Entrapment defence cannot exonerate accused, judge says in trafficking trial

A judge has turned down a request, made by lawyers defending two men on trial for drug smuggling, that it disallow reference to the fact that the police were aware of the plan.

Former barman Godfrey Gambin, 40, from Iklin, was arrested in July 2010 together with Libyans Adel Mohammed Babani, 51 and Nabeil Ibrahim Saleh, 44, after police found nearly 20kg of cannabis resin in the men’s possession, shortly after the men arrived at Xemxija on a speedboat.

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.

Today’s sitting was marked by ill-tempered exchanges between the defence and prosecution benches, over the legality and implications of Monday’s revelation that the accused were nabbed in a police sting.

After hearing the testimony of former Assistant Commissioner Neil Harrison, Superintendent Norbert Ciappara, Inspector Dennis Theuma and Inspector Pierre Grech, Babani’s lawyer Malcolm Mifsud requested the court to declare that there had been no evidence of a controlled delivery or, alternatively, declare the entire police operation to have been illegal, as the elements of the controlled delivery and the third party do not fall under the qualifications at law.

“From the testimony, it was clear that there was no police presence on the boat. The police had only known that the drugs were going to arrive in Malta through a third party, whose name they know but is confidential, and that this did not constitute a controlled delivery as expressed in the law,” Mifsud said.

Aside from this, it appears that documents authorising a controlled delivery had been in the possession of the police from an early stage in the investigation and these had not been exhibited.

“According to the ‘best evidence rule’ every document is to be presented before the courts, both during the compilation stage and the trial stage,” Mifsud said.

The defence requested that any future prosecution witnesses be prohibited from referring to “this illegal operation.”

The prosecution said it had no problem with exhibiting these documents to the court “in spite of this not being the norm”, prosecutors Giannella Camilleri Busuttil replied. She requested the court summon the witness to exhibit the authorisation for the controlled delivery.

But in a decree this afternoon, Madame Justice Edwina Grima rejected both submissions. She held that although the prosecution was obliged to prove their case beyond reasonable doubt and present the best evidence available to them for this purpose, this did not entitle the defence to object to the way this evidence was presented. “Now the issue of proving that the controlled delivery operation is legally valid rests with the prosecution... it is up to the defence, to then neutralise the evidence...”

The judge ruled that it was only at the closing stages of the trial that the court could give instructions to jurors with regards to the law and the validity or otherwise of evidence.

Judge Grima explained that the defence of entrapment would have only serve to mitigate punishment, as it could not exonerate the accused from criminal responsibility.

In the Maltese legal system, a person who knowingly commits a crime cannot argue that he had been urged or ordered to by other persons and be exempt from criminal responsibility. “Whether or not this controlled delivery had been a valid one is a defence that the accused can submit to the jury, after they have been given the opportune direction by the court in its closing address.”

The court also rejected the Attorney General’s request to exhibit the authorisations for the sting operation, saying it would prejudice the accused’s defence. The court could order the prosecution not to ask certain questions, the judge noted.

Later this afternoon, PC David Borg testified to seeing Nabil in a Hyundai Tucson and Gambin in a Peugeot. The officer recalled seeing a large pink bag being thrown out of the Peugeot by Gambin. 
As he approached the vehicle, he had found two packets on the ground nearby. He had found Gambin seated in the car, he said. The accused had made no attempt to escape.

He had first seen Nabil seated in the Hyundai, “The other guy was not in the car when I got there,” said the officer. 

The trial continues.

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.