It is not at all uncommon in Malta for a case, initially presided over by one particular member of the judiciary, to be assigned to a different judge or magistrate midway through the proceedings.
This may occur for several reasons, ranging from the promotion of magistrates to judges (in the case of proceedings pending before the Court of Magistrates) to instances where the chief justice, with the aim of achieving better distribution and organisation, reassigns cases related to specific matters to different members of the judiciary, especially so when new judges and magistrates are called to the bench.
As a result, in determining the outcome of judicial proceedings, judges and magistrates oftentimes find themselves having to base their considerations on transcripts (or, at most, recordings) of witness testimony, naturally because they would not have had the luxury to witness the case progress and to actually watch the witnesses testify before their own eyes.
In practice, the magistrate to whom a criminal case has been newly assigned asks the prosecution and the defence in open court whether the court is being exempted from re-hearing all witnesses that would have already testified in the proceedings. This typically occurs in the first sitting presided over by the ‘new’ magistrate. If the parties to the case show their consent, the exemption is taken note of in the relative court minute and the ‘new’ magistrate proceeds with the hearing of the case.
Nonetheless, one might still contend that this well-rooted practice undermines the best interest of justice, especially so in light of the evidentiary rules respectively set out in articles 646(1) and 637 of the Criminal Code.
The former requires that, as a rule, a witness is to be examined viva voce, whereas the latter rule requires that in assessing the credibility of witnesses, regard should be given to the demeanour, conduct and character of the witness – all of which are attributes that can only be properly gauged if he/she who is tasked to adjudicate would have watched and listened to the witness testify before him/her.
The rule set out in article 637 of the Criminal Code renders itself ever more important when in establishing the truth, the court in criminal proceedings is faced only with two conflicting versions – typically that of the alleged victim and the person who stands accused – and said court must determine whom they believe and which parts of the witness testimony to consider credible or otherwise.
The question remains, how is a judge or magistrate reasonably expected to properly embark on such a fact-finding exercise and to ultimately arrive at the truth if he/she is only faced with transcripts of witness testimony?
This issue surfaced in the judgment delivered on March 18 by the Court of Criminal Appeal (Inferior Jurisdiction) in the names ‘The Police vs Franky Cini’.
Cini was acquitted of all major charges before the Court of First Instance and found guilty only of having involuntarily caused damage to a property, an offence connected (kompriż u nvolut) to one of the minor charges, being that of voluntary damage to property. He was condemned to the payment of a fine in the amount of €500.
In fact, this time round, it was the attorney general who appealed, not the person ‘found guilty’. In his first grievance, the attorney general argued that the Court of First Instance could not have reasonably arrived at a just decision in considering the accused’s account to be more credible when compared to that of the alleged victim since the presiding magistrate delivering judgment did not hear any evidence viva voce as required by article 646(1) of the Criminal Code and was, therefore, unable to properly assess which of the two versions was actually truthful.
Nothing irregular in the ingrained practice of tacitly consenting to the exemption of ‘new’ presiding magistrates from rehearing previously heard witnesses
While the Court of Criminal Appeal conceded that a total of three magistrates had presided over the case and that most of the witnesses had actually testified before the previous presiding magistrates, the two primary witnesses, being the alleged victim and the accused, had actually testified viva voce before the third magistrate (hereinafter: the ‘deciding’ magistrate).
The Court of Criminal Appeal delved into an exposition of how the proceedings progressed at first instance and noted that the accused was initially arraigned under arrest back in 2007. In 2014, the presiding compiling magistrate was promoted to judge and the case was assigned to a second magistrate before whom no evidence was heard. Finally, in 2015, the case was assigned to the third and final magistrate where all parties to the case, including also the parte civile, exempted the said magistrate from rehearing all witnesses.
From then onwards, both the alleged victim, as well as the accused himself, testified viva voce before the deciding magistrate.
The Court of Criminal Appeal therefore held that the attorney general was wrong in contending that the deciding magistrate did not hear any evidence since the court minutes clearly indicated that the two ‘protagonists’, i.e. the two most important witnesses were actually examined and cross-examined before the magistrate who delivered judgment. The Court of Criminal Appeal did not stop at that.
It also added that it finds nothing irregular in the ingrained practice of tacitly consenting to the exemption of ‘new’ presiding magistrates from rehearing previously heard witnesses – seemingly implying that even if the alleged victim and the accused in this case had not testified before the deciding magistrate, it would have still turned down the attorney general’s grievance on this specific point.
As to the actual merits of the case, the Court of Criminal Appeal remarked that it is not its remit to replace the discretion exercised by Court of First Instance in the evaluation of the evidence and its only task as an appellate court is to determine if the Court of First Instance was reasonable in reaching its conclusions.
The Court of Criminal Appeal raised attention to the fact that this case did not solely revolve on the versions of the alleged victim and the accused since the brawl between the two, involving two pistol shots being fired, was witnessed by an extraneous onlooker who also testified at first instance. The Court of Appeal proceeded to remark that the Court of First Instance had correctly shifted its primary focus on this testimony.
Not only did the Court of Criminal Appeal consider reasonable the conclusions reached by the Court of First Instance but also praised its profound analysis of the facts and the constituent elements of the offences involved.
For these reasons, the Court of Criminal Appeal threw out the attorney general’s appeal and confirmed the first instance judgment in its entirety.
The case is now res judicata (may not be pursued further).
Jacob Magri is a junior associate at Azzopardi, Borg & Associates Advocates.