Court's failure to record testimony leads to extraordinary appeal

An unusual case from the courts this morning, as a judge dealt with a request by a man - who had originally chosen not to testify in proceedings against him - to testify before the Court of Criminal Appeal, together with all the other witnesses, after the Court of Magistrates failed to record their testimony.

The request was made by Noel Abdilla, who had lost a case about a traffic accident at first instance and filed an appeal.

He had filed the request to testify before the Court of Criminal Appeal, after the same court had decided to re-hear all the witnesses who had testified and who had not been recorded.

The Appeals court should be a court of revision that should review the acts of the proceedings and determine whether there was a miscarriage of justice.  However since there were no transcriptions the court had to rehear all witnesses.

The Attorney General had opposed the request, as the accused had now heard all the evidence against him and could use this information to make his testimony more credible.

Abdilla’s lawyer Stefano Filletti objected to the rehearing, reversing the AG’s argument. “If UEFA get a complaint on a football match, does UEFA review a recording of the game or order a rematch to see what went wrong?  Similarly the Court of Appeal has to see what went wrong and not relisten to the evidence.”

This assumed greater importance given that now the witnesses had already been subjected to cross examination, listened to the defence’s line of questioning and also knew the weaknesses in their testimony, he said.  “If now therefore they change or tweak their version of events what remedy does the accused have?”

Describing the situation as jeopardising the man’s right to a fair trial, in the circumstances, Filletti called for the accused to be allowed to testify in the appeal court, despite not having testified in the court of first instance. “Only in that manner can the trial be fair,” said his lawyer, “because otherwise the Court of Appeal is ‘reviewing’ the case by relistening to witnesses who are now ‘in the know’ of defence strategy and cross-examination.”

The Court of Appeal, presided by Madame Justice Consuelo Scerri Herrera, agreed with the appellant, ruling that it was clear that unless the proceedings in court of first instance are transcribed the Court of Appeal cannot function as a true review court. It also formally brought the matter to the notice of the Minister for Justice.

Madame Justice Scerri Herrera decided that she would determine whether to allow the appellant to testify after hearing the witnesses depose again and compare their versions with other court documentation.