The daily application of criminal law sees the parties to a lawsuit, that is the prosecution, the defence and, ultimately, the Courts of Criminal Jurisdiction, applying not only the strict dictat of the Criminal Code but also legal principles which are considered part and parcel of any criminal law justice system based on the principles of rule of law.
Some of these legal principles are enshrined in the Criminal Code itself, others can be deduced from the Code itself, yet others − without being written in law − are still considered to be foundation pillars of any criminal law justice system worth its salt.
Chief among such principles is found in the Latin maxim: Actus Non Facit Reum Nisi Mens Sit Rea. This maxim states that a person is guilty of a criminal act only if such acts are accompanied by a criminal intention. This is the general rule.
Yet, exceptions to the rule exist.
In the evolution of criminal law, a new branch of this law, known as administrative criminal law, sees the creation of crimes whereby for there to be a finding of guilty, the prosecution need not prove the accused’s criminal intention. The prosecution need only prove the act done.
Administrative criminal law sees the application of what is known as strict liability, whereby the wrongful act being attributed to the person charged would have fallen foul of a specific law intended to curtail specific wrongdoing.
Undoubtedly, one might opine that the clearest example of such a specific law in our case is the VAT Act, Chapter 406 of the Laws of Malta. This law clearly sets forth very specific obligations on who needs to be registered for VAT purposes. Once a person, both natural and legal, so complies, several obligations are imposed upon it by operation of this law and any violation thereof, renders the registered person guilty of a criminal violation of the same law.
For there to be a finding of guilty in terms of the VAT Act, the courts do not need to consider whether the person charged would have acted with criminal intent or otherwise. These crimes are of strict liability. The court needs to consider whether, the wrongful act being attributed to the accused, by the prosecution, has occurred or not.
Cases of strict liability though do not nullify other obligations that the prosecution has, such as its duty to prove beyond reasonable doubt that the accused is guilty.
On April 29, 2022, the Court of Criminal Appeal, presided by Justice Dr E. Grima, in appeal 450/2021 in the names ‘Il-Pulizija vs Clint Debono’ dealt exactly with such a situation.
Article 82 of the VAT Act places upon the registered person very limited circumstances when he or she may not be found guilty for acts of commission or omission done by their employees
The facts of this case resulted from a physical on-site unannounced inspection carried out by VAT Department enforcement inspectors on February 10, 2019, at La Bottega Art Bistro in Merchants Street, Valletta.
The VAT enforcement officer testified that, on the day in question, she had personally witnessed an employee working within this establishment selling food and drink to a customer for a combined value of €10. The same enforcement officer further confirmed under oath that the employee did not issue a VAT receipt to the customer and such a VAT receipt was only issued to the customer by the employee when the latter was so ordered by the VAT enforcement officer.
The employee complied and same receipt, which is a legal obligation imposed upon all registered persons in terms of Chapter 406, was then retained by the enforcement officer and presented as evidence in court.
Debono was accused for having failed to abide by the legal duties imposed upon him by the VAT Act since an employee of his failed to issue a receipt as afore explained. Debono was not physically present in the establishment throughout the service given to the customer nor when the VAT enforcement officer entered the premises.
The Court of Magistrates had declared Debono not guilty of the charges proferred against him. The Attorney General appealed. The Court of Criminal Appeal upheld the appeal filed, proceeded to quash the judgment of the Court of Magistrates, then declared Debono guilty and punished him to pay a fine of €700 – the minimum possible at law.
The Court of Criminal Appeal declared that article 82 of the VAT Act places upon the registered person very limited circumstances when he or she may not be found guilty for acts of commission or omission done by their employees.
Article 82(2) of Chapter 406 of the Laws of Malta states that:
“Where anything is done or omitted to be done by an employee in the course of his employment, or by any person acting on behalf of the registered person, whether such other person is an employee or not, the provisions of this part [of the law] shall apply as if such thing were done or omitted to be done both by the said employee or other person and by the employer or registered person: provided that such an employer or registered person shall not be guilty of an offence in virtue of this sub-article if he proves that he was unaware and could not with reasonable diligence be aware of such an act or omission and that he did everything within his power to prevent that act or omission”
A tough level of evidence to reach and present.
The Court of Criminal Appeal agreed with the reasoning put forward by the Attorney General in that if the “employee” was not an employee of Debono, Debono himself had to prove this point according to law. The lack of a Jobsplus representative testifying as a prosecution witness to confirm the employment of the cashier at the time of inspection, does not of its own accord and could not lead to Debono’s acquittal.
The Court of Criminal Appeal declared that once the employee handled the transaction on behalf of the establishment and the customer, received the money on behalf of the customer and actually proceeded to issue the relative VAT receipt when so ordered by the VAT inspector, all this led to a iuris tantum presumption that she was the responsible person for the establishment and thus an employee of the registered person Debono. A praesumptio iuris tantum is an assumption made by a court that is taken to be true unless someone comes forward to contest it and prove otherwise.
Debono failed in this regard not only in disproving that the employee was an employee of his but also that if she was an employee of his, he had prior to the inspection been duly diligent to ensure that his employee does not commit such a wrongful act of omission. A wrongful act of omission that cost Debono €700 over a sale having a gross value of €10.
Arthur Azzopardi is managing partner at Azzopardi, Borg & Associates Advocates.