Technicality clears man of protection order breach

Court overturns protection order breach after noting exhibited photocopies were not authenticated and cannot be accepted as evidence

The court of criminal appeal has overturned a man’s conviction for breaching a protection order after noting that the exhibited photocopies of the court order were not authenticated and could not be accepted as evidence.

Samir Lotfi Fahim Tawdrous had been cleared in September 2016 of harassing and threatening a woman and misusing telecommunications equipment. But the court had also found him guilty of breaching a protection order already issued in favour of the woman in question and ordered him to forfeit a €1000 personal guarantee.

Tawdrous had filed an appeal, with his lawyer Jason Grima arguing that as he had been found not guilty of the harassment charges, he could not then be found guilty of breaching the protection order. All he had done was send the woman blank SMSs, he claimed. This was why the first court had dismissed the charges of threats and harassment, explained the lawyer.

The Court of Appeal, presided by Mr. Justice Giovanni Grixti, ruled that the court of first instance had failed to award the punishment laid down in the law, but had instead opted to have him pay the guarantee. But as the law did not expressly give this faculty, this meant that an essential formality of any criminal judgment – punishment – was not followed.

“In the opinion of this court, the court at first instance failed to follow an essential formality for the validity of the sentence - the absence of awarding punishment after the finding of guilt and once not expressly provided that it could apply another sanction in its stead. For this reason, the appealed sentence is being declared null and without effect."

The judge then proceeded to decide the case himself, as provided for by the Criminal Code.

He noted that the case centred around three blank messages sent by the appellant to the woman whilst he had been bound not to communicate with her. The case between them was over domestic violence and beatings, observed the court, which swiftly condemned the sending of the blank messages as a “cowardly type of communication meant to vex and annoy,” which could lead to fear and torment on the part of the victim.

But the court also noted that it had only been given an unauthenticated photocopy of the protection order. Quoting jurisprudence which had established that photocopies with had not been authenticated could not be taken as evidence, the court ruled that the man was correct in challenging the existence of the protection order.

For this reason, the court confirmed the man’s innocence, not just on the breach of the protection order, but on all counts.

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