Illegal hunting case to be retried after appeals court rules COVID interrupted prescriptive period

A hunter who was charged with hunting and trapping protected birds without a police licence in 2018, will have his case heard again after a judge upheld an appeal filed by the Attorney General that the prescriptive period had been interrupted because of the COVID 19 pandemic

File photo
File photo

A hunter who was charged with hunting and trapping protected birds without a police licence in 2018 but whose case was declared time-barred will have his case heard again after a judge upheld an appeal filed by the Attorney General, who argued that the prescriptive period had been interrupted because of the COVID 19 pandemic.

Julius Bonello, 69, from St. Julians had been charged in 2020 with having illegally hunted and trapped protected birds in 2018. But the court of magistrates, in a judgment handed down in January 2021, declared the case to have been time-barred as of October 2020.

The AG had subsequently filed an appeal, arguing that the court of the first instance had misinterpreted the law when it decided the matter was time-barred.

The public prosecutor had based his argument on Legal Notice 61 of 2020, which suspended all legal, judicial and peremptory time frames before the court due to the pandemic-induced slowdown.

The Legal Notice was amended by Legal Notice 84 of 2020, which specified that the suspension also applied to time limits in criminal and civil cases.

Legal Notice 84 was repealed by Legal Notice 243 of 2020, which came into force on 30 June 2020.

Legal Notice 65 of 2020  shut down the courts due to the pandemic.

A subsequent Legal Notice, number 230 of 2020, repealed LN 65, adding that the suspension of time limits in force at the time of its introduction is to remain in force for 20 days after its enactment on June 5 2020.

Arguments arose in court as to the interpretation of the English and Maltese texts, one of which used “repeal” and the other “thassir”, which implied the previous subsidiary legislation had been declared null and without effect. To add to the confusion, the Maltese version of LN 243 of 2020 used “revokar” in the title and “thassir” in the actual text.

It was highlighted that Article 74 of the Constitution provided that in cases where the two languages were in conflict, the Maltese version would prevail.

The court did not deny that there was a lack of legal certainty with regards to the Legal Notices but said it was not the correct forum for them to be clarified in.

In this case, after applying Article 74 of the Constitution, the court said that legal notices 61 and 84 of 2020 applied to this case.

The alleged crime had taken place on 27 October 2018 and, therefore, would have been time-barred by 27 October 2020. However, with the introduction of the legal notices, the prescriptive period was suspended for a total of 116 days.

Therefore the court said it “certainly could not agree with the court of First Instance when it declared the case to be time-barred by the lapse of two years which occurred on 21 October 2020, when in truth, on the strength of the Legal Notices mentioned, would have lapsed on 20 February 2021.”

Upholding the appeal by the AG, the court said it would not, however, hear the evidence itself so as not to deprive the defendant of an appeal from that case. The case was sent back to the Court of Magistrates to be heard again.

Madame justice Consuelo Scerri Herrera ordered that a copy of it be transmitted to the Minister of Justice, Equality and Governance in order for him to carry out the necessary legislative interventions on legal notices 230 and 243 of 2020.