Probation on self-defence no obstacle for guard

A Zabbar man who had been found guilty of seriously injuring another man in a knife attack, may now be employed as a private guard because he had only been handed a probation order for that crime and probation orders do not count as convictions, an appeals court has held.

In his decision handed down last Wednesday, Mr Justice Anthony Ellul, presiding the Court of Appeal in its inferior jurisdiction, upheld the view of the Administrative Review Tribunal that Article 25 of the Probation Act was clear in stating that any conviction for which a person was placed on probation must – in every case – be disregarded for the purposes of any law imposing a disqualification or similar penalty upon convicted persons.

The Commissioner of Police had filed the appeal following a decision by the Administrative Review Tribunal back in May 2014, that ruled that he had incorrectly refused an application for a private guard licence to Simon Agius, 48 of Zabbar.

The Commissioner cited the fact that Agius had been convicted in 2002 of attacking and seriously injuring a young man with a knife during an argument.

That sentence, handed down by Magistrate Consuelo Scerri Herrera in December 2002, goes over how Agius had been charged with the attempted murder of Joseph Carmel Zammit from San Gwann. Zammit was just 18 at the time.

The knifing had taken place in the afternoon of 31 March 2000 at Zammit’s girlfriend’s flat in Old Bakery Street, Valletta, when Agius’s son, Redeemer, had kicked Aimen El Ewany – Zammit’s girlfriend’s brother – in the face. El Ewany had warned the boy not to do it again or “he would hurt him.”

At that point Agius had jumped on El Ewany and told him, “if you touch him” – referring to his son –  “I’ll kill you”.

Zammit had attempted to break up the fight with an umbrella and a violent struggle had ensued, during which Agius struck the 18-year-old in the face with a knife which he had snatched from the kitchen.

The court had found Agius guilty as charged, however, in view of the fact that the injury was inflicted in excess of self-defence and taking into consideration the fact that Zammit had forgiven him, the court limited itself to fining Agius Lm400 (€931) and placing him on probation for three years.

While working as a watchman with the Education Department, Agius had subsequently applied for a police licence to work as a private guard, but had been refused on the ground of his previous conviction.

Agius filed proceedings before the Administrative Review Tribunal, claiming the decision was unjust, irrational, disproportionate and based on irrelevant considerations.

The Commissioner of Police had argued that Agius’s probation order for grievous bodily harm was tantamount to a conviction and that he had no choice but to refuse the man’s application for the private guard licence.

But in May 2014 the tribunal, presided by Magistrate Gabriella Vella had ordered the Commissioner to issue Agius a licence, holding that while there had been no doubting the grievous bodily harm, article 25 of the probation act clearly prohibited the probation order from being counted as a conviction. The Lm400 fine had not been inflicted as punishment for the grievous bodily harm – which carries a prison sentence – the Tribunal said, but for offences against the Arms Act.