The Court must be convinced that the evidence brought before it was not tampered with. This was held in a judgement delivered by the Court of Criminal Appeal on 5 September 2024 in the Police vs James Zahra. The court was presided by Mr Justice Neville Camilleri.
Zahra was charged with breaching public peace and committing crimes against public decency on January 2024 in Kalkara.
On 29 May 2024, the Appellant, James Zahra, was condemned to a conditional discharge for a year, after he was found guilty of the two offences.
Zahra appealed, asking the Court of Criminal Appeal to revoke the judgement of the Magistrates Court.
The evidence of this case showed that this was a dispute between neighbours. The neighbour was taking out a boat from his garage but could not because of the manner by which Zahra was parked. The neighbour’s daughter knocked on the Appellant’s door, but nobody answered. Later the neighbour called the police for their assistance. The Appellant then emerged and started an argument with his neighbour and hurled insults towards him.
The Court of Criminal Appeal held that it is a long-established rule that the appellate court does not disturb the analysis of the evidence. This principle was held in a previous judgement the Police vs Joseph Aquilina decided on 5 December 2023. In the judgement, the Court of Criminal Appeal held that it does not analyse the evidence from scratch and does not decide the case by replacing the work that the Magistrates’ Court carried out and arriving to the conclusion whether the accused is guilty or not guilty.
The Criminal Appeals Court’s role is to revise the work carried out by the first court and to see whether it could have reasonably arrived to the first court’s conclusions.
In the case under review, the Appellant argued that the first court based its judgement on the films found in the acts of the case, however, there was no evidence of who collected these films and therefore they should not have been admissible. The Court of Criminal Appeal agreed.
The Court quoted from the Republic of Malta vs Clayton McKay decided by the Criminal Court, which said that the accused must be guaranteed that the evidence is genuine. The accused should know how the evidence was collected and its movements. The judge should have peace of mind that its movements are traceable. This is something that the prosecution must prove. In the People vs Connelly, a US 1974 judgement, held:
“When the evidence itself is not patently identifiable of is capable of being replaced or altered, admissibility generally requires that all those who have handled the item ‘identify it and testify to its custody and unchanged condition.”
The Court of Criminal Appeal ruled that the films are inadmissible.
As to the second ground of appeal, the second charge filed against the Appellant is that he grabbed his private parts. The Court held the Appellant, who explained that he was scratching the groin area, because he has hernia. The Court read the testimony of the injured party and her daughter, which were consistent with each other. The Court quoted from the Police vs Vincent Farrugia delivered by the Court of Criminal Appeal on 20 December 2022, which said that if one witness is believed and the prosecution would have managed to reach the level of evidence to beyond reasonable doubt, this would be sufficient to prove the case.
The Court quoted from another judgement the Police vs Clyde Caruana decided on 31 October 2022, which held that not every conflict should go in favour of the accused. The Court is free to choose a version, if it fits the criteria listed in Article 637 of the Criminal Code. Saying all this, the court held that it was believing the injured parties.
The third ground of appeal aimed that showing that the incident did not take place in public. The incident took place in a stairway in an enclosed area and therefore, could not be seen in public or was in the line of sight. The Court referred to the testimony of the injured party, which was deemed credible and believable and therefore, dismissed this ground of appeal.
In his fourth ground of appeal, the Appellant said that he did not have any intention to do these gestures. He complained that the first court compared these gestures as those of a football ground. The Court of Criminal Appeal pointed out that these gestures were made in front of a minor child. Therefore, the Appellant should have known what he is doing.
As to the punishment, the Appellant did not appeal from the punishment, however, the Court took this into consideration. The First Court imposed a conditional discharge. The Court of Criminal Appeal held that it should not reduce the punishment.
The Court of Criminal Appeal, then moved to uphold the first ground of appeal and reject the rest. The Court also confirmed the punishment.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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