Deniro Magri hatchet assault proceedings declared null, judge refuses re-arrest

The Criminal Court has declared the entire compilation of evidence in an assault case against Deniro Magri to be null, owing to a procedural defect by the prosecution.

The Attorney General had filed an application last November, requesting the court issue an arrest warrant against Deniro Magri, whom the Court of Magistrates had declared that there was insufficient evidence to indict, in August.

Magri, 32, had been arraigned after allegedly assaulting and slightly injuring a man in Marsa, with a small hatchet. He was also charged with criminal damage and failing to observe his previous bail conditions, which had been handed down in separate proceedings against him over the 2017 murder of Sylvester Farrugia.

The alleged victim of the hatchet attack, Salvatore Cutajar, had chosen not to testify during the first sitting in the compilation of evidence in August, in order to avoid self-incrimination. Only two police witnesses testified, one solely to exhibit the official incident report, before the prosecution asked the court to decree on whether it saw sufficient grounds to indict Magri.

The court of magistrates had said the level of evidence it had seen “fell somewhere between the possible and the probable” – falling short of that required to decree prima facie, thereby denying the prosecution’s request to order that Magri be indicted.

But Madam Justice Edwina Grima also noted that the lower court had failed to issue either an order to discharge the accused or, as an alternative, to send the acts back to the AG within the space of 3 days for more evidence to be collected.

The court pointed out that the acts had not been sent back to the AG according to the timeframe given in the law, and had only been returned to his office two months later, in October 2021.

The judge also observed that she was faced with a legal complaint about the irregularity of the AG’s request for the revision of a decision of the compiling magistrate which could lead to the re-arrest of the accused who had never been declared discharged by that court, which had not followed the procedure laid down in the Criminal Code, nor respected the timeframes indicated in the law.

After conducting a scholarly examination of jurisprudence and the teachings of eminent jurist Prof. Sir Anthony Mamo, the judge said that the failure of the compiling court to scrupulously follow the law had led to it disposing of the case in an irregular manner.

“A declaration of innocence on criminal charges is not analogous to a release or discharge,” said the judge, giving as an example the fact that even in cases where a person accused is acquitted by a jury, it is the Criminal Court which must then hand down judgement declaring him not guilty.

“Even the legislator prepared for the eventuality that where the AG fails to present the Bill of Indictment in the time frame stipulated by law, the accused has the right to make a request before the Criminal Court asking to be released.”

The path open to the AG in these circumstances was to follow the procedure laid down in the Criminal Code and send back the record to the court from which it was received, together with a demand in writing that the court proceed afresh with the inquiry or that the record be rectified, said the judge.

“Here we are dealing with defective acts of the compilation of evidence, which are not in line with the law regulating them. Unfortunately, in this case there were shortcomings not only by the court of compilation, but also by the prosecution. The Court sees that the prosecuting official rushed in declaring her evidence closed just six days after the accused’s arraignment…and this when there is a term of one month for the closure of the compilation of evidence and when therefore it would be known that the defence was contesting prima facie.”

Neither did it appear that the prosecuting officer had brought the court’s decree to the attention of the Attorney General, in order that at least a remedy could be sought before the expiry of all legal timeframes, said the judge.

“The court cannot, at this advanced stage of proceedings, therefore, correct the defects which are in the acts by doing what the Attorney General is requesting…” Neither could the judge order Magri’s re-arrest, or ignore the fact that the compilation of evidence had not been closed in a regular manner, or that the legally-imposed timeframes were definitely not observed, she said.

“This all translates into defects in the compilation of evidence that the Attorney General was supposed to ensure had been regularised and not to proceed with the revision of a decree which was not given in accordance with the law.”

For these reasons, the judge declared the acts of the compilation of evidence against Deniro Magri to be defective and the decree of prima facie to be null. The AG’s request to issue a warrant for Magri’s re-arrest was therefore deemed irregular, with the court abstaining from taking further judicial notice of it.

Judge Grima sent the acts of the case back to the Attorney General, in order for the State’s prosecutor to take further action, if envisaged.

Lawyers Franco Debono and Giannella De Marco appeared for Magri.