Trial by jury | Defence accuses police of carrying out illegal sting

Former barman Godfrey Gambin had been arrested in July 2010 together with Libyans Adel Mohammed Babani and Nabeil Ibrahim Saleh

The trial of Godfrey Gambin and Libyan Adel Mohammed Babani took an unexpected turn Monday afternoon, when the former Assistant Commissioner of Police who had led the operation which arrested the men revealed that the operation had, in fact, been a “controlled delivery” – a sting operation or setup meant to catch the men in the act of handing over the drugs – a fact never alluded to in court during the six years that passed since the arrests were made.

The defence was, for a time, thrown into disarray by the surprise announcement, which it condemned as an underhanded tactic.

A jury has begun hearing submissions in the trial of two men accused of smuggling nearly 20 kg of cannabis resin into Malta on a speedboat six years ago, a crime for which the men could potentially spend the rest of their life behind bars.

Gambin, 40, from Iklin, was arrested in July 2010 together with Libyans Adel Mohammed Babani, 51 and Nabeil Ibrahim Saleh, 44, after police found the cannabis resin in the men’s possession, shortly after the boat arrived at Xemxija. Police stopped the men’s car in Xemxija, when they were seen throwing bags which were later found to contain several large blocks – 19.4kg – of cannabis resin out of the cars’ windows.

The drugs, having a purity of 9.2%, are thought to have had a street value of over €124,400.

Saleh entered Malta illegally, having made prior arrangements with the men to pick up the drugs at Xemxija bay.

The men are charged with conspiracy to import the 19.4kg of cannabis resin, importing the drug, aggravated possession of cannabis in amounts which denoted that it was not for their personal consumption. Gambin alone is also charged with simple possession of cannabis grass and simple possession of cannabis resin.

Saleh, who was granted bail in 2012 after spending 22 months in preventive custody, is again at large having likely absconded to Libya shortly after his release. Proceedings in his regard have been suspended until his recapture.

Defence outrage at admission of police sting

Former AC Neil Harrison, who had received the tip-off which led to the arrest, was the first and last witness in today’s sitting. “The operation which took place late during the night of the 29-30th July had involved a large number of officers,” Harrison recalled. He had been observing the bay from an area near abandoned restaurant, he said. PC Antoine Micallef had taken up another position, observing another quadrant.

“At around 2am two vehicles arrived. They went down to the quay and spent two hours there. At one point my colleague saw them strolling along the coast.”

Nothing happened however and the men left the area in the vehicles. But a while later the men returned to the same spot and parked on a downward slope between the restaurant and a nearby pool.

Harrison had then set up his officers to intercept the two cars, blocking the road both ahead of and behind the suspect vehicles. Seeing the police roadblock ahead, Gambin threw his bag out of the car.

Then came the bombshell: “The information I received... I cannot reveal the source, but it was precise,” Harrison testified. “He knew what he was saying. This information didn’t arrive on the 29th July. The informant had been in contact with me for a while.”

Harrison had been informed in April 2010 that Nabeil Ibrahim Saleh had been planning to ferry drugs from Libya to Malta using a sea route, but the operation had been repeatedly called off from the Malta side due to unfavourable conditions. “The information was that he wasn’t acting alone,” explained the senior policeman, adding that Nabeil had already been arrested in 2007 following a cannabis seizure “but there had not been enough evidence to charge him.”

Things snowballed after that. Defence lawyer Franco Debono objected to further questions as they could reveal the identity of the informant. Lawyer Malcolm Mifsud pointed out that the cross-examination had already been recorded and should not be re-examined. He asked that the jury be instructed to disregard the information supplied by the anonymous source. “This person is not a witness. We have a situation where a person is saying something to police and we cannot question him,” Mifsud said.

Lawyer claims operation is illegal

Debono argued that the introduction of evidence which had not been part of the compilation of evidence was not permitted at law. “If we are going to hear about a controlled delivery you require authorisation from the inquiring magistrate, or else it will be illegal.”

“This is very serious. In the middle of Harrison’s testimony he made a reference to a new fact which is not admissible. This is a fact which renders this entire operation illegal.”

The Dangerous Drugs Act stipulates that a controlled delivery must take place with the consent of the Attorney General or a magistrate. “I have never seen this consent documented anywhere,” Debono said.

“We know why they have played this card at this stage, but they are pleasures yet to come. The former AC is anticipating a long series of questions his investigations. Godfrey Gabmin is not the spider, he’s a fly stuck in a web.”

It was “unheard of” that new evidence to be exhibited at the jury stage, argued Debono. “Especially evidence that give a completely new slant to what happened.”

The prosecution said that this consent was not in the case file.

“It would mean that these gentlemen are here today as a result of an illegal sting operation,” Debono said, asking whether it was even possible for the jury to continue on the basis of an illegal operation. “The law on controlled delivery is clear.”

Mifsud on his part added that the fact that the Criminal Code imposes a long procedure and that a trend has started for things to be hidden during the compilation stage. “The witness could not refer to the controlled delivery as there is no evidence to it in the acts of the case.”

The prosecution made reference to a document which is only in the police file, said the lawyer, arguing that “a greater prejudice than this, you cannot have.”

Not one of the police officers mentioned this in the compilation. “This is contrary to the spirit of the law and a breach of their obligation to lay out all evidence. My client has a life sentence hanging over him and they are taking this lightly. This cannot continue,” Debono said, arguing that the whole point of the compilation of evidence was for the accused to know what evidence is held against him.

The defence argued that the controlled delivery was first mentioned today in six years of proceedings. Debono said the omission made the entire operation illegal, of grave prejudice to the accused “and to the administration of justice itself.”

The prosecution pointed out that in every case of controlled delivery, the source is never revealed. “A lot of submissions have been made by the defence to the effect that this is the first time that new evidence was given at jury stage… Nowhere did the law stipulate that the consent had to be in writing. All that was required was that it be proven that the magistrate was informed and gave his consent.”

In this case, former commissioner Harrison had testified under oath that he had been given the go-ahead by the inquiring magistrate.


Judge says premature to attack evidence

But Debono was adamant: “Let us say for the sake of the argument that this consent had not been given. How am I supposed to examine the witness? The magistrate may well have expressed his consent orally, but there is no record of it.

“We were always told that the police had acted on a tip off from a third party, this is what we had been told all through the compilation of evidence. Now we are hearing that this operation was carried out with the permission of the court...
“For justice to be served, this investigation must be withdrawn from the acts of the case.”

Judge Edwina Grima, remaining unperturbed throughout, held that it was premature of the defence to attack the revelations. “Whilst deploring the fact that the witness, who had led this investigation, has mentioned for the first time at this stage of trial, the fact that a controlled delivery had taken place – a fact which had not been brought to the attention of the court during the compilation proceedings, there is no prohibition at law against the production of this evidence at this stage, given that the defence may carry out all the necessary cross-examinations to allow it to control the validity or otherwise of this investigative procedure carried out by the police. It is premature of the defence to attack the validity of the facts mentioned by the witness as it can do so after the cross-examination.”

Harrison will continue testifying tomorrow. Lawyers Giannella Camilleri Busuttil and Nadia Attard from the Office of the Attorney General are prosecuting. Lawyers Alfred Abela, Franco Debono, Mario Mifsud are appearing for Gambin, while lawyer Malcolm Mifsud is defending Babani.

Madame Justice Edwina Grima is presiding.