Phone recording insufficient to convict woman of perjury

A man’s attempt to use recordings of a phone call with his ex-wife - in which she directly contradicts what she had told the court under oath - to get her convicted of perjury has backfired with the court declaring the evidence insufficiently reliable.

The couple, that had their marriage annulled by the Church, were fighting a custody battle for their children. The husband claimed that his former wife had given false testimony on two occasions. As part of his criminal complaint against the woman, the former husband had sent the police commissioner an audio recording, together with a transcript of the recording, in which the woman directly contradicts what she had told the court.

He claimed that she lied when asked about a proposition she had made to him while she was residing at ‘Dar Merhba Bik’.

The man claimed his former wife had proposed to return to the matrimonial home as long as he tore up an agreement on the separation of assets which they had entered into after their marriage was annulled.

When asked about this during the civil proceedings, the wife twice denied making the offer. The husband had then presented the court with a recording in which his wife could be heard making the proposition. The woman had confirmed that it was her voice in the recording.

The man had then filed a criminal complaint with the Police Commissioner, accusing his ex-wife of testifying falsely, but the commissioner had declined to launch criminal proceedings against the woman as the civil case was still underway.

The man had objected to this, arguing that there was no legal basis preventing the police from prosecuting. He also filed a challenge to proceedings against the commissioner of police demanding that proceedings be started against his ex-wife. 

But the Court of Magistrates rejected his request on the basis that it could not rely on a recording, which it said could have been taken out of contest. The man had filed an appeal to the decision, which was ruled in his favour, prompting charges to be pressed against the ex-wife.

Magistrate Joe Mifsud, presiding over the criminal case against the wife, however ruled that he could not rely on a recording that was taken without the woman’s knowledge and which could have been taken out of context, adding that the required elements to find the woman guilty of the charge brought against her were not in place.

Quoting from the 2007 case Republic vs David Norbert Schembri, the court noted that even if a recording was not illegal in itself, it could be inadmissible as evidence where the recording was obtained illegally. The party exhibiting a recording must convince the court that there is a prima facie case of the recording's authenticity, show its provenance as well as the history of the recording up till the moment of it's exhibition in court, said the magistrate.

He declared the woman not guilty of the charges.

Mifsud also issued a strongly-worded warning against a practice which he said was developing in Gozitan courts, in which whenever a witness changes testimony, charges for perjury are immediately filed. He described this as a waste of time and money, adding that this usually takes place due to personal animosities between “people who expect to dictate what should be said and done inside the courts.”