Trapper's closed season conviction overturned on appeal

A court's decision to fine a trapper and suspend his licence was overturned on appeal due to contradictory evidence from witnesses

A 64-year-old Gozitan trapper, who was fined 3,000 and had his license suspended last year after he was convicted of poaching in the closed season, has been cleared on appeal.

Joseph Axiaq of Xaghra, Gozo had been found guilty by magistrate Joseph Mifsud in November 2016, primarily on the strength of the testimony of a CABS volunteer who had filed a report on March 13 2016 at the Victoria police station, claiming that while on patrol she, together with some colleagues had heard a bird-caller and seen a finch decoy in a cage. They also spotted a man hiding in a bush, who had made a hasty exit upon noticing the CABS personnel nearby. A DVD of footage shot by the volunteers was exhibited in court.

Axiaq had filed an appeal and insisted that the first court could not have reasonably and legally found him guilty on the basis of the evidence it had before it. He had not been positively identified, he argued, and the footage did not show him committing any of the crimes that he had been convicted of.

The CABS volunteer had testified that she had seen the accused leaving the area and had identified the vehicle he had used, but whilst still on the witness stand she had realised that she had confused two similar cases which had occurred on the same day and had then given the court a different number plate for the car allegedly used.

But the Court of Criminal Appeal noted that in her report she had only said that the person had walked away and had told the court that “we did not see what vehicle he left in.”

The person in the footage was wearing a baseball cap, sunglasses and his face was partially obscured by a bush, noted the court and this, together with the distance from which it was taken, “does not reassure the court that the person taking the video could recognise the person in the footage.”The court also noted that no bird caller was heard in the video and that the cages filmed in the hide were empty. The accused was not filmed in the hide, but a distance away from it, it observed.

In addition, a police sergeant who had released an affidavit saying that his investigations had led him to identify Axiaq was never brought to testify in court.

The accused consistently denied all involvement, saying the person on the video was not him, neither did the field belong to him and nor was he there on the date in question.

Chief Justice Silvio Camilleri, in his judgement on the matter, observed that this left only the evidence of the CABS volunteer linking the accused to the case, and that her evidence was unreliable due to contradictions.

As it overturned the man's conviction, the Court of Criminal Appeal, however, made it clear that it shared the first court's strong views on those who break hunting and trapping laws and “the inestimable damage it does to birds which are amongst the most beautiful and most vulnerable creatures and which our countryside is very short of.”

Roberto Montalto was defence counsel.

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