Compilation of evidence and indictment on heroin trafficking declared null after 15 years

The Criminal Court has declared the compilation of evidence against a Libyan man accused of heroin trafficking and his subsequent indictment to be null, after no less than fifteen years of criminal proceedings.

Faisal Mohammed M. Wadi, 46, had been charged with conspiracy to traffic heroin back in September 2008, after airport customs officials discovered the drugs in a suitcase belonging to Anna Spiteri upon her arrival from Tunisia.

Some 3.5kg of heroin was found to have been concealed in the lining of two otherwise empty laptop cases.

When questioned by the police, Spiteri had insisted that she had not been aware of the drugs, as her suitcase had been packed by a man with whom she had spent a number of days in Tunisia, a certain Naji Ahmad Mohamed Al Maraash.

Al Maraash had asked her to take some gifts he had bought for his family back in Malta. These were to be collected by two of his friends, to whom she was told to hand over her suitcase for eventual delivery to her hotel in Sliema.

The police quickly arrested the two men in question, Mohammed Margash and Issam Zbeta, at the airport Arrivals Hall. Margash, who is Maraash’s brother, had explained that the defendant, Wadi, had phoned him up and asked him to pick up the woman from the airport and take her to her hotel. Wadi, who had also been at the airport when Spiteri arrived, had paid €100 to both Margash and Zbeta for this errand.

Wadi was arrested the next day, on 18 September 2008. He denied what had been said about him, as well as any involvement in drug trafficking. He claimed that he had been at the airport to meet Zbeta and pay him for some works that he had done.

In February 2023, the Attorney General issued a bill of indictment against Wadi, accusing him of importing heroin and conspiracy to import heroin, and asking that the man be sentenced to imprisonment for life if convicted.

Wadi’s lawyers Arthur Azzopardi and Jacob Magri, had filed a note with the man’s defence pleas, the first of which was that the defendant’s name was Faisal Musbah Ali Wadi, and not Faisal Mohammed M. Wadi as postulated by the Bill of Indictment.

This fact had already been acknowledged by the Criminal Court as far back as March 2009, the lawyers pointed out, arguing that this defect in the acts had rendered the bill of indictment null, as it dealt with a fictitious person who was not the defendant.

In July 2023, the parties agreed to make submissions only on this plea before the Criminal Court, presided by madam justice Consuelo Scerri Herrera.

The judge, after examining the acts of the case, noted that the criminal record exhibited was for Faisal Musbah Ali Wadi and that, handwritten in green ink at the top of the document, were the words “may be same person.”

The court also observed that the case file showed that the defendant had been declared a prohibited immigrant in April 2002 and had been issued with a removal order, but had tampered with his passport and returned under a false identity.

During the compilation of evidence, the Attorney General had requested a correction to the name, later authorised by the court, to read “Faisal Mohamed Musbah Ali Wadi.” At that stage, the defendant had been asked to enter a fresh plea and had again pleaded not guilty.

The defence insisted that although the charges had been read out anew, no decree of prima facie had been given, which led to the nullity of the bill of indictment. In June 2009, the defence had specifically exempted the prosecution from having to exhibit all its evidence afresh, observed the judge. 

“Once the compilation of evidence had to be done again, the charges had to be read out once more and the prima facie decree also had to be issued again, and had the defence not exempted the prosecution from hearing the witnesses from scratch, they would have had to testify again, too.”

From the acts of the case, this did not appear to have been done, said the court, “leading to the nullity, both of the acts of the compilation of evidence, as well as that of the Bill of Indictment…”

In view of this procedural error, the judge said she had no option but to declare the compilation of evidence and the subsequent bill of indictment to be null, ordering the defendant to be returned to the state he had been in before the bill of indictment was issued.