A policeman is to face a fresh trial for allegedly raping a female colleague at Msida police station.

The 34-year-old police constable was cleared of rape in March last year but found guilty of harassing a second woman, a teenage recruit. 

The Attorney General had appealed the verdict and asked the court to overturn a decision by the judge presiding over the trial, who ruled as inadmissible a statement in which the accused confessed to raping his colleague.  

The policeman, who cannot be named by court order, had been sentenced to one year in prison suspended for two years. 

On Wednesday, the appeals court, presided by Chief Justice Mark Chetcuti, Mr Justice Giovanni Grixti and Madam Justice Edwina Grima, quashed the verdict and declared that the accused must undergo trial again and the statement is to be included in evidence. 

The alleged victim testified during the first trial that the accused raped her at the Msida police station when they were both on duty in February 2018 and again the following month. 

Another colleague, a 19-year-old recruit, told the court she had been sexually harassed by the officer, including once inside a police car while out on night duty and another time while waiting outside the law courts in Valletta. 

During the trial, prosecutors told the judge that both women had been left traumatised by the abuse committed by someone who was duty-bound to prevent crime.

The presiding judge, Consuelo Scerri Herrera, likened the Msida police station to a “brothel” but said that the lax and permissive behaviour there did not necessarily mean there was criminal wrongdoing.

She said that the alleged rape victim’s version was not credible and cleared the officer of all charges in her regard. A detailed analysis of her account showed inconsistencies and it was “more likely” that the sex was consensual.

The judge said that normally rape victims would try to do everything to avoid their aggressor but in this case the woman changed her shift to be at Msida, sat in front of him at a meal, and did not file for transfer after the alleged attack.

Her comments were criticised by women rights and victims support groups who likened it to victim-shaming and said there was no "normal way" for a victim to behave after sexual abuse. 

The judge ruled that the defendant had overstepped the mark when it came to his behaviour towards the second woman.

The inadmissibility or otherwise of the incriminating statement by the accused in 2018 had been intensely debated during the court proceedings. 

Defence lawyers had argued that the confession was not legally valid because of a change in the law concerning how an arrested person should be cautioned.

When the law was amended in November 2016 to introduce the right to legal assistance during interrogation, the caution was also changed.

The interrogation of the officer took place in March 2018 and lawyers argued that the caution read out and typed “in the smallest ever font size” on the statement was not in line with the 2016 amendment.

It included the inference rule – which no longer applied – namely that whatever the accused omitted to state could lead to inferences against him.  

While the pre-2016 caution was to the effect that an inference of guilt could be drawn by a court if the suspect availed himself of legal assistance prior to interrogation, the law was changed to the complete opposite after 2016. The new rule stated that no inference of guilt could be drawn and this, the defence claimed, was no technicality but a radical overhaul of the previous position, having enormous implications on the suspect’s legal rights.

The prosecution had  insisted that while it was not being contested that the caution was an outdated one, this did not change the contents of the statement.