Soldier's conviction over migrant's fatal beating overturned on appeal

A former AFM soldier who had been jailed for 18 months in February 2015 for attempting to pervert the course of justice had his sentence overturned on appeal on Wednesday.

Lance Bombardier Gordon Pickard, 37, of Zabbar, had been found guilty of tampering with evidence related to the investigation into the death of escaped Malian migrant, 32-year-old Mamadou Kamara, during his recapture in 2012.

Kamara had died in the back of a detention service van, shortly after being repeatedly kicked in the groin. Forensic expert Mario Scerri, who conducted a detailed analysis on the corpse of the 32-year-old Malian migrant, had concluded that Kamara had died as a result of the blunt trauma he sustained, which had triggered a vasovagal attack.

Sergeant Mark Anthony Dimech, 44, of Gzira and Gunner Clive Cuschieri, 29, of Paola are undergoing separate criminal proceedings for his murder.

In 2015, Magistrate Antonio Vella had condemned Pickard to 18 months imprisonment after concluding that Pickard, Dimech and Cuschieri had agreed to falsely claim that the migrant had been struggling violently with them.

Pickard had filed an appeal against his sentence, arguing that the facts of the case did not constitute the crimes he was charged with. The prosecution had argued in court that he had been charged on the basis that the accused had changed his description of the type of resistance that Kamara had offered, the behaviour of Clive Cuschieri and the alleged agreement reached between the five persons involved about what to tell the authorities.

The court noted that the Court of Magistrate’s sentence did not address and placed no emphasis on the precise circumstances that could have led to this crime being committed. “In fact, the considerations of the Court of Magistrates consist of a series of thoughts on how, in its view, the events took place. How those thoughts point to the crime in question remains, with the greatest of respect, a mystery.”

There was no doubt, said the judge, that any alleged agreement on what to tell the authorities could never constitute the suppression of, or tampering with, evidence.

The judge was critical of the emotional dimension the case had taken, pointing out that this case should have easily have been resolved “without lots of emotions that have little to do with proper criminal proceedings,” by declaring that the crime specified in the charges required the suppression, destruction of or changes to material evidence. “False declarations to the police do not constitute this crime. This is a provision that deals with the material traces of a crime.”

There was a great deal of stretching of the imagination involved in the case, the court noted. Pickard had told police at the scene that Kamara had escaped while he was being escorted to the isolation room.

He had told the police that he had gone to look for him in his personal vehicle and had found a struggling Kamara, in the process of being detained by two of his colleagues. After handcuffing the man, the soldiers had taken him to the Paola health centre.

When they arrived at Paola, the two other soldiers had immediately gone to see a doctor because injuries they had sustained while Pickard went to fetch a wheelchair for Kamara. It was then the DSO Frans Scerri had told Pickard that Kamara wasn’t moving.

Before the doctor came down, Pickard told Scerri and DSO Frans Cuschieri that they were to say that Kamara had been struggling in the van and had been aggressive.

Judge Edwina Grima, presiding the Court of Criminal Appeal, held that making a false declaration of what had occurred to the police “can never constitute” the crime of suppression or destruction of evidence and neither could the scenario as envisaged by the court of first instance.

The court said the law was clear when it speaks about hiding material evidence, about concealing, destroying or suppressing clues or circumstantial evidence, such as the murder weapon, fingerprints, blood traces and items used in the commission of the crime.

The Court of Magistrates had said that it believed that Pickard, Cuschieri and Dimech had come up with the idea of saying that Mamadou had struggled with them and that they had dragged the two Detention Service officers into the story, asking for their handcuffs and getting them into the van. The court described Cuschieri and Dimech’s testimony as a “messa in scena” – a frame-up.

The court of first instance had reached the conclusion that the actions of the members of the AFM had been intended as a mise en scene “only on the basis of conjecture and not concrete evidence.”

While the scenario posited by that court “was plausible and the story it told probably made sense,” this did not satisfy the burden of proof beyond reasonable doubt.

There was no evidence proving that the officers had come up with the plan while in the van, the court pointed out, much less that Pickard had proposed it.

During the course of the investigation and in Pickard’s second statement to police, he had given a detailed account of what had actually happened, noted the judge.

This was used to begin criminal proceedings against Cuschieri and Dimech on charges of homicide. “This after the appellant had chosen to withdraw any previous declarations and not obstruct the course of justice. How can the prosecution then charge him with attempting to pervert the course of justice?”