Dangerous driver who ran over MP’s dad acquitted over mistake in charge sheet

A man has been acquitted of dangerous driving charges after a bitter and staggeringly convoluted 12-year court battle in which a judge noted an “unheard-of and manifestly disproportionate procedural tenacity” by the prosecution.

The case dates back to 4 July, 2006, when Nicolai Magrin – who in a separate case had pled guilty to bribery in the ADT driving test scandal in 2007 – was accused of dangerous driving under the influence of intoxicating substances and of hitting and slightly injuring a pedestrian in Tower Road, Sliema, on the 29 April 2006 at 8.15am.

The victim was Giuseppe Cuschieri, 71, at the time of the incident, and father of former Labour MEP Joseph Cuschieri.

However, the incident occurred at 8.15pm – in the evening, not in the morning – and therefore Magrin was acquitted of the charges in 2006.

The prosecution did not appeal the judgment.

Subsequently, a new charge was filed against Magrin in November 2006 for the same accusation, but on this occasion the time of the accident was correctly indicated on the charge as being 8.15pm.

Magrin raised the plea of ne bis in idem – not twice in the same [thing] – a plea raised when a person is facing justice more than once for the same fact, and was acquitted by the Court of Magistrates.

This time the prosecution did appeal, but the Court of Appeal decided that the ‘ne bis in idem’ did not apply and sent the acts back to the Court of Magistrates for the case to continue.

So, the defendant requested a constitutional reference on the breach of the ‘ne bis in idem’ principle, insisting that he had a right not to be tried twice for the same fact.

In March 2009, Judge Joseph R. Micallef decided that there was in fact a breach of the principle, and given that it was a constitutional reference, sent the acts back to the Court of Magistrates so that the case be disposed of according to the ruling.

The Court of Magistrates acquitted Magrin and there was no appeal from that ruling.

However, it transpired that the AG had filed an appeal to the constitutional judgment by Judge Micallef, yet without notifying Magrin at the time he was acquitted by the magistrates’ court in February 2010.

The AG also filed a new case in the Civil Court, saying the 2010 acquittal should be declared null since the magistrate should have awaited the final decision from the appeal to the constitutional reference case.

In turn, the appeal filed on the constitutional reference was put off until this new civil case was to be decided. In October 2013, Judge Silvio Meli acceded to the Attorney General’s pleas, ruling that the acquittal should not have been delivered before the final decision on the appeal to the constitutional reference.

However, Judge Meli had some very strong words for the prosecution and the commissioner of police, saying that the “procedural saga” revealed “considerable procedural incompetence.”

The fact that there were at that point six separate cases and counting, related to the incident, led the judge to conclude that this was down to either “gross incapacity and incompetence of the prosecution, serious malice in the execution of the judicial process, or unheard-of and manifestly disproportionate procedural tenacity.”

Magrin also filed an appeal from Meli’s judgement, saying the AG should have appealed the judgment of his acquittal instead of filing a new civil case. But his appeal was lost in November 2017 since the court argued that if there was a constitutional reference, the court was bound to wait until such reference becomes final.

The saga came to an end when the AG’s appeal on the constitutional reference was decided this week, with the Constitutional Court finally deciding that the second criminal proceedings instituted against Magrin on the same incident but with the time of the crime corrected, amounted to a breach of the ‘ne bis in idem’ rule.

Kathleen Grima was defence counsel for Nicolai Magrin.