The Attorney General must indicate under which articles of law the accused is accused, and the Court must consider the Article mentioned in the Attorney General’s note. This was held in a judgement delivered by Magistrate Dr Natasha Galea Sciberras in Il-Pulizija -v- Hasan Jama Hassan decided on 6 February 2023.
Hassan was accused of attempted homicide on one person in November 2020, as well as slight bodily harm to another person, and was carrying a firearm.
The Court heard the evidence where the police inspector investigating the crime testified that she was informed of a stabbing in Birżebbuġa, and the victim went to the police station and named the aggressor. The accused was arrested and taken to the police station for interrogation. The police officer who went to the scene explained that the victim pointed out the accused when they went to where the fight broke out.
The victim testified and explained that he arrived home after work and was carrying three cans of beer. The accused followed him and attacked with a knife. He ran towards the police station. When he returned with the police, the accused was still there.
The Court dealt first with the defence’s submission that the statement was in English when the accused does not know English. The defence asked that the Court does not take cognisance of this statement. The Court drew attention to the fact that an interpreter assisted the accused during the interrogation. The Court was convinced that the accused was aware of what was being said during his arrest. His rights were explained in Arabic by the interpreter. In his statement, the accused held that he was not the person who attacked the victim and did not possess a knife. He said that he knew the victim but did not attack him.
The charges are derived from Articles 214, 215, 221(1) and (2) of the Criminal Code. Article 214 and 215 read:
“214. Whosoever, without intent to kill or to put the life of any person in manifest jeopardy, shall cause harm to the body or health of another person, or shall cause to such other person a mental derangement, shall be guilty of bodily harm. 215. A bodily harm may be either grievous or slight. “
Article 221(1) states that slight bodily harm is when the injuries are not listed in law describing grievous bodily harm. If caused by the arm, the punishment is two to seven years imprisonment.
The Court quoted from Il-Pulizija -v- Joseph Grech et of the Court of Criminal Appeal of 31 May 2017, where it was held that the Attorney General lists the articles of the law which define the charges. It is the Court that should decide whether the accused is guilty of those articles of the law or not. The Attorney General’s notes are intended to guide the Court on which articles of law it should decide the case.
In another judgement Il-Pulizija -v- Michael Carter, decided on 7 December 2001 by the Court of Criminal Appeal, the Attorney General cannot increase the charges if not dealt with in the compilation of evidence.
In this case, the Court criticised the prosecution for being unclear on the crime the accused was charged with. The Attorney General did not indicate the articles of the law on the offence of attempted wilful homicide. The Court decided, that it would discard the first charge of attempted wilful homicide. The Attorney General indicate an offence on the person, which is mentioned in the second charge of slight bodily harm. Furthermore, the Attorney General listed the aggravated circumstances of this offence. This is not reflected in the charge sheet. This increase is not permitted by law because a correction to the charge sheet was not requested.
The Court held that concerning the evidence produced, there were no eyewitnesses to the attack, and the accused denies that he attacked the other person. The accused held that he was at the Birzebbugia beach when the attack took place. The victim indicated the same area; therefore, the accused corroborated this. Another relevant piece of evidence that the accused confirmed what the victim said was that he had asked for a cigarette. Both men said they met each other on the night of the attack. Furthermore, the victim was further corroborated since the doctor confirmed that he suffered stab wounds. The charges under the Arms Act was proved. Article 5(1) of the Arms Act reads:
“5.(1) Without prejudice to the other provisions of this Act, no person shall keep in any premises or have in his posession, under his control or carry outside any premises or appurtenances any firearm or ammunition listed in Schedule II, without a licence under this Act.”
In this case, no firearms were involved; therefore, the Court cannot take cognisance of this Article mentioned in the Attorney General’s note.
The Court criticised the prosecution for not getting evidence on whether the accused had a licence to carry a knife in terms of Article 8 of the Arms Act. In criminal cases, the Court cannot presume that the accused had no licence, but the prosecution must prove its case.
The Court moved to find the accused guilty of causing slight bodily harm and awarded him a 18-month prison sentence.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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