Court error nearly leads to man's imprisonment

An oversight by court registrar had mistakenly recorded the appeal as having been abandoned, rather than adjourned

A mistake by a court registrar almost led to a man’s appeal from an 18-month jail term being lost, before the error was luckily picked up by his lawyer.

Jonathan Farrugia, one of three men currently facing separate proceedings over his alleged involvement in the attempted bombing of a Fgura couple last year, had been condemned to an 18-month jail term after being found guilty in 2016 of falsifying banknotes.

He had filed an appeal from that judgment.

The date of the first hearing of the appeal in November 2017 had coincided with a criminal trial being presided by the same judge and for that reason, the Judge had expressly ordered the appeal hearing to be adjourned to a later date, in March 2018.

But by some oversight, court registrar had mistakenly recorded the appeal as having been abandoned, due to the fact that the appellant had failed to appear.

A non-appearance under these circumstances would normally lead to the appeal being deemed abandoned, thereby bringing into effect the judgment at first instance, unless the appellant provides justification for his no-show by means of a sworn application within four days.

But in this case, no such application was filed since the registrar’s error had not been noticed. In addition to that, after the re-scheduling of that first hearing, there had been three subsequent adjournments throughout 2018, before the case was put off for judgment even though no final submissions had been made.

Meanwhile, the judge presiding over the appeal retired and the case was assigned to a different court, presided over by Madam Justice Consuelo Scerri Herrera, who appointed the case for hearing on February 19, 2019.

It was during that hearing that prosecuting lawyer Elaine Mercieca Rizzo, from the office of the Attorney General, had argued that the appeal had been abandoned and that the conviction was therefore confirmed.

That argument was quashed, however when both the appellant’s lawyer, David Gatt, as well as Inspector Malcolm Bondin, who had prosecuted before the Magistrates’ Court, took the witness stand to confirm under oath that the appeal had never been abandoned but only adjourned.

The court registrar who had been responsible for the records of the appeal, was also summoned to testify on Thursday, admitting under oath that it had been an error on his part and that the Judge had ordered the case to be adjourned.

Passing judgment on the matter, Madam Justice Scerri Herrera observed that this had been “a matter of serious shortcoming by the Court registrar” who had not only recorded the appeal as abandoned, but had even failed to cancel the appellant’s admission ticket to prison, although his appeal was still pending.

It would be unjust for the appellant to be penalized for an error or shortcoming by the registrar who had failed to follow procedure, declared the Court, highlighting that the accused would end up serving an 18-month jail term without even having made submissions in his appeal.

“It was certainly not the intention of the legislator to commit an injustice with a person accused before the Court of Criminal Appeal,” concluded Madam Justice Scerri Herrera, as she ordered corrections to the records of the case, adjourning the appeal for continuation.

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