Men acquitted of drug trafficking in duplicitous murder plot

A court of appeal has confirmed the acquittal of two men who were charged with drug trafficking on the basis of confessions made without a lawyer present.

In 2001, Sandro Psaila and Saviour Azzopardi had arranged to meet an Italian person at a pre-planned rendezvous at sea, to exchange drugs with cash they had collected from the accused Raymond Bonello.

Bonello, in turn, would have collected the money from other persons involved in the criminal enterprise, through his co-accused Publius Micallef.

It emerged, however, that Psaila and Azzopardi’s real intentions had not been the importation of the drugs, but to steal the Lm32,000 cash payment for the drugs from Bonello after killing him when he arrived with the money.

Neither Bonello, nor Micallef had any inkling of this plot. Meanwhile Psaila and Azzopardi had changed their minds about the plan to import the drugs and therefore the Italian person who was supposed to deliver them remains unknown.

Bonello, Micallef and the other conspirators - amongst them Joseph Grech, now deceased - were unaware of the change of plans and had in fact, insisted on ascertaining that the importation went ahead. The importation did not go ahead, however.

During the compilation of evidence against the accused, it emerged that the police had been intercepting their phone calls for some time and had intervened before the drugs were handed over to prevent Bonello’s murder.

The accused had argued that as their intention was to murder Bonello and take the money, they had not, in fact, intended to import drugs, as per the charges against them.

Micallef and Bonello had been acquitted by a magistrate’s court, of conspiracy to traffic cocaine due to lack of evidence, in part because the drugs never arrived in Malta. Moreover, incriminating statements had been taken without a lawyer being present - legal at the time but disqualified under a now well-established principle of human rights law.

The Attorney General appealed, arguing that evidence of a plan or common design sufficed for the crime of conspiracy to subsist.

“Under our law the substantive crime of conspiracy to deal in a dangerous drug exists and is completed from the moment in which any mode of action whatsoever is planned or agreed upon between two or more persons,” argued the public prosecutor, insisting that the fact that the men had persisted in carrying out the plan, whatever their intention, meant that the conspiracy still existed.

The plan had reached an advanced stage of execution, argued the AG. The phone intercepts, although drugs were not mentioned, were also indicative of the intricate arrangements made by the men.

The court of appeal, presided by judge Edwina Grima noted that although the drugs and money had not changed hands, this did not preclude the offence of conspiracy to traffic drugs.

However, despite the fact that the prosecution had relied heavily on phone intercepts, no expert had been brought in to examine the mobile phones seized by the police and establish whether they had been used to make the calls in question.

The court said that this was likely due to the prosecution planning on focusing more on the men’s confessions during police interrogation, which were however ruled inadmissible due to the lack of access to a lawyer.

“The first Court could never, in the light of [legal developments] in local Criminal law, take cognizance of any confession that the accused had made back in 2001 when they were arrested and interrogated by the police because that confession was released at a time when our law systematically precluded suspects from legal assistance during interrogation…”

It noted that this structural legal anomaly had since been rectified by the transposition of the relevant EU law into local legislation.

Without these confessions, the court said, the evidence was scarce. “It would be dangerous indeed for the court to rest upon [confessions] to find guilt in a person accused, who had incriminated himself without adequate defence and therefore at risk of a breach of his right to a fair hearing.”

It would also be dangerous to rest on the testimony of accomplices who, for various reasons, the defence never had the opportunity to cross-examine, said the court.

For these reasons, the court rejected the Attorney General’s appeal and confirmed the men’s acquittal.

Lawyer Kathleen Grima defended Raymond Bonello. Publius Micallef was defended by lawyer David Farrugia Sacco. Inspector Norbert Ciappara prosecuted.