Acquitted of drug charges because possession was not amply proven

Robert Busuttil was acquitted on appeal of drug possession charges, after a magistrate's court handed him a 12-month conditional discharge in April 2013.

The case dates back to 20 December 2007, when a passer-by informed an Armed Forces soldier on duty at the American Embassy in Attard, that three male youths were acting suspiciously in a public lavatory.

Upon entering, the soldier witnessed the surprised youths flushing what they had in hand, but he managed to salvage a sachet from being destroyed. The sachet was handed over to police investigators and tests revealed that it contained cannabis resin. The three youths were charged with simple possession of cannabis resin.

Dr Michael Sciriha, on behalf of Busuttil, appealed the judgement, arguing that his client had been denied legal assistance at investigation stage, when he admitted his guilt.

While this does not invalidate his guilty plea, case law quoted by the prosecution was interpreted incorrectly by the court. Evidence showed that the accused and another person were apprehended while in a public toilet for women, where a piece of cannabis resin was found. This evidence did not prove beyond reasonable doubt that the drug was in Busuttil's possession.

"Maltese law does not cater for collective guilt hence a guilty judgement based on this evidence is unsafe and unsatisfactory," Sciriha said.

Taking into consideration that the appellant was a minor when the offence happened, Mr Justice Michael Mallia said the police should have treated him as a vulnerable person during their investigations. "Given the lack of legal assistance, his guilty plea in his statement cannot be considered in isolation, but need to be backed by evidence beyond reasonable doubt," the court said.

Given the AFM gunner's evidence that the three youths were found together at the same time, the prosecution failed to prove that the drug was strictly in Busuttil's possession. Judge Mallia acquitted Robert Busuttil and revoked his conditional discharge.

Inspector Kevin Farrugia prosecuted while lawyers Michael and Lucio Sciriha appeared for the accused.