All and sundry know that the Court of Criminal Appeal exists, yet no two persons agree on its function, duty, or powers. Sometimes even legal professionals, willingly or unwillingly, manage to confuse this most basic of elements of our judicial system.
On December 20, 2022, Mr Justice Aaron Bugeja, presiding the Court of Criminal Appeal in the case “The Police v. Ishmael CACHIA”, went to great lengths to explain in detail the powers of this court and the raison d’être of said powers.
Mr Justice Bugeja stated in no uncertain terms that this court acts as a court of revision of decisions taken by the Court of Magistrates. On this basis the Court of Criminal Appeal does not and cannot replace nor change the appreciation of the evidence done by the Court of Magistrates unless the appreciation done by that court was legally and reasonably ill-founded.
The judge presiding over the Court of Criminal Appeal, when re-evaluating the case lying before said court, does not ask himself, how would he have decided the case had he sat over the Court of Magistrates, but rather the judge asks himself, with the evidence as brought forward by the parties, coupled with the arguments made by the parties to that suit before the Court of Magistrates, whether the magistrate so presiding could legally and reasonably so decide the case.
It is immaterial whether the judge opines that had he sat over the Court of Magistrates, he would have potentially decided the case differently or imposed a different punishment. The key is whether the magistrate could so decide and conclude.
In this Cachia case, the Court of Criminal Appeal deemed it correct to refer to previous established case-law of our courts and referred, amongst others to what was decided in the appeal decided by the Court of Criminal Appeal in its superior jurisdiction [i.e. the court that decides appeals post a trial by jury] in the names of “Ir-Repubblika ta’ Malta vs Domenic Briffa”, wherein it was stated that: “Kif gie ritenut diversi drabi, hawn qieghdin fil-kamp ta’ l-apprezzament tal-fatti, apprezzament li l-ligi tirrizerva fl- ewwel lok lill-gurati fil-kors tal-guri, u li din il-Qorti ma tiddisturbahx, anke jekk ma tkunx necessarjament taqbel mija fil-mija mieghu, jekk il-gurati setghu legittimament u ragonevolment jaslu ghall-verdett li jkunu waslu ghalih. Jigifieri l-funzjoni ta' din il-Qorti ma tirrizolvix ruhha f'ezercizzju ta' x'konkluzjoni kienet tasal ghaliha hi kieku kellha tevalwa l-provi migbura fi prim'istanza, imma li tara jekk il-verdett milhuq mill-gurija li tkun giet "properly directed”, u nkwadrat fil-provi prodotti, setax jigi ragonevolment u legittimament milhuq minnhom”.
Mr Justice Bugeja meticulously listed a history of case law establishing and reaffirming this principle going back all the way to 1991 and basically referring to judgements delivered by most, if not all, judges that have presided this court since that year.
The Court of Criminal Appeal, albeit reviewing the evidence brought before the Court of Magistrates, would be doing so not to re-evaluate the evidence but rather to review the decision taken by the Court of Magistrates.
In the ordinary scheme of work, the Court of Criminal Appeal, unlike in certain instances before the courts called upon to decide matters of a civil or commercial nature, this court does not decide the case afresh. The question as to whether or not the person charged is guilty or not, is a decision left to the competency of the magistrate who has the duty to analyse the evidence and the legal arguments brought forward.
Naturally for the Court of Criminal Appeal to review the decision of the Court of Magistrates, the presiding judge would have see the evidence on record and conclude whether the magistrate could have legally and reasonably so concluded according to law and as evidenced in the judgement of that court.
If the Court of Criminal Appeal concludes that the Court of Magistrates could have legally and reasonably reached the decision that an appeal had been lodged from, then the Court of Criminal Appeal has no other option but to deny the appeal, even if the judge would personally be of the belief that the Court of Magistrates could have also decided differently from what it decided.
If the Court of Criminal Appeal decides that the Court of Magistrates could have so decided, then that would mean in practice that the magistrate would have decided the case according to law. Naturally, the sole fact that the person appealing the decision of the magistrate would not be in agreement with the decision imposed upon, does not automatically amount to a valid reason for the Court of Criminal Appeal to overturn the decision.
For the Court of Criminal Appeal to quash, in part or in full, the decision taken by the Court of Magistrates, the presiding judge would have to identify where, how and on what, legal preamble or appreciation of evidence or both, the Court of Magistrates was in error and on that basis why the decision appealed is not safe and satisfactory to be confirmed upon appeal.
The Court of Criminal Appeal, in this Cachia case, then painstakingly listed all the articles of law pertinent to the rules applicable in a court of criminal jurisdiction relative to the appreciation of evidence.
Mr. Justice Bugeja then proceeds to state the following:
“Il-Qrati jippruvaw jifhmu xi jkollhom f’moħħhom, f’qalbhom u fil-kuxjenza tagħhom in-nies li jidhru quddiemhom biss mill-kliem li jgħidu u mill-egħmil tagħhom.”
Quoting from “The Modern Law on Evidence”, by Adrian Keane u Paul McKeown [Oxford University Press, 2012, p. 106 – 108.], Mr Justice Bugeja progresses on this point by re-affirming “…that advice currently contained in the Crown Court Bench Book, is simply that the prosecution prove their case, if the jury, having considered all the relevant evidence, are sure that the accused is guilty. Further explanation is described as 'unwise'. If the jury are not sure then, they must find the accused not guilty.” This position has been longstanding in our judicial system as far back as 1957 as expounded by Justice William Harding in the case “Il-Pulizija vs Joseph Peralta”.
Therefore the level of doubt that must exist for a decision of the Court of Magistrates not to be considered as being safe, is a level of real doubt based on reason, good judgement and common sense, that is a doubt that persists and lingers on after a detailed, diligent, impartial and circumspect analysis of all the evidence brought forward against and in favour of the person charged and the legal arguments supporting each thesis thereof.
The Court of Criminal Appeal in the Cachia case, further referred to a 1963 decision, also by Justice William Harding in the names “Il-Pulizija vs Lorenzo Baldacchino”, wherein it was held that, "great weight should be attached to the finding of fact at which the judge of first instance has arrived … he has had an opportunity of testing their credit by their demeanour under examination".
On the basis of said legal principles, the Court of Criminal Appeal, then went on to discuss the evidence brought forward in the Cachia case, consisting primarily of testimony of police officers who had confirmed under oath that on the 21st November 2020 while in the vicinity of Qrendi on duties in relation to illegal bird trapping, they had heard noises purporting to be golden plovers [aka pluvieri]. On approaching the area where these noises were coming from, said police officers had personally seen two men in a hunting hide having control of a loaded trapping site with accompanying activated bird callers.
Cachia claimed, amongst other issues, that on the day he was not trapping but rather hunting and that the illegal trapping site belonged to his father. Cachia further argued that the police officers had failed to mention that upon him being spoken to by the police, next to him, was a hunting shotgun thus proving that he was hunting and not participating in an illegal exercise of bird trapping. On the day and time that Cachia was stopped by the police hunting was permissible.
Justice Bugeja on the basis of the principles aforementioned concluded that the decision of a finding of guilty by the Court of Magistrates declaring Cachia guilty of illegal trapping was legally and reasonably sound for confirmation by the Court of Criminal Appeal, since no lurking doubt, nor any legal principle wrongly applied, nor evidence having been wrongly interpreted by and when the Court of Magistrates stated that no reference was made by the police officers to a shotgun next to Cachia, since no shotgun was present on the day and time Cachia was stopped and this also on the basis that Cachia himself brought forward no evidence in support of his claim.
Arthur Azzopardi is Managing Partner at Azzopardi, Borg & Associates Advocates.