Updated | Carmel Cutajar sentenced to 90 months for 'excusable attempted homicide'

Carmel Cutajar has been sentenced to seven year and a half years imprisonment for excusable attempted homicide, from which the time he had spent in custody was to be deducted.

The former policeman was also ordered to pay €6,500 in costs.

The jury has found him guilty of attempted homicide, which however was rendered excusable as it had been committed “under the first transport of a sudden passion as a result of which he was incapable of reflecting.”

During submissions on punishment, the defence pointed out that the guilty verdict had been reached by a minimum vote – 6 votes to 3. 

Defence lawyer Edward Gatt militated for the absolute minimum to be imposed. 

“We are taught that the punishment should reflect the jury's decision," submitted the lawyer. 

“We have a case which has stirred up certain emotions,” he observed, and urged the court to inflict a punishment according to law, but which also reflected the views of society at large. 

“Whoever you talk to will express a sense of compassion for the accused.”

“We are here to do justice,” he said, expressing empathy with the wife of the accused, however adding that “it takes two to tango.”

He repeated that the worst punishment the accused could have suffered, that of being deprived of his children, had already been suffered.

All the ingredients of a minimum punishment were present, submitted the defence.

Gatt praised police Inspector Keith Arnaud for what he described as his diligent work and pointed out that even the inspector had described the accused as "not a criminal, but a person who made a mistake.”

Gatt however, objected to what he described as unnecessary costs entailed by analysing gunshot residue and blood samples and valuing the car.

"I don't believe that he should be condemned to pay for these," he said.

Taking into account the minimum vote, the fact that the accused is a first-time offender and the suffering endured by the accused, the court should hand down a minimum punishment.

Prosecuting lawyer Giannella Busuttil asked the court to impose a punishment "far from the minimum, close to, albeit not the maximum," adding that the law was clear that the accused was to bear the costs. The AG was obliged to bring the best evidence it could, the lawyer argued.

The verdict was reached just over four hours after the jury had retired to deliberate, Judge Edwina Grima having completed her summing up of the evidence and arguments presented to the jury over the past 8 days.

Cutajar, 51, of Rabat, had pleaded not guilty to the attempted murder of his wife, seriously injuring her, carrying an unlicensed firearm and committing a crime he was duty bound to prevent when he shot her once in the chest on 26 September 2012.

On that day, Cutajar had showed up at the Point-de-Vue guesthouse in Saqqajja where his estranged wife, Maria, was working. The couple, who have two children, had an argument outside the restaurant before the accused shot the Maria Cutajar in the chest. She ran into the restaurant screaming for help. Cutajar drove off and turned himself in at the nearest police station. He was taken to hospital, having shot himself once in the chest.


Court upholds defence's objections to eleventh-hour addition of aggravating factor

This morning, lawyers for Cutajar had objected strenuously when prosecutors tried to get the aggravating factor that arises from the fact that the accused and his victim were husband and wife, included in the sample verdicts handed to the jurors.

Lawyer Edward Gatt pointed out that this had not been mentioned in the bill of indictment nor during the course of proceedings until this morning, after both parties' submissions were closed.

Cutajar is indicted for the crime of willful homicide to which no aggravating factors apply. The attorney general had argued that this offence includes in it the less grave crimes of grievous and very grievous bodily harm, and that at law, bodily harm is aggravated if committed on a close family member - the definition of which includes persons who have had children together.

Although of little import in the light of the verdict returned, had the jury not found Cutajar guilty of willful homicide, but guilty of the lesser charge of grievous bodily harm, this aggravating factor would have brought the maximum possible punishment up from 4 years in prison to 9.

“The AG is requesting an aggravating factor be added to the principal accusation in the Bill of Indictment and the subordinate crimes. That the prosecutor is asking for this at the final stages of the trial, when the court has almost finished its final address, is a dangerous attitude,” Gatt warned.

He argued that the court, albeit differently presided, had already decided the issue in Republic of Malta vs Pasqualino Cefai, which had been confirmed on appeal last October. That day the court held that the changes requested had not been included up to the closing of submissions and not debated on in court should not be included in the sample verdict.

After retiring to her chambers briefly to consider the prosecution's request, judge Edwina Grima turned it down, saying it was evident from the start of the trial that Carmel and Maria Cutajar were husband and wife and the jury had not been told that this could affect the punishment. Adding it at this stage would cause serious prejudice to the defendant as he had no opportunity to rebut it, the court held.

With regards to the accusation of attempted willful homicide, the judge had instructed the jury to first consider the accused's intention. If they felt it was homicidal, then they were to look at the attempt. If they felt that there was no homicidal intent, they were to consider the lesser charge of grievous bodily harm. Irrespective of whether attempted homicide or bodily harm are chosen, they were then to decide if the excusing factors applied.