Replacement of court expert violated right to fair hearing, court rules

A judge has declared that a decision by the Criminal Court, allowing the Attorney General to replace evidence tendered by a discredited court expert, violated the accused men's right to a fair hearing because the defence had not been made aware of the AG's request

The judge ordered that a copy of this decision be inserted in the acts of the Bill of Indictment against Austine Uche and Kofi Otule Friday in order for the matter to be made known to jurors
The judge ordered that a copy of this decision be inserted in the acts of the Bill of Indictment against Austine Uche and Kofi Otule Friday in order for the matter to be made known to jurors

A judge has declared that a decision by the Criminal Court, allowing the Attorney General to replace evidence tendered by a discredited court expert, violated the accused men's right to a fair hearing because the defence had not been made aware of the AG's request.

The trial by jury of Austine Uche and Kofi Otule Friday, who are accused of drug trafficking, was meant to start on 1 June 2016, but was the trial was thrown into disarray before it even started after the defence cited a recent ruling by the Court of Appeal, which cast doubt on the integrity of court-appointed expert Martin Bajada.

On 29 April last year, Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, presiding the Court of Appeal in an unconnected civil case, had upheld a request for the removal of the particular expert's evidence, after it emerged that he had been convicted of theft many years before.

The Office of the Attorney General had pre-empted this request, however, asking the judge to replace the court expert by appointing a second court expert to examine the original report and decide whether it could be kept as part of the evidence.

This move was objected to by defence lawyer Franco Debono, who claimed that it had not been notified of the prosecution’s request to replace the expert and argued that this had denied it the opportunity to make its submissions on the issue. The lawyer argued that this constituted a breach of accused’s right to a fair hearing in terms of Article 39 of the Constitution and Article 6 of the European Convention on Human Rights and requested the court to refer the issue to the Constitutional Court.

In a decision on the Constitutional reference, delivered on Wednesday, Madame Justice Anna Felice declared that a breach had taken place. However, the court said its Constitutional remit did not extend to reviewing whether or not there had been a misapplication of the law.

“In the present case the Court finds that the fact that the Criminal Court did not notify the applicants of the request made by the Attorney General to admit new evidence, and that therefore they were not given the opportunity to reply to this request, does in fact breach the rights of the applicants to a fair hearing," the judge rule. "The Attorney General requested the Criminal Court to refer the proceedings to the Court of Magistrates (Malta) as a Court of Criminal Inquiry to hear three new witnesses and appoint a new court expert. The Criminal Court reached its decision without giving the applicants the opportunity to reply to the Attorney General’s request with a view of influencing the Court’s decision.

“Court finds that there has been a breach of the principle of ‘equality of arms’ and consequently a breach of the applicants’ right to a fair hearing in terms of Article 39 of the Constitution and Article 6 of the European Convention on Human Rights. view of the fact that they were not notified with or given the opportunity to reply to the Attorney General’s application dated 23 May 2016.”

The judge ordered that a copy of this decision be inserted in the acts of the Bill of Indictment against Austine Uche and Kofi Otule Friday in order for the matter to be made known to jurors.

Austin Uche is being represented by Lawyer Joe Mifsud, whilst lawyers Franco Debono, Amadeus Cachia, Alfred Abela and Mario Mifsud are defending Kofi Otule Friday in the proceedings.