No rights breach in 2014 cocaine controlled delivery, court says

A man who accepted a package of drugs during a controlled delivery in 2014 has lost a Constitutional case to have his rights declared breached.

Christopher Polidano had been taken into custody after Rachael Fred from Italy was arrested on her arrival in Malta on the Catamaran from Pozzallo with three kilograms of cocaine in a false bottom in her suitcase.

The courts had heard how the police organised a controlled delivery to ascertain who was the person who was accepting the consignment.

This led the police to arrest 41-year-old Christopher Polidano, from Safi. When the police had tried to stop the man, had tried to escape by driving on the pavement, hitting several parked cars in the process. He stopped after crashing into an electricity pole.

Polidano denied the charges of drug trafficking brought against him.

He had filed Constitutional proceedings through his lawyer Franco Debono, who made several arguments against the constitutionality of the man’s pending jury trial.

Among them was the dual role of the AG as public prosecutor and Chief Government legal consultant, quoting local jurist JJ Cremona who had written that “as a legal counsellor to the Government, and at the same time an author of all the law projects, he occupies an ideal position to influence the course of criminal legislation ... Attorney General should not be in a position to both influence criminal laws in the legislative branch and then utilize such function before the judicial organ of the State.”

Another argument brought was that of the illegality of controlled delivery which, Debono said, walked a tightrope between legitimate police tool and entrapment. There was also the fact that the law at the time did not allow a suspect’s lawyer to be present during interrogation and only allowed persons under arrest the facility of a phone call to their legal counsel.

Fred had only released a statement to the inquiring magistrate and had not testified in the case against Polidano. This meant that the only time she could be cross-examined by the defence was at the jury stage, depriving the defence of a number of witnesses which could be produced as a result of her evidence.

Madam Justice Joanne Vella Cuschieri, presiding the First Hall of the Civil Court in its Constitutional jurisdiction, ruled that the court could not see how the dual role of the Attorney General had anything to do with this case in a manner which could impinge on the independence and impartiality of the court which would celebrate the trial.

It was only at the jury stage that the legality or otherwise of the controlled delivery could be decided, added the judge.

Polidano had argued that as the Police had switched the envelope containing the drugs with a dummy, the authorisation should have come from the Attorney General and not the inquiring magistrate.

But the judge agreed with the AG’s submissions on this point, saying that this was a purely procedural complaint and not related to any breach of human rights, and should therefore be addressed by the Criminal Court and not hers.

Quoting the case of Farrugia v Malta decided by the European Court of Human Rights in June 2019, the judge said that having seen Polidano’s statement, in the circumstances, the fact that it had been released without a lawyer being present could not be considered as having substantially affected his position.

On Fred’s statement, it noted that she had not complained about the manner in which it was taken and once this was the case, this could not be interpreted as having had a detrimental effect on the plaintiff’s rights.              

It noted that the Criminal case was at an early enough stage to have Fred be cross-examined and so also dismissed this ground.