Man facing nine separate alimony cases suffered rights breach, court says

Judge slams prosecution for abusing its prerogative, calls for law to be changed

File photo
File photo

A judge has described the practice of filing separate criminal cases over individual failures in paying alimony as “an abuse of the Criminal Code.”

The judge said the practice breached the defendants’ fundamental rights.

This emerged in a decision handed down this morning by the First Hall of the Civil Court in its Constitutional jurisdiction, following a constitutional reference filed by Joseph Muscat (not the former Prime Minister).

Muscat had been arraigned in July 2021 on charges of having failed to pay the mother of his children alimony in April that year. During the proceedings it emerged that Muscat had also previously been charged with the same offence in October, November and December 2020, as well as January, February, March, May and June 2021.

In every case, Muscat was found guilty and sentenced to imprisonment for one month, bringing his total jail time for the nine separate infractions to nine months.

Muscat’s lawyers, Arthur Azzopardi and Jacob Magri had filed an appeal to this sentence, arguing that the Court of Magistrate’s legal inability to collectively deal with multiple instances of such breaches in a single case was detrimental to his client’s right to a fair hearing.

In the appeal application it was argued that the multiple, identical, failures to pay constituted what is known as a “continuous offence.” The Maltese Criminal Code caters for instances where a person who is accused of a multiplicity of crimes, committed with the same purpose and in breach of the same provision of law can be made to answer for just one ‘continuous’ offence, with punishment being increased by one or two degrees, depending on the Court’s discretion.

The defendants in the Constitutional case, the State Advocate and Commissioner of Police, had rebutted the argument that the system removed a defendant’s right to equality of arms, arguing that the offences had to be prosecuted separately due to the legal six-month time limit on the prosecution filing charges for non-payment of maintenance. They also argued that “the law is there to protect the victim…and not to safeguard the person who broke the law in the most flagrant of ways.”

Mr. Justice Francesco Depasquale noted that all of the proceedings had been filed on the basis of Section 338(z) of the Criminal Code, which criminalises the failure to pay maintenance or child support, and making repeated commission of the offences punishable by imprisonment for up to two months.

The judge observed that the actual circumstances of the case were markedly different from how they had been described to the court by the State Advocate, “presumably on the information passed on to him by the Police.” There were at least two separate occasions, where three of the charges could have been joined together for prosecution but had not, without a valid reason.

“It is observed that, contrary to the impression which the Police wanted to give during the State Advocate’s submissions…the police were free to issue one set of charges for 3 individual months taken together and there was no reason for issuing them separately, if not for very clear reasons which the court will be delving into shortly,” said Depasquale.

The judge quoted at length from judgments of the Court of Criminal Appeal and publications by prominent legal scholars, which highlighted the potential for abuse by the prosecution, who have sole discretion as to whether to press separate charges or treat the multiple instances as a continuous offence.

However, it also emerged from the acts of the proceedings that although Muscat had requested the prosecution exercise this prerogative, it had refused, on the pretext that these were individual reports and as the failure to pay child support was ongoing.

The result of this objection by the prosecution, said the judge, was that Muscat had been exposed to a potential maximum sentence of 18 months in prison and had in fact been jailed for nine months.

“The Court here cannot but observe that the behaviour of the prosecution, in particular with regards to those charges issued on the same date, can be taken to be abusive and solely aimed at inflicting the maximum possible damage on the accused, which behaviour certainly cannot find support in this Court.”

The intention behind the decision to charge separately, said the judge, “was clearly to twist the accused’s arms… with the sole aim of placing the accused under threat of harsh punishment in order to get him to pay the maintenance amounts which were due.”

Depasquale explained that this line of thought was also reflected in the State Advocate’s submissions, where it was insisted that no breach took place because of the practice adopted by the Court of Criminal Appeal, whereby once the accused paid the alimony due, the sentence would then be reformed into a conditional discharge. “The Court here observes that this practice has been adopted by the courts solely in view of the repeated abuse committed by the prosecution in similar or identical cases, wherein they object to amalgamating the charges and thereby the Courts are constrained to reduce the punishment in an attempt to provide a remedy,” noted the judge.

“The Court, therefore, understands that the Prosecution is knowingly and with clear intent, abusing its exclusive prerogative on whether or not to include several crimes in the same charge, which abuse would certainly not be there, had the prerogative provided by Article 595 of the Criminal Code would not only be applicable upon a request by the Attorney General or the Police but would be applicable also by the Court itself, ‘ex officio’ if considered opportune.”

This power, currently exclusively wielded by the prosecution, impeded the court from delivering justice, said the judge. The situation could easily be fixed through an amendment to Article 595 of the Criminal Code to include the possibility of the Court also amalgamating similar charges of its own volition.

Upholding the Constitutional Reference, the judge ruled that Muscat’s right to a fair hearing was being breached by this exclusive prerogative, which caused a disparity in arms and was causing him to be condemned to a more severe punishment to that which would otherwise be applicable.

The court ordered that the similar charges against Muscat be considered a continuous offence.

The judge ordered that a formal copy of this judgement also be sent to the Speaker of the House and the Minister for Justice.