sitting of the case, after having only exhibited a legal copy of the original decree granting bail, i.e., the one dated June 17, 2016, alongside another decree – dated November 30, 2016 – having no bearing on the case.
The Court of Criminal Appeal, therefore, indicated in black and white that judicial decisions, especially in the criminal law field, cannot be grounded on assumptions. The documentary piece evidence produced in support of charges pressed is expected to be complete and properly updated.
The prosecution’s failure to exhibit, in due time, a legal copy of the decree dated December 2, 2016, i.e., the latest ‘variation’ decree, implied that the prosecution had also, as a result, failed to furnish the strongest evidence available in support of its allegations – resultantly falling short of producing the ‘best evidence’, or as the law itself puts it, ‘the most satisfactory proof’.
For this reason, the Court of Criminal Appeal fully acquitted the appellant. The case is now res judicata.
Jacob Magri is a junior associate at Azzopardi, Borg & Associates Advocates.