The Jonathan Roger Portelli case: Reforming Article 30A

Last April, Jonathan Roger Portelli was acquitted by a jury after spending over a decade awaiting trial on charges of trafficking cannabis resin. After a week-long trial, the jurors only took two hours to reach an 8-1 verdict of not-guilty. It was apparent that the prosecution’s case was largely contingent on the workings of Article 30A of the Dangerous Drugs Ordinance.

Portelli was accused almost exclusively on statements made by two other individuals: Christopher Bartolo and Joseph Grech, under Article 30A. At Bartolo’s residence, authorities had discovered 168g of cannabis resin and at Grech’s, 321g were found stored in electricity sockets under highly suspicious circumstances. Yet, Portelli who had even less than 7g found at his residence, was named by both of them as their supplier of larger quantities.

Article 30A was introduced in 1994 as part of a wider reform in response to the so-called war on drugs. It provides that statements made by a person involved in a drug offence, if confirmed under oath before a magistrate, may be admitted as evidence against another person charged under the same Ordinance. On paper, this seems like an expedient way to collect evidence, secure a conviction and clamp down on the drug gangs. However, in reality and in practice it expressly derogates from a fundamental safeguard enshrined in Article 661 of the Criminal Code that a confession shall not be evidence except against its maker and shall not prejudice any other person.

This rule has been in the Criminal Code since its enactment back in 1854, asserting it as a golden rule in the Maltese law of evidence. Article 661 exists for a good reason. It protects against the risk of incentivising false accusations. A co-accused, hoping for leniency, may be tempted to shift blame onto another. If a co-accused’s case has not been decided, and his credibility has not been tested in court, his statement should not be used to jeopardise someone else’s liberty.

A landmark judgment in this regard was handed down by Chief Justice Emeritus Vincent De

Gaetano in Police vs Pierre Gravina in 2003 which emphasised the need for such statements to be subject to eventual control and cross-examination. Courts have built on this rule and added further safeguards. Today, the prevalent rule is that such statements remain admissible as long as the person making them is cross-examined at any stage of the judicial process.

This interpretation has been consistently upheld, save for the landmark judgment Police vs

Trevor Borg in 2023, whereby the Court of Magistrates stated that such statements should be ab initio inadmissible, as a co-accused would have every interest in shifting blame. The court added that if the prosecution wants to produce a co-accused as a witness, it should only do so by recalling him after his case becomes res judicata, at a point where testimony becomes admissible.

Effectively, in this judgment the court rendered Article 30A a dead letter in absence of a final

judgment given against the same accused. The Court of Appeal upheld this line of reasoning and appealed to parliament for adequate intervention. This was a seminal judgement.

Nonetheless, this line of reasoning was not followed and the prosecution is today allowed to build a house of cards, resting solely on co-accused statements, only for the foundation to be pulled away once the trial begins.

This is exactly what happened in Portelli’s case. On the very first day of the trial, the Criminal

Court issued a decree removing the sworn statement made by co-accused Christopher Bartolo because his own proceedings were still pending and thus he would not be a compellable witness to testify. The decree also barred the prosecution from making any reference to Bartolo’s sworn statement.

That left only the statement made by Joseph Grech. Thirteen years of legal limbo, based on Article 30A statements; one of which was removed as soon as the jury convened. That is not justice.

Portelli’s outcome was the correct legal outcome, but it came far too late. His case should spell the end of Article 30A in its current form. A law that allows a person to face a trial jury, possibly for up to life imprisonment, on the sole basis of an unchallenged statement is incompatible with modern standards of procedural fairness.