In the name of public morals and decent behaviour?

Inconsistency in evidence, the use of identical language and an obvious element of vengeance should be taken into consideration by the court prior to delivering judgment, lawyer Lucio Sciriha argued in defence of Marco Borg, who stands accused of assaulting two young women last year.

The case, dating back to 3 February 2012, made news when it was described by sections of the media as a possible case of homophobia. Borg, 44, of Birkirkara, was arraigned in court and charged with attempting to grievously injure two young women, causing them slight injuries and relapsing. The alleged victims were aged 17 and 21. He was granted bail against a personal guarantee of €1,000 and subsequently lost his job. However the defence contended that the accused had stood up for morality after the two women started kissing on a public bus.

Borg, who at the time was employed as a bus driver, took the witness stand and explained how he was going home as a passenger on the Naxxar route after his shift ended. When the bus got to Msida, two female passengers started kissing. Borg assumed the two were lesbians and told them to behave properly in public. Moments later he again pointed out to the two youths that the bus was full of young schoolchildren and their actions were scandalous. "Can you behave decently on a public bus? Or just don't sit next to each other," Borg told them. The accused held that he had spoken to the women in a polite manner and at no time had he been aggressive.

The bus driver, Maurizio Polidano, corroborated Borg's testimony and did not recollect any physical fighting. The on-board CCTV also substantiated Borg's version of events: the footage shows the two youths standing against the inside of the bus and Borg holding out his left arm defensively, while he lifts his right arm in a threatening position. No part of the footage shows Borg assaulting or punching the young women. Other passengers also testified that Borg asked the youths not to kiss in front of people and to behave properly.

By the time the bus arrived at Sarrija, Floriana, the dispute had escalated. One of the youths lashed out at the accused, saying she lived in a democratic country and could do as she pleased. The youths and the accused rose from their seats and confronted each other face-to-face. The bus driver stopped and asked Borg to get off the bus. The accused agreed and left the vehicle in a calm and orderly manner. However, though claiming they were scared and frightened of Borg, the women chose to get up and follow him off the bus.

"Since when do frightened people leave the safety of the bus to get closer to the man who allegedly assaulted them?" the lawyer demanded, continuing, "What they were after was revenge for the verbal argument that had taken place on the bus."

When Borg got out of the bus and turned to wave to his colleague, the girls stood right behind him. What followed is unclear. The accused claimed the women grabbed his shoulder and as he turned, they lost their footing. The women claimed Borg assaulted them and threw them to the ground. In the scuffle that followed, the three suffered slight injuries, but Borg did not seek medical help, as he thought nothing of the incident. While both women presented medical certificates, the accused only exhibited photos of scratch marks around his neck.

The defence pointed to a recent court judgement which had ruled that, in order to find an aggressor guilty of attempting to cause grievous injuries, the prosecution must prove that the aggressor had a premeditated intent to injure his victim grievously. This had not been proven in court, Sciriha said.

Sciriha explained that, years prior to the incident, the accused had been involved in a work accident, which had left him suffering from partial disability. The accident had also affected Borg's reasoning abilities. This was reinforced by the report of an orthopaedic surgeon, who stated that Borg had lost articulation in his left arm. When Borg had moved his left arm between himself and the alleged victims, he did so as an act of self-protection and not to force the latter against the bus. "He could not block or use force with his left arm, as he is medically unable to do so," the lawyer told the court.

In the first court sitting, the two young women took the witness stand. Their behaviour in court earned them severe reprimands from Magistrate Neville Camilleri (but the court's recording system failed and there are no records in the proceedings of the exchanges). In the following sitting, the women were cross-examined by the defence, which repeated the questions asked in the previous session. The defence claimed that both the alleged victims had attended court after rehearsing their replies. "Their identical, parrot-like answers prove the two had pre-agreed on what to say," Sciriha said. "This makes their evidence unreliable."

When asked what they understood when told to behave decently in public, the two replied identically: "That phrase means nothing to me." Yet the two disagreed on a number of details. While one claimed they were pushed, the other said they were grabbed and pulled down; and only one of the alleged victims recalled the accused saying he was 'scared of nothing and no one'.

The defence argued that the accused was in his own way following the rules set down by his employer. He assumed that through what he interpreted as immoral actions, the women had scandalised the passengers on the bus, the majority of whom were children and students. He had acted to stop the immorality.

"Circumstances do not lie but they may deceive," Sciriha said, pointing out that the two youths had taunted and provoked Borg incessantly, yet the screen grab exhibited by the prosecution simply showed the accused with his hand raised in a threatening gesture. The defence concluded that the accused, a man who, notwithstanding his limitations, had tried to abide by company rules and uphold decent behaviour had finished in the dock accused of intentionally injuring two women.

Magistrate Neville Camilleri is expected to deliver a judgement at the end of January 2014. Inspector Kylie Borg is acting for the prosecution.