Court rejects request to declare Lilu King arrest invalid

A magistrate has rejected a bid to have the arrest of Libyan boxer and alleged drug dealer Mohammed Ali Ahmed Elmushraty declared illegal, after the prosecution substituted the charge of slight bodily harm to grievous.

The decision was taken by magistrate Kevan Azzopardi in the most recent case against Elmushraty, who is the accused in a number of ongoing cases. 

Police Inspector Eman Hayman, prosecuting, asked the court to permit the prosecution make an amendment to the charges, explaining that although the victim’s injuries had initially been classified as slight, the medical expert who had been appointed by the court to examine both the alleged victim and the defendant, at the defence’s request, had reported that the victim suffered broken bones in his leg and one of ribs, which translated into grievous injuries. Elmushraty had suffered slight injuries, he added.

When called to stand, the expert explained that the Floriana health centre, where the victim was initially examined, was not equipped to carry out X-rays. When the victim was subsequently X-rayed in hospital, he was found to have suffered a broken leg and a broken rib.

This changes everything, observed the magistrate, because while the Court of Magistrates could decide a case of slight bodily harm, grievous bodily harm exceeded its remit. 

Elmushraty’s defence lawyers Jose Herrera and Franco Debono argued that the proceedings had to start afresh and the charges read out again. They insisted that if a plea was not going to be entered today because the case must be reassigned to a compiling court, Elmushraty “must immediately be released from arrest,” argued Debono, pointing to the Andre D’Amato case where, he said, “the same thing had happened.” 

Inspector Hayman argued that a request for bail had already been made during the arraignment and reminded the court that it had been the defence who requested the expert to examine the victim.

Debono dictated a note: “on the change in charges, the defence argues that it is at the discretion and prerogative of the police. But the defence also argued that once the charge, as corrected or changed must be read out again and a plea entered anew before a competent court. As this court is not competent, this arrest is now invalid.”

The lawyer added that the original arrest would be on the strength of a warrant issued by the duty magistrate or in flagrante. This is not happening here, so the arrest is invalid.

Inspector Hayman insisted that this change did not render the arrest invalid: “How was this loophole discovered now? The defence had asked for the appointment of the expert and created this loophole, changing the dynamics of the case, which they are now trying to exploit.”

The magistrate retired to his chambers to deliberate on the matter. When he emerged, half an hour later, the court handed down its decree.
“The court has before it a request for the change in a charge, to change the word “slight” to “grievous.” This request was not opposed and the court is therefore upholding it and ordering the requested correction. As a consequence of this, this court no longer has jurisdiction to hear this case and will be ordering that the acts be sent to the registrar to be reassigned. The second consequence of this is outlined in the defence’s allegation that now these proceedings must start afresh, with a different competence - that is as a court of compilation and therefore that the arrest is no longer valid. In doing so, the defence has requested that the defendant be released.

“About this, the court begins by indicating that nothing of the facts have been changed by this correction. The crime remains an offense against the person, the change only being that the nature is more serious than originally thought….”

“This emerged from the opinion of the medico-legal expert, who testified that the injuries turned out to be grievous. The arrest had been convalidated during the defendant’s arrest…Because, as already said before, nothing has changed in all this, the court does not find any reason to declare the arrest to be invalid,” ruled the magistrate, ordering that the acts of the case be sent back to the registrar in order to be reassigned according to law. 

The defence was clearly unhappy with this outcome. “So….” Debono began. “A decree has been given, dottore,” interrupted the court.
Debono informed the magistrate that he would be filing an application of habeas corpus, an action to examine the legality of a person’s detention under arrest. “Do what you have to do,” replied the magistrate.