The Court of Criminal Appeal declared that a judgement is null and void since the First Court failed to list the Articles of Law when it found an accused guilty of all the charges. This was held in a judgement delivered by Madame Justice Consuelo Scerri Herrera on 22 January 2019 in The Police vs Keith Pace.
Pace was accused of a number of charges concerning thefts that took place in June and July 2015, and he was also accused of breaching protection orders, conditions of bail and being a recidivist. The prosecution asked that the personal guarantees imposed in bail be paid.
The Magistrates’ Court found the accused guilty and awarded a probation order for three years and a treatment order for three years for drug rehabilitation.
The Attorney General filed an appeal stating that this judgement is null and void or else to confirm that the accused is guilty but give a different punishment.
With regard to the first ground of appeal, the Attorney General argued that since the accused admitted to all the charges, the Magistrates’ Court should have listed all the Articles of Law when the Court found him guilty. The AG specified Article 579 of the Criminal Code concerning the breach of the protection order and conditions of bail and Article 23 of Probation Act.
The First Court held that the breach of conditional discharge was admitted to, but the prosecution failed to present the judgement and did not provide details of the charges and therefore it could not deal with this charge.
Furthermore, the AG argued that the Court never declared that the accused was found not guilty that he was in breach of a conditional discharge and bail. According to Article 428(3) of the Crimial Code, these deficiencies should result into a null and void judgement.
The second ground of appeal is based of the fact that the Magistrates’ Court did not find the accused guilty of breaching conditional discharge of another case and the conditions of bail of a case which was still pending. The Court did not mention the relative articles of law of these charges when passing judgement.
The AG held that the accused had registered a plea of guilty to all the charges including these. Although the prosecution did not present the judgements, all the Court should have done was to order the Registrar to pass on the judgements in question and therefore, the same Court would have been in a position to decide even on this point.
The Registrar of the Court could also have given the court a copy of the decree when the accused was given bail on another case. In another case where bail was given, the prosecution did give the Court a copy of the decree and therefore, the Magistrates’ Court could have easily found the accused guilty of a breach of condition of bail.
The AG also contested the punishment awarded by the first court. Article 96 of the Criminal Court lays down that any person attacking a public officer may be awarded a prison sentence from six months to two years imprisonment and a fine between €4,000 and €10,000. Therefore, the Court is bound to give both a prison sentence and a fine and they are not alternative to each other.
The Court should not have given a probation order. The AG pointed out that Pace had various opportunities to reform himself, but did not grab to any other them. Furthermore, the accused had admitted to also being a recidivist, but the Court failed to mention it in the judgement.
The Court of Criminal Appeal pointed out that Article 382 of the Criminal Court is an extremely important article, as it lists the requisites of a valid judgement. It reads:
“The court, in delivering judgment against the accused, shall state the facts of which he has been found guilty, shall award punishment and shall quote the article of this Code or of any other law creating the offence.”
Therefore, there are three elements for a judgement to be valid. A judgement must mention the facts in which the accused is found guilty, the court must give a punishment and list the article of the law of the offences, the accused is found guilty of. Every judgement must have these elements.
There are a number of judgements that give a strict interpretation to Article 382 and consider that if one of the elements does not exist then the judgement is null. This was the case in Pulizija -v- Emanuel Azzopardi, where the Court had said that even the Court could raise this point.
Madame Justice Scerri Herrera held that there were failings by the first Court. The various judgements have held that these failings render the judgement null.
The Court then moved to declare that the judgement in this case is null and ordered that the case be sent back to the Magistrates’ Court and the accused will be put in the same position as before the Court pronounced judgement.
Avv. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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