Man convicted of forgery in waste collection contract, alleges prejudice by magistrate

A businessman who received a suspended sentence for using forged documents while bidding for a tender, has claimed that the magistrate who originally found him guilty had expressed prejudice against him, thereby breaching his fundamental rights. 

This emerges from an application filed today before the First Hall of the Civil Court in its constitutional jurisdiction by Adrian Muscat. 

In separate proceedings in July 2022, the directors of Waste Collection Limited, 39-year-old Muscat and his father Marius Muscat, 64,  had both been accused of fraud and using a false document to bid for a €335,300 contract. Marius Muscat had been handed a 16-month sentence, suspended for 18 months, while Adrian Muscat received a 22-month sentence, suspended for two years. The sentences were confirmed by the Court of Criminal Appeal in May.

Although separate, the cases against the two men, accused as principal and accomplice, respectively, had moved in tandem and the Muscats were “always taken to be co-accused,” reads the court application. This affected the admissibility of their testimony against each other.

In November 2021, Adrian Muscat’s lawyer Matthew Brincat had requested the recusal of Magistrate Donatella Frendo Dimech, which the magistrate had refused. He subsequently repeated his request at appeal stage, asking for the case to be declared null and sent back to the Court of Magistrates for a retrial.

In the court application, Muscat’s lawyers argue that the fact that both the Courts of Magistrates and the Court of Appeal operate out of the same building “did not augur that he would receive a fair hearing and that his right to appeal would be truly separate and distinct from the first court’s pronouncements.”

Muscat is accusing magistrate Frendo Dimech of having “expressed her views a priori” during a sitting, by inviting Muscat to reconsider his position, “as it would be better for him to enter an early guilty plea to all the charges against him.”

The application goes on to state that before the Court of Criminal Appeal,  Muscat had alleged that the magistrate had confronted him about his request for her recusal in the corridors of the court building, suggesting he withdraw it.

“He insists that the first court should have properly considered his request for recusal, because itself, by its lack of silence, had expressed itself about the guilt of the accused at an early stage, when the Prosecution had not concluded their evidence.”

The application goes on to state that jurisprudence about recusal requests had established that justice must be done and be seen to be done.  As the ordinary law did not provide a remedy in cases questioning judicial impartiality, Muscat’s lawyers invoked the Constitution and the European Convention Act “to provide an opportune remedy if justified.”

Lawyers Franco Debono and Matthew Xuereb signed the application.