Trapper's case to be heard again after judgment typo

The Court of Appeal has annulled a sentence handed to a man convicted of bird trapping in the closed season, after a mismatch in the typed judgment and the magistrate’s handwritten judgment were noted.

Carmel Xerri had been fined €1,600 and had his trapping licence suspended for three years in May 2018 after he was found guilty on the basis of his statement and video evidence compiled by an environmental activist.

The case dates back to March 2017, when Xerri was arrested and charged with illegal trapping in the closed season and using an illegal bird caller, amongst other charges. The Court of Magistrates had found him guilty and Xerri’s lawyer, Kathleen Grima, had filed an appeal.

In his appeal, it was argued that no lawyer had been present when Xerri gave his statement and that the video footage exhibited was a collection of short clips, spliced together. The incident in question was alleged to have taken 30 minutes, Grima said, and so it was expected that 30 minutes of footage be exhibited, not the shorter highlight reel.

Moreover, the video showed two masked men in their trapping hide and then cuts to three men walking in fields. “It is submitted that the gaps between the first film and the second cannot be filled with suspicion or suppositions.”

The defence observed that the activist herself had testified to seeing trapping nets laid out and later being gathered by two individuals, but not to seeing any actual trapping. Nor had she seen anyone waiting near the nets which were laid out.

It was argued that the simple fact that nets had been laid out in the closed season didn’t mean that the appellant could be automatically convicted of trapping at the time. In addition, no birdcaller use was recorded in the video, pointed out the appellant. This, together with the difficulty in positively identifying the masked men made it harder to link him to the crime.

A further stumbling block emerged in January 2019, when the defence pointed out to the court that the sentence was handwritten by the magistrate before being handed to the defence and that it did not match the typed version presented at the appeal stage. This would lead to the nullity of the sentence, it was argued.

Madam Justice Consuelo Scerri Herrera, presiding the court of appeal, observed that it was clear that the appeal application was drafted on the basis of the handwritten copy, which indicated that the accused was being found guilty of all the charges. On the other hand, the typed version stated that he was found guilty of six charges and the last charge was time-barred but inflicted the same punishment. “Therefore it emerges that there are two conflicting sentences with regards to what charges the appellant is being found guilty of.”

The court quoted at length from case law which established that when passing sentence, the court must state the facts upon which the accused is being found guilty, give the punishment and mention the article of the law which contemplates the crime, said the court. There was no necessity that the sentence itself be written by the magistrate, it said.

In this case, despite the typed version observing the prerequisites for validity, the words which were typed did not fully reflect that which was initially written, leading to two conflicting judgments. In view of this, the court annulled the sentence and ordered that the case on the merits be heard afresh.