Right to fair trial 'likely to be violated'

The Constitutional Court yesterday revoked a judgment of the First Hall of the Civil Court (in its constitutional jurisdiction) and ruled that the fundamental human right to a fair trial of a woman charged with drug importation and due to face a trial by jury was likely to be violated.

The judgment was delivered following a constitutional reference to the First Hall of the Civil Court by the Criminal Court.

The first court had been requested by the Criminal Court to determine whether a particular provision of the Dangerous Drugs Ordinance was in violation of the right to a fair trial and in particular to the right to the presumption of innocence and the benefit of equality of arms.

Section 26(2) of the Ordinance provides that: "When the offence charged is that of possession of, or of selling or dealing in, a drug contrary to the provisions of this Ordinance it shall not be a defence to such charge for the accused to prove that he believed that he was in possession of, or was selling or dealing in, some thing other than the drug mentioned in the charge if the possession of, or the selling or dealing in, that other thing would have been, in the circumstances, in breach of any other provision of this Ordinance or of any other law".

The constitutional reference was made by the Criminal Court in the case filed by the police against Susan Jayne Molyneaux. The accused was charged, together with another man, with having conspired to import and deal in cocaine and ecstasy pills and with having promoted, constituted, organised and financed such conspiracy.

The bill of indictment issued against Ms Molyneaux also alleged that the accused did not specifically know that drugs were to be imported illegally into Malta but that she was convinced that something against the law was going to be imported into the country (such as money in order to evade tax on currency).

The accused submitted that the provisions of section 26(2) of the Ordinance were in violation of her right to a fair trial as it deprived her of the benefit of the presumption of innocence and of equality of arms with the prosecution.

After the First Hall of the Civil Court dismissed the constitutional reference, Ms Molyneaux filed an appeal to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

The appellate court pointed out in its judgment that the trial by jury of Ms Molyneaux had not yet commenced and therefore the question raised by her before the Criminal Court was that her fundamental human rights, as protected by both the Constitution and the European Convention of Human Rights, were likely to be contravened in her regard.

The Constitutional Court noted that there was no doubt the offences of possession of and of selling or dealing in a drug, as well as the offence of conspiring for the purpose of selling or dealing in a drug in Malta, were all wilful offences requiring the appropriate formal intentional element. These were not crimes that could be committed negligently. Therefore, the prosecution had to prove that the substance in question was in fact a prohibited drug and not something else and it had also to prove that the substance was in the possession of the accused.

In the case of importation, the prosecution had also to prove that the drug was in fact brought into the country. With regard to the intentional element of these crimes, in terms of law if a person was found to be in possession of a prohibited drug, or if he had imported the drug, then such person was presumed to have been knowingly in possession of that drug and to have knowingly imported the drug. This presumption was a rebuttable presumption of law. However, the Ordinance stipulated that the word "knowingly" meant a minimum knowledge of the existence or presence of the drug and that if the accused believed that the substance was something other than a drug, then the accused believed that this other substance was being brought into the country illegally.

The court added that the presumption of innocence was a fundamental principle of criminal justice, though there were instances where the onus of proof was shifted onto the defence.

The principles applied by the local courts in this regard were that it was for the prosecution to prove the guilt of the accused beyond reasonable doubt.

If the accused was called upon by law to rebut the evidence brought against him by the prosecution, the accused was only bound to prove or disprove that fact on a balance of probabilities. In such a case then the accused was entitled to be acquitted. Before the accused could be found guilty, the judge had to be satisfied beyond reasonable doubt, after weighing all the evidence, of the existence of both the material and the intentional element of the offence.

When examining the provisions of section 26(2) of the Ordinance the Constitutional Court declared it was clear this provision aimed at avoiding the situation, in matters concerning drug possession and drug trafficking, where an accused person, who deliberately held back from asking about the nature of the substance that he had bought or obtained, but who was aware that he has bought or otherwise obtained an illegal substance, can avoid punishment at law.

In this manner, this provision of the Ordinance did not require that the accused should know that he was in possession of a prohibited drug. Guilt would be found even if the accused was merely aware that what he possessed, or what he had imported into the country, was something illegal.

The question that the Constitutional Court had to consider was whether the combined effect of shifting the burden of proof onto the accused together with the limitation contained in section 26(2) of the Ordinance could be said to be reasonable and proportionate so as not to prejudice the rights of the defence.

The court declared that after studying the matter carefully it was of the opinion that the rights of the defence were likely to be prejudiced. While the court said that it fully appreciated the reasons behind the provision of the Ordinance, the absolute way in which this provision was drafted effectively deprived an accused person of the possibility of any reasonable defence to a charge of possession of and trafficking in a dangerous drug. Furthermore, this provision deprived the court of the power to assess the evidence and to tailor the punishment according to the moral blameworthiness of the accused.

By way of example the court said that if an accused person proved to the satisfaction of the Criminal Court that he genuinely believed he was importing, for example, a pornographic film in cassette form but the cassette turned out (unbeknown to him) to be packed with heroin, the accused faced imprisonment ranging from a minimum of four years to a maximum of life imprisonment. The accused in such a situation would also face a fine ranging from a minimum of Lm1,000 to a maximum of Lm50,000. On the other hand, the punishment under the Customs Ordinance for the importation of such pornographic material was a fine not exceeding Lm25 together with imprisonment for a term not exceeding two years.

This clearly placed the accused at a disproportionate disadvantage vis-a-vis the prosecution and the accused had absolutely no chance of redressing this disadvantage.

In conclusion, the Constitutional Court declared that the trial by jury of Ms Molyneaux had not yet commenced and therefore the court could not determine how the trial judge would ultimately direct the jury or how the judge would interpret this provision of the Ordinance. The Constitutional Court could only assume that the Criminal Court would interpret this provision as it had been interpreted previously by the Court of Criminal Appeal. It would therefore appear that it would be sufficient for the Constitutional Court to direct the Criminal Court to ignore that part of section 26(2) which created the imbalance against the accused.

The Constitutional Court therefore revoked the judgment of the First Hall of the Civil Court and declared that, in this case, the fundamental human right to a fair trial was likely to be contravened in relation to Ms Molyneaux by the application of section 26(2) of the Ordinance.

The court remitted the proceedings to the Criminal Court and directed this court to ignore the operative provisions of section 26(2) which could affect Ms Molyneaux's rights.

The Constitutional Court also ordered a copy of its judgment to be sent to the Speaker of the House of Representatives.