Police officer acquitted of raping colleague to be retried

A former police officer who, last March, was acquitted of raping a colleague at the Msida police station is to undergo a retrial, after three judges presiding the Court of Criminal Appeal declared that his acquittal had been affected by a “grave irregularity” during the trial, which had led to justice not being served. 

The police officer, whose name is subject to a court-imposed publication ban, had been accused of raping one female colleague and sexually harassing another. The court had been told that he had engineered his shift patterns to better his chances of ending up alone with the victim at the Msida police station. Prosecutor Angele Vella had told the Criminal Court, presided by Madame Justice Consuelo Scerri Herrera, that the man had felt ‘untouchable’ and able to do anything because he was in uniform.

But in March, the judge had acquitted the man of rape, after expunging the first statement he released to interrogators, in which he had admitted to the crime.  The judge ruled that the statement was inadmissible as evidence because he had been administered the wrong caution by his interrogators - his lawyers having claimed  that before questioning started, he had been warned that inferences could be drawn from any failure to reply to questions, instead of being told that he had the right to remain silent.

In the end, the man was only found guilty of sexually harassing a second teenage colleague, for which he was handed a suspended sentence.

In an appeal filed in June, the Attorney General urged the court to overturn the judge’s decision to acquit the defendant, arguing that his confession had been expunged from the acts in an irregular manner and that the judge had made inappropriate comments, observations and inferences about the victim in her conclusions. The AG argued that the Criminal Court had made a “manifestly incorrect application of the law,” in conclusion that in order for the offence of rape to subsist, the victim must have resisted sexual intercourse, “and this when the element [of resistance] is not needed at law, because the lack of consent suffices for the finding of guilt.”

That appeal was upheld this morning by the Court of Criminal Appeal, presided by Chief Justice Mark Chetcuti, Madam Justice Edwina Grima and Mr. Justice Giovanni Grixti.

The judges observed that before his first questioning session, the defendant confirmed that he had been given a copy of his legal rights and that he had the right not to reply to questions and that what he chose to say would be used as evidence in court. He had been assisted by a lawyer all the while and at the bottom of the statement was a warning that the court could draw inferences from any facts he might state in court but which he had not declared during interrogation.

In addition, the defendant himself had declared that he had been given the right to remain silent and that anything he said could be used as evidence against him, as well as that he had consulted with and was accompanied by a lawyer before starting the statement.

The appeal court judges ruled that the way the defence had raised the plea of inadmissibility of the statement “was entirely irregular and contrary to the dispositions of criminal law,” pointing out that the Criminal Code gives accused persons a 15-day timeframe to give notice of their pleas, including about admissibility of evidence.

“This is precisely why the compilation of evidence takes place…so that the person accused would know beforehand what evidence the prosecution intended to exhibit and whether they are in conformity with the law.”

There was no doubt that the statement which the defence sought to impugn at trial stage did not land in its lap right before, said the judges, “and neither can the defence contend that it could not have noticed it earlier, because this piece of evidence had been in the hands of the defence from the very beginning of the proceedings.”

The Criminal Court should have first decided whether or not to permit the plea to be made at such a late stage, when the trial had almost reached its end, and then, only if that permission is granted, allow the defence to debate that point, “and this is because the guide rails for the criminal action would be shifted by this defence request, which goes against every procedural rule.”

“But not only did the Criminal Court not follow the law of Criminal procedure, but its final decision was also not based on facts which had emerged during the trial.”

While it was true that the date printed on the statement indicated that the caution administered was not in accordance with the law in force at the time, the Criminal Court should not have stopped there when assessing the legality of this crucial document, said the judges. 
The caution was not simply a field on a form that required a signature, but had to first be verbally explained by the interrogator to the person being interrogated, said the judges. 

“The fact that before releasing his first statement, the defendant had been given all his legal rights is not contested. It doesn’t appear, therefore, that in the space of 24 hours, the defendant had reason to believe that the law had changed overnight and that the rule of inference had started to apply to him anew!”

He had also consulted privately with his lawyer before, and was accompanied by his lawyer while releasing his second statement. That statement had not been recorded on video, also at the suggestion of his lawyer.

Inspector Joseph Busuttil, who had interrogated the defendant, had testified that the incorrect date on the written statement and the wording of the caution had been the result of him using an outdated template by mistake.

“So therefore, that which the Criminal Court should have done when faced with this request by the defence, after deciding on whether or not the plea was admissible at the advanced stage of the trial, had been to examine the evidence brought before it and not simply rest on the words written at the start of the statement, more so when it was evident that in the first place the defendant had already been administered the caution before he released his fist statement, a caution which he never contested, was assisted by his lawyer at all times and had even consulted with him privately before.”

The defence had not felt it necessary to clarify this issue when cross-examining the prosecutors on the witness stand, but had waited for the prosecution to declare its evidence closed before raising this objection, when it was too late for the other party to contest it. 

“The Criminal Code erred when it disregarded evidence that, as emerges from the acts of the case, had been valid evidence at law and that the defence’s contestation had been entirely unfounded.”

“It is certainly not conducive to the correct administration of justice that a party in criminal litigation is met with a surprise request for the expunging of evidence at an advanced stage in the proceedings, when this evidence had been in its hands from the very beginning and, given every opportunity in the law to contest it, had remained silent until the moment when it would be too late for the prosecution to rebut the request.”

“Above all, although ‘the person accused has a right to a fair hearing, this fair hearing while protecting the presumption of innocence of the person accused, must also be fair with the society which had been outraged by the crime.”

Finally, the judges said that they could not fail to observe that if it had been true that the wrong caution had been administered, this would have been picked up by the lawyer assisting him during questioning - a right which was not in force at the time when the inference rule applied. “To this Court, it is evident…and this beyond all doubt, that the defendant had at no time been administered the caution as erroneously written down by the interrogator."

For these reasons, the court upheld the AG’s appeal and declared that a grave irregularity had taken place during the trial, which had effected the final verdict and had led to a failure of justice. The court revoked the Criminal Court’s decision to expunge the man’s first statement and ordered that it be readmitted in the acts of the case, which it sent back to the Criminal Court for a retrial, with the defendant remaining on bail under the same conditions he had been under before his acquittal.