Statements released by two men, still to face trial over the alleged murder of Albert Brian Rosso back in 2005, have been declared inadmissible in evidence.
Anthony Bugeja, 54, and Piero Di Bartolo, 48, stand accused of murdering Rosso after an argument broke out between the victim and Bugeja over a fishing vessel they co-owned.
On October 10, 2005, Rosso reported for work at the San Luċjan Aquaculture Centre before going to meet his business partner.
Afterwards, Rosso was reported missing.
Police investigations led to the arrest of Bugeja and Di Bartolo who were subsequently charged with wilful homicide, possession of a firearm while committing a crime against the person as well as disposing of the corpse.
The prosecution claim that a violent row broke out when Rosso met Bugeja outside his Marsaxlokk home to discuss some issue concerning their fishing vessel, Desiree, which was manned by Di Bartolo.
Bugeja allegedly fetched a firearm and shot Rosso in the presence and in agreement with Di Bartolo, by way of doing away with “the problem”, claimed the prosecution.
The suspects then allegedly placed Rosso’s body inside a sack, transported it out to sea and dumped their load near the freeport, weighing down the sack by tying it to stone blocks.
The body was never retrieved.
Upon their arrest over 16 years ago, Bugeja released three statements while Di Bartolo released four.
At the time, suspects under Maltese law had no right to legal assistance in the pre-arraignment stage, both prior, as well as during, interrogation.
In this case, both suspects were not cautioned when releasing their statements.
Although the right to legal assistance was envisaged at law, it was only given effect on February 10, 2010 when a suspect was granted the right to consult a lawyer for one hour at most prior to interrogation.
In 2016, that right was extended to include legal assistance both prior and during a suspect’s interrogation.
Delving into local and European jurisprudence, the Criminal Court, presided over by Madam Justice Consuelo Scerri Herrera, observed that the legislator could not be expected to indicate all circumstances as to when particular evidence was admissible.
The probatory value of any particular evidence was always at the court’s discretion.
Although one line of judgments stated that statements were inadmissible when a suspect was not assisted, other judgments held that this was not automatically so, adding that the issue was to be decided in light of the overall fairness of the proceedings.
Maltese courts have often delivered divergent interpretations, said Madam Justice Scerri Herrera making reference to conflicting judgments delivered by the Court of Appeal and the Constitutional Court even on the same day.
Legal certainty was a very important principle, went on the court.
Drawing a conclusion, the court said that although each case was to be assessed on its own merits, the recent trend appears to declare as inadmissible those statements released prior to February 2010.
Such statements given without any legal advice could result in irremediable prejudice for the accused.
The same could not be said for statements released after February 2010 when a suspect could have some form of legal assistance, even if limitedly so.
In this case, the answers given by both accused, even though cautioned, could result in prejudice especially when read by those who would eventually be called to judge them.
In light of such considerations, the court ordered the removal of those statements and any reference thereto from the records of the case.
Lawyers Franco Debono, Arthur Azzopardi and Andy Ellul were counsel to Bugeja. Roberto Montalto was counsel to Di Bartolo.
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