A number of criminal charges against the driver and four directors of a sightseeing bus tour operator charged over a fatal double-decker bus incident almost three years ago appear to be time-barred.

The issue came to the fore on Friday when the five people turned up in court, two years 10 months after the accident, on April 9, 2018, when the southbound sightseeing trip on the open-top bus, driven by 27-year-old Charles D’Amato, ended in tragedy.

As the vehicle hit a low lying tree branch along Valletta Road, Żurrieq, two of the tourists on the upper deck were killed, while 54 other passengers were injured, four of them seriously.

The magisterial inquiry that kicked off immediately after the incident was wrapped up last month and a copy was handed over to the police on January 10, the court was told on Friday at the first hearing of the compilation of evidence against D’Amato, alongside Degabriele brothers Kim, 40, Philip, 32, Noel, 24, and their sister Lee Ann Borg, 38, as directors of City Sightseeing Malta Ltd.

Two people were killed in the 2018 accident. Photo: Jonathan Borg

A copy of the proces-verbal landed before Magistrate Joseph Mifsud on Friday, just before the hearing.

Asked by the court to explain the reason for the delay in pressing charges, Superintendent Josric Mifsud explained that this was no clear-cut case and that prosecutors had sought to base their action upon a “learned decision”.

As soon as they received the conclusions of the magisterial inquiry, they had immediately taken legal action, filing charges in court on February 16.

Three days later, all five accused were served notice of summons. 

Yet, that explanation was rebutted by Magistrate Mifsud by making reference to a police circular, dated May 2016, urging prosecutors to press charges “if there is enough evidence to warrant an arraignment,” even before the magisterial inquiry has been wrapped up, so as to avoid prescription. 

All five accused pleaded not guilty to involuntary homicide and a number of other offences stemming from that episode, while defence lawyers promptly pointed out that four of the charges were time-barred.

These concerned causing slight injuries to 13 passengers, damage to the bus, dangerous and reckless driving, as well as driving under influence of drink or drugs.

The aftermath of the crash was described by superintendent Johann Fenech who gave a vivid first-hand account of the gruesome scene that met him when he reached the site of the accident.

“I had hardly ever seen anything like what was in front of me,” he said, describing the wrecked bus, stationary close to the roadside wall, massive damages on its front left side which was blood-splattered, with blood still dripping onto the road surface below. 

Charles D'Amato, the driver of the double-decker.

Venturing to the upper deck, Fenech spotted two lifeless bodies, later identified as a Spanish woman and a Belgian man, close to the side where the metal railing had been crushed backwards upon impact with the sturdy branch.

“The railing on the left had been pulled back like a piece of cotton wool,” the witness explained.

The female victim had evidently been forcefully struck on the face, her right eye socket bulged out. 

The man seated behind her, rested against the railing with right arm ripped off, a Canon camera still hanging around his neck.

The missing limb, together with the man’s mobile phone, were discovered on the ground below, along with shattered glass from the windshield and other wreckage smashed upon impact. 

Fresh traces of red paint on the branch were also visible. But no brake marks were observed, the officer said. 

The driver, visibly traumatised, was immediately subjected to a breathalyser test that proved negative and was then taken to hospital in a  highly anxious state.

The remaining passengers, all foreigners, were treated for various injuries, 33 of them rushed to Mater Dei, four in a critical condition.

When testifying later in the inquiry, the majority of them did not describe the driving as “reckless,” and none had indicated any abrupt manoeuvre by the bus driver to avoid some oncoming traffic or obstruction. 

As for the low lying bough, a court appointed expert had concluded that the foliage had not been affected by the heavy storm that swept across the island just days before the crash.

He did, however, recommend its removal since the bough had been weakened upon impact and could risk future accidents. 

The branch had been jutting out but would only have been struck by traffic passing close to the pavement, the witness said. 

On that advice, the branch had been cut off after the fatality.

The case continues.

Inspector Janetta Grixti prosecuted. Lawyers Franco Debono and Amadeus Cachia assisted the driver. Lawyers Shazoo Ghaznavi and Alessia Zammit McKeon assisted the other accused.