Posted Friday, September 14, 2018
Court of Criminal Appeal unconvinced by prosecution’s version of events

The Court of Criminal Appeal upheld an appeal lodged by former employers, claiming that it was unconvinced with the complainant’s version in her testimony. This was held in a judgment delivered by Madame Justice Consuelo Scerri Herrera, on 4 September 2018 in Il-Pulizija -v- Joseph Azzopardi and Edward Vella.

Both Azzopardi and Vella, directors of Bottega Del Marmista Ltd,  had been accused that they did not pay their employee’s wages, allowances and bonus.

The Magistrates’ Court found them guilty and fined them €300 and ordered them to pay Erica Sammut Alessi €19,076.13. However, this judgment was appealed on the ground that these payments had, in fact, been paid and therefore, the judgement constituted a miscarriage of justice. Furthermore, the accused did not consider that Sammut Alessi carried out her duties as they had expected her to do. The only justified claim is that Sammut Alessi was not paid during the period Joseph Azzopardi was unwell.

Madame Justice Scerri Herrera held in her judgment that one of the cardinal principles of law is that the Court of Appeal does not disturb the first court appreciation of the evidence. The Court of Appeal looks at the evidence to see whether the first court could have arrived to its conclusions. If the Court of Appeal finds that the first court could not reach the conclusions it reached, then the Court of Appeal, could changes the conclusions. In fact, in this case, the accused based their appeal on the ground that Erica Sammut Alessi is not credible. The Court pointed out that the accused were charged because they were the directors of the company, and the company failed to pay the employee’s wages and benefits, amounting to €18,307.35.

The evidence produced showed that Sammut Alessi was employed with the accused’s company. A Labour office witness told the court that Sammut Alessi had approached him and had shown all her payslips. The Department had approached Azzopardi, and he informed them that he could not pay, because Sammut Alessi had taken all the files and he had paid her in cash.

Erika Sammut Alessi testified and informed the company that she worked as a clerk with the company and inputted data in the computer, which included he wages. There were other employees, but some left, because of lack of payments of their wages. She explained that due to the fact she was not being paid, she was hard up and had financial difficulties.

Azzopardi also testified and did not agree with this version of events. He confirmed that his former employee worked mostly on the computer, and also dealt with the payroll. He paid his employees in cash and Sammut Alessi issued the payslips. After she left the computer was empty and therefore, there was no evidence that his employees were paid. When he was admitted to hospital for 12 weeks, he was going to pay them when he collected he cash. He complained that Sammut Alessi did not start work on time and took a large amount of sick leave.

The Court pointed out that it is the prosecution who has to prove the charges, since the accused are presumed innocent as stipulated in Article 40(5) of the Constitution. In a previous judgement Il-Pulizija -v- Michele Borg decided on 23 May 1996 by the Court of Criminal Appeal, held that these principles are based on the English criminal law and are principles of public order. The prosecution has to prove its case beyond reasonable doubt and any doubts go in favour of the accused. Lord J. Denning in his judgement in Miller v Minister of Pensions (1935) said:

“that degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt but nothing short of that will suffice.”

According to Article 638(2) of the Criminal Code, the court may choose to either believe a testimony or otherwise. Therefore, the court has to decide which witness is credible and it is the Court which has to examine the other evidence too. In fact, the circumstance evidence may be the most important evidence in the case and are aimed at indicating whether the accused committed the crime.

In this particular case, the court is faced with two opposing versions. The Court of Criminal Appeal would not have heard the witnesses, but would depend on transcripts. In these cases all there is, are the transcripts of the witnesses. From these transcripts it transpires that Sammut Alessi was instigated to testify. She claimed to be merely a clerk, but from her job description she was more of an administrator. The Court pointed out other instances of discrepancies in her testimony. On the other hand, Azzopardi was more credible and therefore, the prosecution did not manage to prove its case.

The Court of Criminal Appeal confirmed that the two accused were guilty but reduced the fine to €150 and did not order them to pay €19,076, but allowed the complainant to seek a civil remedy if she wished.

Dr. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
 
This article may also be accessed on Malta Today.
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