Appeals court criticises magistrate for relying on report by court expert who got it wrong

The Court of Appeal agreed with the appellant that first court had wrongly interpreted the law

The Court of Criminal Appeal has overturned a woman’s conviction for falsely reporting another woman for beating her daughter, ruling that the court of first instance had relied on a court expert who reached the wrong conclusions.

Francine Cini had been charged and found guilty of falsely reporting a woman for beating her daughter. The Court of Magistrates in Gozo had jailed her for eight months.

Cini had filed an appeal against her sentence, arguing that there were procedural shortcomings, a wrong application of the law and an excessive punishment.

In his judgment Judge Giovanni Grixti observed that the court-appointed expert had been mistaken when he concluded that the crime of simulation of an offence had been committed.

In her appeal submissions, Cini’s lawyer had argued that she could never have been found guilty of the crime of simulation of an offence.

The Court of Appeal agreed and ruled that the court expert had wrongly interpreted the law. “Having seen the report by the court expert that the court of first instance embraced and made its own, it emerges that this court expert had been mistaken when he concluded that the crime under subarticle (2) of section 110 of the law was proven.”

In a later paragraph the judge was more blunt: “Frankly this court cannot understand how this could have happened when even the facts of the case law cited were very similar to the case in question…the teaching about the applicable doctrine was clearly explained and should have served a guideline for the resolution of the case under scrutiny.”

In this case, the appellant had reported a woman for beating her daughter and had allegedly also forced her daughter to say the same. “In this case it could be worthwhile to discuss in depth whether the facts satisfy the requirements for the crime contemplated in section 110(1) of the Criminal Code, [fabrication of false evidence] as there is an allegation of the fabrication of evidence, but the appellant had been found not guilty of this same crime.”

The court expert had been wrong to state that the crime under subarticle (2) of section 110 [simulation of an offence] had been proven. “It is necessary that aside from the report, there must also have been the fabrication of evidence relating to the crime which is brought as evidence against the person reported.”

Subarticle (2) of the article of the law refers to a report of a crime which the person is aware never happened but which doesn’t expressly indicate the person responsible, said the court.

The facts of the case should never have been framed under that article of the law, said the court. “The allegation that the appellant had forced her daughter to claim that she had been beaten by the person reported emerges as true, even if this is debatable. The fabrication of a crime with the intention of using it as evidence against a person has the elements of 110(1).

The court upheld the appeal and overturned the judgment at first instance, finding the applicant not guilty of the charge of simulation of an offence and revoked the woman’s punishment in its entirety.

It also took the opportunity to point out that the Magistrate had nominated the court expert during the arraignment without giving a reason for this decision, instead of hearing witnesses testify viva voce. “It bears observing that a more strict observance of that laid down in the law brings with it less complications and less delays to proceedings.”

Lawyer Joe Giglio appeared for Cini.

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