A statement from a former police constable in which he confessed to raping his colleague cannot be used as evidence in his trial, a judge has ruled in an unexpected move on Thursday.
The typed statement from the 33-year-old, given to his police interrogators in 2018, was read out in court on the third day of the trial. The former police constable denies raping one of his colleagues and sexually harassing another.
In the statement, he had said he was very sorry, adding that he realised the gravity of what he had done and confirmed the victim's version, confessing to the rape.
“If I could turn back time I would not do it. I had time to think things over and I wish to apologise to her for any damages she might have suffered. I was going through a rough patch but that still does not justify what I did," the statement had said.
Caution not in line with law
However, his defence lawyer Franco Debono moved to strike the confession from evidence, saying that it 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 had also been changed.
The interrogation took place in March 2018, yet the caution read out and typed “in the smallest ever font size” on the statement was not in line with the 2016 amendment, argued Debono.
After a brief break, Madam Justice Consuelo Scerri Herrera upheld the defence's request, declaring it inadmissible because police gave him a caution that was not the correct format according to law.
The caution given to the accused included the inference rule, namely that whatever he omitted to state could lead to inferences against him. Police had thus restricted the accused in what he said.
That inference rule no longer applied in 2018. The court also observed that the caution had been written in small print which was "not at all appropriate".
"This is not some disclaimer clause in an insurance policy," remarked the judge.
"The court must do justice with both victims and accused," she said. "Neither must suffer because of any procedural defect. The scales of justice must be applied scrupulously."
The defence then informed the court that the accused will not be testifying.
Starkly different version
The prosecution had questioned such a request to remove the statement as evidence had not been made in the five years leading up to the trial.
Even if the caution was not properly formulated, the accused had not been denied his rights to legal assistance and disclosure, argued Attorney General lawyer Angele Vella.
“They claim that this is a matter of public order, but we claim justice for the victims,” said the lawyer, forcefully objecting to the removal of the statement.
“We are all here for justice. But how can justice be done if inadmissible evidence is allowed?” rebutted Debono.
In her decree, the judge said that prosecution must prove the accused's guilt and statements released not according to law are not admissible.
It's true that the defence could have flagged it earlier in the pre-trial stage, but the court cannot fail to lend an ear to the defence's argument, she said.
The statement had been made a day after the accused had given a starkly different account in an audiovisiual statement.
During that statement, recorded in a small office at the Vice Squad in the presence of a lawyer who was assisting the suspect five years ago, the policeman spoke at length about how he first got to know his female colleagues, fielding questions about his alleged criminal wrongdoing.
The 33-year-old, who cannot be named because of a court order, said he met the female orderly some year or so before the allegations surfaced in 2018, when the two worked on the same shift at the Msida police station.
Their conversation was work-focused at first but eventually they began to speak about personal matters.
She was a mother of a newborn and he was going through a difficult patch because of trouble with his girlfriend, he told police.
During one of those conversations, the accused had asked her about her apparent “fancy” towards another male colleague whom he had observed during a social event organized among shift colleagues.
But she explained that she was not too impressed with the other officer.
Then one day soon after that conversation, while washing his hands at the Msida police station toilets, he caught her smiling at him.
That was when he went up to her and kissed her on the lips, he said.
He then led her to the sergeants’ room where the contact became more intimate and they each partially removed their own trousers before having sex.
The second episode happened during night watch.
Another officer who was on duty that night had gone for a nap on the sofa inside the sergeants’ room. What followed was more or less a repeat of their previous sexual encounter, he explained.
Later, he and the alleged victim had discussed the matter and agreed to keep it a secret between them “so that no one would get hurt.”
Asked about the second female officer, a 19-year-old newcomer at Sliema police station, the accused admitted that he was “somewhat infatuated” and was attracted to her.
Asked about two particular incidents of sexual harrassment about which the teenager testified earlier on at the trial, the accused confirmed that he had joked about his hand slipping off the gear lever when she once sat next to him in the service car.
But he denied making physical contact.
Nor had he offered her a massage on another occasion when she complained to him about her backache.
He also denied inviting her on a weekend break, insisting that he had only suggested meeting up. He did not deny complimenting her about her looks.
His other female colleague with whom he said he had had consensual sex, once remarked about his attention towards the newcomer.
“Ħeqq! What’s wrong with that? She’s pretty, no,” he had replied.
“I don’t know,” the alleged rape victim responded.
However, since the time of those allegations, everything had changed, the accused explained under interrogation.
“I was going through troubled times and I was very weak. I gave in. I fell for her as anyone else might. But I feel nothing in her regard,” he said, when asked about the alleged rape.
He said he was sorry if he hurt her by fancying someone else.
As for the other woman he had allegedly harassed, he was over her too because he had since patched things up with his girlfriend, he told officers.
“I just wish to get on with my life and work. I don’t want this trouble,” he concluded.
AG lawyers Angele Vella and Darlene Grima are prosecuting.Lawyers Edward Gatt and Franco Debono are defence counsel. Lawyers Lara Dimitrijevic and Stephanie Caruana are appearing parte civile.