Man acquitted over 2014 drug trafficking charges

A court has acquitted a man of drug trafficking charges dating back to 2014, in a judgement slamming what it said was the prosecution's practice of exhibiting all the evidence it collected, leaving the court to do the sifting. 

In a judgement handed down by Magistrate Natasha Galea Sciberras this morning, 39-year-old Trevor Borg from Bormla was cleared of trafficking cannabis, cocaine and heroin, breaching bail conditions, and relapsing.

Borg had been arrested in 2014 together with Brian Godfrey Bartolo, after police officers acting on a tip off had observed Bartolo buying drugs from Borg near a roundabout in St. Paul’s Bay.

When the men spotted the police closing in, Bartolo had started swearing at Borg, accusing him of framing him and selling him out to the police by carrying out a controlled delivery.

In Bartolo’s car, the police had discovered a “sizeable” bag of cannabis, samples of cannabis and heroin and a small sachet of cocaine. A considerable amount of cash was also found in a pouch belonging to Bartolo. A Makarov pistol was amongst other items discovered at his residence.

Both men had given statements to the police after refusing to consult with a lawyer. The statements were later confirmed on oath before magistrate Carol Peralta. 

In his statement, Bartolo had admitted to agreeing to meet Borg, known as il-Bonc, to sell him drugs. Borg was then to sell the cannabis to a third party and make a €50 profit.

Borg had chosen to testify in the proceedings, explaining how he had agreed to meet Bartolo in order to settle a debt which was the subject of a pending court case between them about damage Borg had caused to Bartolo’s garage door.

But as soon as he had handed the money to Bartolo, through Bartolo’s car window, the police had moved in and arrested them both.

Under cross-examination, Borg denied knowing about the drugs and had never seen drugs before in his life, replying that he did not know why Bartolo had started shouting about a controlled delivery during the arrest.

In a decision handed down earlier today, Magistrate Natasha Galea Sciberras, after carrying out a detailed examination of case law dealing with the probative value of unassisted statements made to the police during interrogations, ruled that the defendant’s one should be disregarded, even though it was not incriminatory, as it could still impinge on his credibility. The same applied to the parts of the prosecuting officer’s testimony dealing with Borg’s statement.

The magistrate said that Bartolo’s testimony against Borg in the proceedings also had to be discarded because he was still co-accused with Borg in the proceedings at the time, he gave it. The Criminal Code specifically states that a co-defendant is not competent to testify against the other defendant.

With respect to the remaining evidence, the court said it did not believe Borg’s explanation that the cash was for the damaged garage door, pointing to Bartolo’s instant suspicion of having been set up by the defendant amongst other things.

“Had Bartolo and the defendant simply met in connection with the garage, as the defendant testified, then there would have been no reason for Bartolo to say these words to the defendant, which words can only mean that Bartolo knew that the defendant was aware of presence of drugs in Bartolo's vehicle and that this or part of it was destined for the defendant.”

However, said the court, in order for the offence of criminal conspiracy to subsist, it had to be proven beyond reasonable doubt that the people involved intended to carry out the transaction and had agreed on the details.

In this case, although the court said it was confident that there had been an agreement between the defendant and Bartolo to acquire an amount of illegal drugs, the fact that the defendant was going to acquire them from Bartolo did not necessarily mean that the vague agreement constituted the offence of criminal conspiracy. The law required that the evidence of such a conspiracy be such that it “cannot but be interpreted as pointing towards the existence of a conspiracy,” noted the magistrate.

Neither had any unequivocal evidence of the crime been found on the various electronic devices seized by the police from the accused, said the magistrate.

Examining electronic devices is the prosecution’s job, not the court’s, stresses magistrate

The magistrate also remarked that the practice, adopted by the Prosecution “in every case”, of dumping the content of such devices before the Court and expecting the Court to investigate and establish whether any evidence to substantiate the charges “must stop immediately.”

“The responsibility of finding the evidence falls to the Prosecution and not the Court, and the Prosecution does not prove its case by simply dumping a large amount of data before the Court and then expecting the Court itself to sift through it to find what may be relevant to the case. The Prosecution’s job does not stop with the appointment of the court expert who downloads the content form the electronic device, but after this it is up to the Prosecution to examine the contents and indicate to the Court what is relevant to the case.”

The court acquitted Borg of all charges.

Lawyers David Gatt and Franco Debono were defence counsel.