Witness’s change of version of events may undermine prosecution’s case

The Magistrate explained that the prosecution is bound to convince the court that the charges issued against the accused have been proved beyond reasonable doubt

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Malcolm Mifsud
17 December 2015, 10:59am
A Magistrate’s Court held in its judgement on Il-Pulizija -v- Leonard Falzon, that a conflict of evidences does not necessarily result in a not guilty decision, but if the magistrate is not convinced of one version, then there is no other option.

In this case the police charged Leonard Falzon with causing grievous bodily harm to his neighbour Paul Borg.

Magistrate Dr Neville Camilleri in his judgement analysed the evidence produced.

Paul Borg had told the court under oath that he was at odds with the accused’s woman friend. On the day he was sweeping the pavement opposite and the accused called him an animal and warned him not to place the dirt behind the door. The accused attacked him and Borg took out a piece of wood to defend himself and hit him with it. The accused removed this piece of wood and hit Borg around six times and as a consequence broke his pelvis. Borg was operated on at hospital.

Accused Falzon also testified that on the day Borg had swept the pavement in his direction. A neighbour had asked Borg not to do this, but the reply given was not to interfere. A colourful exchange took place, with Borg reaching behind his doorway and producing a wooden rod and hit Falzon in the leg. Falzon attempted to remove the rod, but Borg fell to the ground. This was corroborated by an eyewitness. 

Magistrate Camilleri explained that the prosecution is bound to convince the court that the charges issued against the accused have been proved beyond reasonable doubt. The court quoted from a Court of Criminal Appeal judgement of 7 September, 1994 Il-Pulizija -v- Philip Zammit et, which held that not every doubt should result in the accused’s acquittal – the doubt must be reasonable. In other words what the court should do is to take into consideration all the evidence and circumstances and by using good sense, be morally convinced of what the prosecution aimed to prove. 

In this particular case, the court held that it was not being contested that the argument took place when Borg was sweeping the pavement. Neither was it being contested that Borg produced a rod and attacked Falzon.

What was being contested was that Falzon hit Borg with the rod on his backside for six times, breaking his bones. The court pointed out that Borg’s version was not corroborated by any other witness.

The accused’s version that Borg fell, when he attempted to take the rod from his hand, was corroborated. In fact the police report states that Borg had told the police in hospital that he had fallen. Therefore, Borg seems to have changed his version from when he was in hospital to when he testified in court.

Magistrate Camilleri quoted from Il-Pulizja -v- Jonathan Micallef of 2 February, 2012 delivered by the Court of Appeal, which held that the fact that the court was faced with different versions of events, did not necessarily mean that there was a conflict of evidence and that the accused should be acquitted, but the court should evaluate the evidence in accordance to Article 637 of the Criminal Court and decide who to believe and who not to believe.

The court pointed out that it had heard all the witnesses and therefore, could observe the behaviour of the witnesses. The court held that it was not in a position to choose one version as credible and therefore, there existed a reasonable doubt in the court’s mind and therefore, found the accused not guilty of the charge brought against him.

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Malcolm Mifsud is a partner at Mifsud & Associates.