The Attorney General has requested a retrial in the case of a police constable cleared of raping a female colleague at the Msida police station.

In an appeal, the AG 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 33-year-old police constable was cleared of rape last March but found guilty of harassing a second woman, a teenage recruit.

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

The AG has now appealed the case, asking the court to accept the statement and proceed to order a retrial.

Confession 'not legally valid'

In an appeal hearing before Chief Justice Mark Chetcuti and judges Edwina Grima and Giovanni Grixti, the parties debated the inadmissibility or otherwise of the incriminating statement released by the officer in 2018.

Defence lawyers Franco Debono and Edward Gatt 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. Debono 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. Police had thus restricted the accused in what he said and this had “terrified him”, Debono argued.

While the pre-2016 caution was to the effect that an inference of guilt could be drawn by a court if the suspect avails himself of legal assistance prior to interrogation, the law was changed to the complete opposite after 2016. The new rule states that no inference of guilt can 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.

'Outdated caution does not change statement'

Deputy Attorney General Philip Galea Farrugia insisted that while it was not being contested that the caution was an outdated one, this did not change the contents of the statement.

He objected to a request for a ruling on this aspect before dealing with the rest of the appeal, insisting that there was nothing stopping the court from ordering a retrial.

The court deferred the case to July 10 for a decision on the matter.

The alleged victim testified during the 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.

The accused had made comments about her bottom, had placed his hand under her when she sat on the passenger seat, tried to touch her leg in the car and spoke about his hand slipping from the gear stick.

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.

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.

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