Court orders retrial of minibus driver jailed over rape of eight year-old schoolgirl

A minibus driver who filed an appeal after being sentenced to 12 years for the rape of an eight-year-old entrusted to his care will have his case retried because the court of the first instance did not allow him to cross-examine the alleged victim.

James Grech from Qormi was jailed in 2020 after being found guilty of the girl’s aggravated rape and sexual assault, which the court was told, had occurred multiple times in 2006.

Through his lawyers, Jason Grima and Noel Bianco, Grech had subsequently filed an appeal, arguing that the judgement was null because the first court had refused him the opportunity to cross-examine the alleged victim in a decree handed down in October 2019.

The victim, by then 22 years old, had testified via video conferencing, giving a detailed deposition recorded in a 41-page transcript.

The judge noted that on the last page of this transcript, the defence had been invited by the court to cross-examine her, but defence lawyer Jason Grima had replied that he was reserving the right to cross-examination at a later date.

During a sitting much late, in June 2019, Grima declared that he wished to cross-examine the alleged victim, to confront her with testimony given by two other young passengers in the minibus.

This request had been objected to by parte civile lawyer Joe Giglio, who amongst other arguments submitted that the victim was a very vulnerable person to whom a special set of rules regulating vulnerable witnesses applied.

The court had ultimately rejected Grech’s request to cross-examine the alleged victim. It also refused a request for a Constitutional reference to be made on this point.

In his decision on the case, Mr. Justice Giovanni Grixti observed that cross-examination was an integral part of the criminal justice process and was intended to bring to light relevant facts that a witness would have forgotten or failed to testify about. This right was also enshrined in the Constitution and the European Convention on Human Rights.

The first court had made reference to the preamble to a European Parliament directive which established minimum standards in the rights, protection and support of the victims of crime. This preamble expressly stated that the extent of any measure aimed at protecting vulnerable witnesses “should be determined without prejudice to the rights of the defence,” pointed out the judge, emphasising the statement.

Mr. Justice Grixti also made reference to ECHR case law which established that the absence of an opportunity for the person accused to examine or have examined witnesses “at any stage of the proceedings rendered the trial as a whole unfair.”

Applying this doctrine to the case at hand, the court said that, whilst there was no doubt that the cross-examination had been omitted in order to avoid revictimisation, the court of the first instance could not refuse the defence’s cross-examination at a later stage. It would have been ideal had the first court suspended the sitting until the alleged victim recovered somewhat from her testimony and for the accused to consult with his lawyers.

“In the opinion of this court, whilst all necessary measures to protect vulnerable persons should be in place, at the same time, as much as possible, these measures cannot reduce the rights of the defence.”

Upholding the appellant’s initial complaint and refraining from passing judgment on the man’s other submissions, the court ordered the acts of the case to be sent back to the court of Magistrates so that cross-examination can take place before that same court proceeds to pass judgment anew.