Court places burden of proof on author Mark Camilleri in Rosianne Cutajar defamation case

A request by lawyers for MP Rosianne Cutajar, asking that the burden of proof be inverted in a defamation case she had filed against a critic has been upheld by a court.

Cutajar was once again present in Magistrate Rachel Montebello’s courtroom this morning, as the defamation case against author and outspoken government critic Mark Camilleri continued. Camilleri’s mandatary, lawyer Joseph Mizzi, informed the court that his client was medically indisposed.

The case was filed over a Facebook post of Camilleri’s, in which he alleged that the government MP had accepted payment from Yorgen Fenech in return for her defending him from corruption allegations while criticising the investigative work carried out by Daphne Caruana Galizia. Fenech is accused of having organised the murder of Caruana Galizia.

The post repeated a claim Camilleri had made in his book A Rent-seeker’s Paradise, in which he stated that Fenech had been involved in an intimate relationship with Cutajar. Camilleri claimed in his writing that Fenech "gave her corrupt money on the pretence she had helped him broker a property deal". The excerpt reads: "While Cutajar was enjoying her time with Fenech at work, she was pouring scorn on Daphne's memory both in parliament and abroad. Cutajar also opposed and challenged those who called for public inquiries into Daphne's murder whilst defending and apologising for the corruption of the Muscat government even after the 17 Black revelations."

Camilleri, who lives abroad, had filed a reply to the defamation claim, in which he argued that his publications had not caused damage to the MP’s reputation, were substantially true and consisted of an “expression of an opinion which could reasonably be reached by an honest person,” in view of the information currently available in the public domain. 

Camilleri had also pointed out that Cutajar failed to appear before the European Parliament’s PACE committee and had not contradicted the allegations. “The plaintiff has no reputation to defend,” his lawyers, Timothy Spiteri and Joseph Mizzi had argued.

When the case was called this morning, lawyer Edward Gatt, appearing for Cutajar, together with lawyer Mark Vassallo, told the court that in view of the fact that Camilleri had raised the defence of substantial truth, he was requesting an inversion of the burden of proof.

Gatt argued that it was important for Cutajar to have this happen because the defendant was not present during the proceedings, although his mandatary was there.

“His defence made the case more particular than other similar cases,” said the lawyer. “He must prove what he is stating.”

Mizzi objected, arguing that it was up to the applicant to bring evidence supporting her defamation claim. The fact that his client was not present changed nothing in the proceedings, he said.

“The case was filed by Hon. Rosianne Cutajar, she is claiming that the article is defamatory and so she must prove this in the defamation case.”

Gatt pressed on, telling the court that “the defendant chose to plead the truth of the facts… if he is agreeing that it [the article] is defamatory but that the facts are substantially true, then he has to prove it.” This was in line with jurisprudence, added the lawyer.

Gatt said that Cutajar had lost her initial case and had filed an appeal, after which the court of appeal had rebuked the author and sent the case back to the court of magistrates.

Mizzi disagreed with what he described as the other side’s tactics. “Today’s sitting was for evidence… today we expected Hon. Cutajar to testify.”

Gatt argued that there was nothing holding him back from making his request for the inversion of the burden of proof. “She will testify and has no difficulty in testifying, but will do so after he substantiates his claims.”

The court, observing that the defence was insisting on the veracity of the claim, upheld Cutajar’s request and ordered that the evidence supporting Camilleri’s plea be exhibited by the defendant.

The case was adjourned to June for the defendant to present his evidence on the truth of the facts. Mizzi informed the court that his client would be filing an affidavit before the next sitting.