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Matthew Vella
A provision in the drug laws contravening the right to fair trial, has not yet been amended ten months after the Constitutional Court referred its judgement to parliament.
On Friday, Briton Susan Jayne Molyneaux was discharged from criminal proceedings against her after she was accused of conspiring to traffic more than three kilograms of cocaine and over 7,000 ecstasy pills, back in 2003.
She was accompanying Gregory Robert Eyre, who was carrying the drugs consignment, from Spain when the couple was apprehended at Malta International Airport.
The Attorney General withdrew all accusations after the Constitutional Court declared Molyneaux had not been granted the right to fair trial. The prosecution had originally called for life imprisonment and a maximum fine of Lm50,000 if Molyneaux was found guilty.
Malta’s drug laws do not allow those accused of drug trafficking to defend themselves by proving they believed they were in possession of something other than drugs.
According to the Constitutional Court, this provision deprived Molyneaux of the benefit of the presumption of innocence, by being denied a defence which could lead to her acquittal.
Molyneaux was “convinced that something, other than drugs, were being imported illegally, such as money in order to evade tax on currency”, according to prosecution’s bill of indictment.
This indictment led her defence, led by Emanuel Mallia and Giannella Caruana Curran, to raise the plea that holding Molyneaux criminally liable for drug trafficking would run counter to “the basic principles of justice and the provisions” of the Constitution and the European Convention on Human Rights.
Previous courts argued that accused traffickers would find it easy to escape punishment if they deliberately refrain from enquiring about the true nature of what they were carrying, even if they suspected this was something illegal.
The Constitutional Court agreed that a person was guilty even if they were merely aware that what they had brought into the islands was something illegal
However the Court also said this not only deprived the accused of any defence to the charge of possession, but more importantly, deprived the court to “tailor the punishment according to the moral blameworthiness of the accused.”
The Court said that if an accused believed they were importing a pornographic film, but were unaware the cassette was packed with heroin, they would still possibly face life imprisonment when the importation of a pornographic cassette carried a maximum two-year imprisonment.
The Court said the law as it stands still treated the accused as if they “he ‘knowingly’ imported into Malta the drug found in the cassette… This clearly places the accused at a great, indeed disproportionate, disadvantage vis-à-vis the prosecution, a disadvantage that he has absolutely no chance of redressing whatever the evidence…”
In its ruling, the Constitutional Court declared that the fundamental right to a fair trial as guaranteed in the Constitution and the European Convention had been contravened, ordering its judgement to be sent to the House of Representatives.
“Although the legislative has every right to pass the laws it thinks fit… in a state governed by the Rule of Law it is ultimately always the task of this Court to review such laws and to determine finally whether or not Parliament’s approach is in conformity with the Constitution and the European Convention.”
mvella@mediatoday.com.mt
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