Jailed man to be re-tried after appeals court finds error in judgment

The judgement was annulled on appeal after the court cited the wrong articles of the law and found the man guilty of a crime he was never formally charged for

A man, jailed for insurance fraud, will have to be re-tried after his conviction was annulled on appeal.

Aaron Charles Zahra had been charged with defrauding Gasan Mamo Insurance Agency, Citadel Insurance Agency and Untours Insurance Agency out of over €5000 each in October 2010. He was also charged with misappropriation, making a false declaration to obtain a benefit, damaging his own property for insurance fraud purposes and recidivism.

A Court of Magistrates had found him guilty in December 2020 and sentenced him to 5 years imprisonment.

Zahra’s lawyer, Roberto Montalto, had filed an appeal, arguing that he had also been accused of fraud in April 2010 but that this charge had never been confirmed on oath by the prosecutor and had not been issued in court for him to plead to.

A fourth charge of attempted fraudulent gain had been withdrawn before the charges were sworn, he said, but at no point was another charge added in its stead.

He denied any involvement in the fraud against Citadel Insurance and Victoria Insurance Agency on 3 April 2012. This lack of involvement had been confirmed during the testimony of Inspector Rene Stivala and a representative of Citadel Insurance p.l.c.

The first court had also applied the law incorrectly, argued Montalto, as it had awarded punishment on the basis of an article of law, as amended in 2014 - after the alleged crime had taken place.

Ruling only on the first ground of appeal, that of having been found guilty of an offence for which he had not been charged.

The Court of Criminal Appeal, presided by madam justice Consuelo Scerri Herrera, ruled that it was true that the man had been found guilty and punished for an offence for which he had not been charged.

Under section 382 of the Criminal Code, the court of magistrates in passing sentence on the accused, must award punishment and clearly mention the relevant sections of the law under which the accused was charged. The failure to do so amounted to a absence of a substantial formality, said the court, leading to the nullity of the judgment.

“In this case it appears that the court not only had cited the wrong articles of the law but had also cited a new charge which the accused had not been charged with and therefore found him guilty of a crime with which he had not been charged.”

Upholding the appeal, the judge said the sentence was defective in that it lacked one of the essential requisites mentioned in the Criminal Code. In order to rectify this procedural mishap, the court remitted the acts to the court of first instance to re-hear the case from the beginning.

Inspector Rene Stivala prosecuted. Lawyer Roberto Montalto was defence counsel to Zahra.

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