AG ordered to compensate man awaiting trial over 2013 430kg cannabis haul for trial delays

The Attorney General has been ordered to pay compensation to a man in a drug smuggling case that has been ongoing since 2013 and given 30 days to decide whether or not to indict him.

Joseph Grech, 55, from Marsa had been arrested in 2013 in connection with the discovery of 28 sacks, containing about 430 kilograms of cannabis leaves and blocks of cannabis resin, buried in a field in Victoria Gardens, St Julian’s in 2009. Six other people were also charged in connection with the drug find - the largest ever in Malta at the time.

In the years that followed the prosecution had not finished exhibiting its evidence, due to the Attorney General’s insistence on hearing the evidence of two witnesses, Scott Dixon and Kevin Sammut, whom the defence is arguing, cannot be heard because they qualify as co-accused. Dixon and Sammut had, in fact, been called to the witness stand but had declined to testify in view of the ongoing criminal proceedings against them about the same drugs.

Grech filed Constitutional proceedings last year, claiming a breach of his right to a fair hearing within a reasonable time and asking the court to order the prosecution to declare its evidence closed, thereby removing the block to the conclusion of the compilation of evidence.

The Attorney General argued that the prosecution’s insistence on compiling the testimony of the two witnesses, who are presently indicted, was not a capricious one, but arose out of its obligation to prove its case diligently, carefully and attentively. None of the delays were attributable to the prosecution or the judicial authorities, said the prosecutor.

The court had heard Assistant Police Commissioner Dennis Theuma testify that a bottleneck had formed because Dixon and Sammut would not testify. Asked who had decided to prosecute the men separately, Theuma said the decision was taken by the Attorney General, in consultation with the police. He conceded that the case against the other two men was “years” away from its conclusion, not least because they are yet to be tried by jury.

In a judgement handed down yesterday, Mr. Justice Robert Mangion rejected the AG’s claim that it was not the legitimate defendant in these proceedings, pointing out that it was the AG, and not the State Advocate, who had the power to begin, conduct and conclude criminal proceedings.

Examining European and local Constitutional case law about the concept of “reasonable time” in which cases are to be concluded, the judge observed that in assessing reasonableness, there was no specific time frame within which criminal proceedings are to be concluded.

“In the case at hand, it emerges that the delay on the part of the prosecution to declare its evidence closed comes from the fact that the prosecution is waiting to produce third party witnesses who…are inadmissible at this stage.”

It was clear that the issue of delay was primarily the result of the prosecution awaiting the conclusion of criminal proceedings against third parties who are presently taken to be co-accused, in order to eventually summon them as witnesses against Joseph Grech.

The judge also pointed out that Kevin Sammut had challenged the admissibility of the statement he had released to the police amongst other preliminary pleas in proceedings which had only recently been decided by the Court of Criminal Appeal, in May this year.

The judge ruled that while it was true that without Dixon and Sammut’s testimony the prosecution’s case against Grech might not be strong enough to achieve a conviction, on the other hand the proceedings against Grech could not be paused indefinitely in the hope that they might one day testify, probably years from now and that assuming no further proceedings are filed against them.

“In the present case, the Court need not wait for the [Criminal] proceedings against them to come to an end in order to make its analysis as to whether the delays breach the applicant’s fundamental right to a fair hearing within a reasonable time, as the exaggerated delays are evident ictu oculi.”

Mr. Justice Mangion declared that the delays were breaching the defendant’s fundamental rights and declared the compilation of the prosecution’s evidence closed, also ordering the AG to either issue a bill of indictment or counter-order in the next 30 days, or be liable to compensate the defendant by a further €50 for every day in excess of that period, until the relative orders are issued.

Lawyers Edward Gatt and Mark Vassallo represented Grech in the Constitutional proceedings.