Melchior Spiteri murder acquittal confirmed on appeal

Court of appeal hits out at practise of non-public submissions in criminal cases, saying lawyers should not dare make requests to the court if not in the open

The Chef Italy restaurant in St Julian's, where Vittorio Cassone was shot dead in 1993
The Chef Italy restaurant in St Julian's, where Vittorio Cassone was shot dead in 1993

The Superior Court of Criminal Appeal has upheld a jury’s acquittal of Melchior Spiteri in a 2016 murder trial.

Spiteri, 43 from Cospicua, had been accused of the murder of businessman Vittorio Cassone. Cassone had been shot dead during a hold up at the "Chef Italy Gastronomia" restaurant in St Julians, on 13 January 1993, by a hooded man. The shots had been fired after the cashier was unable to open the till.

Spiteri had been tried by jury in 2016 but found not guilty of murder by a unanimous verdict.

The Attorney General had filed an appeal, objecting to the verdict and the judgment on the grounds that a grave irregularity had occurred during the judge’s closing address.

The AG said that at that late stage in proceedings, the defence had asked, via a court messenger, to speak to the judge. This was allowed and the meeting took place in the judge’s chambers, with prosecuting lawyers also present.

In that meeting, defence lawyer Franco Debono had informed the judge that he had been informed that a particular juror, who was the same age as the accused, was from Cospicua and possibly knew the accused. He had also said that she had previously commented on Facebook about a court decision in a drugs case and therefore could be prejudiced against the accused. It requested the substitution of the juror.

The AG had argued that, if anything, the comment would have been prejudicial to the prosecution and not the defence.

After this episode, the trial had continued and the jurors returned a not guilty verdict after due deliberation.

 The Attorney General had appealed the verdict, arguing that the juror had been confused by the issue and was unable to pass judgment serenely.

 In its judgment the Court of Criminal Appeal, presided by Chief Justice Joseph Azzopardi, judge Joseph Zammit McKeon and judge Edwina Grima noted that the AG’s argument found no comfort in the acts of the case.

There was no record of the defence requesting the replacement of the juror, noted the court. “By this the court by no means is implying that the Attorney General invented this issue, because the defence itself agrees that the facts occurred as stated in the appeal application.” The request appeared to have been made in an informal manner in the judge’s chambers, said the court.

“In fact, as it thought the outcome would be favourable to it, the prosecution did not insist on the dissolution of the jury, said the court. Neither did it ask for the dissolution due to the fact that the judge had allegedly communicated with the juror privately. It was only when the not guilty verdict was reached did the AG find an objection…”

Furthermore, the request for the replacement of a juror could only be made before the jury is empanelled, said the court. In this sense the AG was right to say that the defence’s request could not be entertained at the last stage of the proceedings, it said.

“The ambiguity of the AG’s stand is most evident,” observed the three judges.

The AG argued that the communication between the judge and the juror had an effect on the verdict, but the court threw out this argument as a “gratuitous suggestion.”

Even if it had accepted the reasoning of the AG, said the court, about how the defence’s request  had been handled, this doesn’t mean that the verdict was unjust, because the AG made no complaint to this effect during the proceedings. The AG had not indicated where the alleged failure of the administration of justice had taken place, said the court, “but only said that in his opinion the verdict was mistaken both legally and factually.”

The Court of Criminal Appeal threw out the AG’s case saying there “wasn’t the slightest evidence, even in the acts of the case, that could remotely indicate that one of the parties suffered some form of irreparable prejudice or that the independence, impartiality and autonomy of the jurors was somehow affected.”

The judgment had a sting in the tail, however. Indirectly criticising the insidious culture of “approaching the bench” to conduct criminal proceedings out of earshot of the public, the judges said: “Every submission must be made in the open to preserve the principle of transparency."

"No lawyer…must dare make requests to the court if not in the open, even if these requests take place in the presence of all the parties and even if done with good intentions. Not only this, but every action that occurs in judicial proceedings must be reflected in the records of the case.”

Lawyers Franco Debono and Marion Camiller were defence counsel to Spiteri.