Alleged traffickers' joint bill of indictment will breach fair trial, judge says

A woman indicted together with another person for trafficking a kilogramme of cocaine in 2012 has successfully claimed that the fact that they share a bill of indictment impedes her from summoning him as a witness in her defence, in breach of her right to a fair trial.

Priscilla Cassar had been arrested alongside Angelo Bilocca during a controlled delivery of cocaine at their Siggiewi home. News reports from 2012 show that their defence lawyer had told the arraigning magistrate at the time that two Nigerian men had turned up at their farm and handed them a package containing the drugs.

Cassar and Bilocca are indicted for trafficking cocaine, conspiracy to traffic cocaine and attempting to evade arrest. Cassar alone is also accused of knowingly suppressing evidence.

In February 2020, Bilocca had released an affidavit, explaining that he had no objection to testifying about Cassar, his co-accused, and had no objection to the criminal process against him being decided before hers.

But the Attorney General had decided to issue a bill of indictment against the two as a pair, something which Cassar is saying breaches her right to a fair trial under article 39 of the Constitution and Article 6 of the European Convention on Human rights.

The AG’s use of his so-called “absolute discretion” to indict the two together was arbitrarily impeding Cassar from producing Bilocca as a crucial and essential witness, she said.

The court said that it, as the AG had insisted, the issue of admissibility of Bilocca’s testimony is left to the trial by jury, the only decision that the Criminal Court could make in this regard is that he cannot be produced as a witness.

Bilocca clearly states in his affidavit that he has no objection to being tried separately, and if this were to happen, he would be taken to be an admissible witness against Cassar, noted the court.

In a judgment handed down this morning, Mr Justice Lawrence Mintoff pointed out that Cassar was facing a lengthy prison sentence of up to life imprisonment, and this made it more impellent that the prosecution and the defence have “equality of arms” -  in this case, the possibility of summoning Bilocca to the stand.

The judge confirmed that there is no automatic right for co-accused to be tried separately, but that in view of the facts of this particular case, he was concluding that the fundamental right to a fair hearing could be prejudiced if the alleged co-perpetrator is denied the opportunity to testify and give a complete picture of the facts.

Having thus decided, the court ordered the Attorney General to ensure that this breach did not occur. The judge also ordered a copy of the sentence be handed to the Speaker of the House.

Lawyers Stephen Tonna Lowell and Giannella De Marco were defence counsel to Cassar.