A man who racked up nine months of jail after he was charged nine separate times for failing to pay child support had his fundamental rights breached, a judge ruled on Monday. 

Joseph Muscat (not the former prime minister) was arraigned in July 2021 for neglecting to pay his former partner child support for the children that they share. It later emerged that he had been charged with the same offence on eight separate occasions between October 2020 and June 2021. 

In each instance, Muscat was found guilty and sentenced to a month of jail time, racking up nine months for nine individual infractions. 

However, in an appeal, lawyer Arthur Azzopardi argued that Muscat’s right to a fair trial had been impinged by the way with which his client had been charged with nine separate instances of the same offence, rather than one continuous one. 

The Criminal Code, he argued, caters for instances when a person is accused of committing the same crime with the same person and can be made to answer for one continuous offence, which can even see punishment meted out increased by a degree or two at the court’s discretion. 

Rather than doing so, prosecutors had chosen to charge Muscat with each offence separately. 

In their rebuttal, the State Advocate and Commissioner of Police argued that they had a duty to the victim to prosecute the offences separately due to the six-month time limit on filing charges for not paying child support. 

However, Mr Justice Francesco Depasquale observed that on at least two separate occasions, there were instances where said charges could have been collated for prosecution but were not, without a valid reason given. 

“Contrary to the impression which the police wanted to give during the State Advocate’s submissions…the police were free to issue one set of charges for three individual months taken together and there was no reason for issuing them separately,” Depasquale said.

Quoting from a number of judgements and legal publications, the judge pointed out the potential of abuse by the prosecution, at whose sole discretion it is whether or not to treat such instances as a continuous offence. 

'Twist his arm'

Muscat had in fact requested that the prosecution treat his case as an ongoing offence, but that was refused and he was told that these were individual reports on his failure to pay maintenance. This had exposed him to a potential 18-month effective jail term and Muscat had in fact been imprisoned for nine months. 

“The Court cannot but observe that the behaviour of the prosecution, in particular with regards to those charges issued on the same date, can be taken to be abusive and solely aimed at inflicting the maximum possible damage on the accused, which behaviour certainly cannot find support in this Court,” the judge said. 

Charging Muscat separately, Depasquale found, had been done “clearly to twist his arms” with the threat of harsher punishment to get him to pay up the money due to the mother of his children.

This, he said, was reflected in the State Advocate’s philosophy when it insisted that no breach of rights had taken place citing a practice where a sentence would be turned into a conditional discharge once the alimony is paid. 

“This practice has been adopted by the courts solely in view of the repeated abuse committed by the prosecution in similar or identical cases, wherein they object to amalgamating the charges and thereby the Courts are constrained to reduce the punishment in an attempt to provide a remedy,” Depasquale continued.

“The court, therefore, understands that the prosecution is knowingly and with clear intent, abusing its exclusive prerogative on whether or not to include several crimes in the same charge, which abuse would certainly not be there, had the prerogative provided by Article 595 of the Criminal Code would not only be applicable upon a request by the Attorney General or the Police but would be applicable also by the Court itself, ‘ex officio’ if considered opportune.”

The judge ruled that as a result Muscat’s right to a fair earring had been breached and was causing him to be condemned to harsher penalties than are appropriate. 

The court ordered that similar charges against him must be considered a continuous offence and ordered that a formal copy of the judgement be sent to the Speaker of the House as well as the Justice Minister. 

Lawyers Arthur Azzopardi and Jacob Magri appeared for Muscat.