Vicarious liability in charge sheet must be indicated

A person who is being charged with a crime committed when holding a position in a company, must have this indicated in the charges brought again that person. This was held in a judgement handed down by Magistrate Joseph Mifsud on 5 July, 2017, in The Police -v- Anthony Zammit and Michael Zammit.

The Zammits were charged with being in possession and distributing gasoil illegally. 

The case referred to when the Zammits had purchased gasoil from EneMalta, in the presence of the Customs officials in July 2010 and it was transported from Malta to a licensed warehouse in Gozo. Part of the gasoil was put in a bowser owned by Anthony Zammit. The Customs certificates were given in April 2005 and valid for five years and therefore expire in April 2010. Due to changes in the tariffs, there was no agreement on the guarantees that were to be paid. There seemed to be an informal arrangement that those licensed were to continue with their activity by using the expired certificates.

The Court criticized the length of time the case took. The Court quoted from a previous judgement The Police -v- Anthony Azzopardi decided on 4 February, 2010. In that judgement the court had held that criminal cases are to be finalised as quickly as possible and this in the interest not only of the accused but also in the interest of society.

Magistrate Mifsud pointed out that the onus of proof lies with the prosecution. The fact that there are two conflicting versions does not necessarily result in the accused being found not guilty, since the judge may discard one of the versions. 

The Court then dealt with the opinion of the expert it had engaged. The Court quoted from The Police -v- Akram Amar Swayah of 8 May, 2006, where the court held that Article 656 of the Criminal Code stipulates that the Court is not bound to the opinion of the court expert. This was the position of the Constitutional Court in The Police v George Xuereb decided on 25 February, 2011 and other judgements. In this case the expert, Prof Alfred Vella had concluded that all the fuels examined are gasoil. Two samples did not contain National Marker and therefore, were duty free. Other samples had National Marker, they were not according to the legal norm. 

The Court examined the individual charges brought against the accused. The first charge allegedly breached Articles 62 of the Customs Ordnance, which deals with the storing of illegally imported goods. Magistrate Mifsud pinpointed the interpretation of the word “knowingly”. The Court quoted from a British judgement which listed types of degrees of knowledge, the first being the actual knowledge, then there is constructive knowledge, implied knowledge. From the evidence produced it resulted that although the Customs Department were not informed on the movement of the fuel, this does not necessarily mean that the movement took place in order to avoid tax. 

Another charge concerned the loading of 1,020 litres of gas oil in a bowser without being accompanied by the necessary documentation. The Customs Officer testified that when he inspected the bowser he noted that the bowser had the wrong sign. It carried the Duty Paid sign, when the gasoil was duty free, however, the bowser uses both types of fuel. According to Article 28 of the Excise Duty Act, the bowser should be registered to carry fuel and should be marked. The Court made reference to the civil court case Anthony Zammit and Salvu Sammit and Sons Limited -v- Director General decided by Mr Justice Anthony Elul on 3 October, 2014, who held that a bowser registered as a tax storage, should carry no gasoil which has paid its customs duty. The Customs Department failed to make reference to the correct regulation that allows it to seize the bowser, when it carries paid duty fuel. The problem was not that the bowser should not carry gasoil which had its duty paid, but that it had a sign saying “Duty Free”. 

On the vicarious liability of the accused, the court pointed out that the charge sheet read that they were personally being charged and as representatives of Salvu Zammit & Sons Limited. According to Article 13 of the Interpretation Act, when a crime is committed by a company, then the directors, managers, secretary and officials of the company may be found guilty of that crime. The Court quoted from The Police -v- Joseph Bonnici of 26 May, 1995, in which he Court of Appeal held that there must be an indication that the accused is being charged with a crime committed by a company. From the evidence produced it is clear that Michael and Anthony Zammit left operational matters in the hands of their employees and therefore should not be punished for mistakes made by their employees.

Another charge concerned the transfer of 1,480 litres of gas oil to the Comino Boat and to a certain Cisju Azzopardi. The court expert held that this amount should not have been transferred, but the Customs Department’s analyst, said that samples taken did not show any illegalities. 

The Court declared the two accused not guilty of the charges brought against them.

Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates