The defence of impossibility in criminal proceedings does not eliminate criminal responsibility. This was held in a Court of Criminal Appeal judgement presided by Mr Justice Giovanni Grixti in Il-Pulizija –v- Donald Gilford. This judgement was delivered on 26 July 2021.
Gilford was accused of not paying maintenance to his children in June 2017. The Magistrates Court condemned the Appellant, Gilford, two weeks detention. Gilford appeals the judgement and asked the Court of Criminal Appeal to overturn the judgement. The Appellant argued that the action was timed barred by 6 months, since he was not notified according to law. Before entering into this issue, the Court of Criminal Appeal took exception to how the minutes of the case was taken. All the minutes mentioned is that the prosecution was led by a police inspector and that the court found the Appellant guilty.
The Court of Criminal Appeal disapproved of the contents of the minutes of the case, which did not indicate what actually took place in the sitting. The minutes do not mention that the Appellant raised the plea of prescription.
As to the plea of prescription, the Appellant is claiming that six months passed from when he was presented before the court and that in fact he was not notified.
The Court of Criminal Appeal disagreed, in that he was notified in accordance to Regulation 8 of Legal Notice 335 of 2015, which allowed that the charges to be fixed on the door of the residence of the accused after two attempts for the police to hand the charges to him. Furthermore, the charges are published on a daily newspaper.
On 24 and 25 July 2017, the police tried to serve the Appellant. The charge was published on 11 October 2017.
The report was filed at the police on 21 June 2017 and the publication was done in 11 October 2017. Therefore, this was done within the six months’ period.
The Appellant argued that it was impossible for him to pay maintenance, since he was unemployed. There were attempts for the outstanding debt to be paid, however, no information was given to the court that was paid.
Before the case in the Court of Criminal Appeal, the Appellant had found work, but the debt was still not paid. All he explained to the Court was that at the time when the maintenance was due he was unemployed and now found a job.
The Court quoted from a judgement Il-Pulizija -v- Karl Bonello decided on 21 November 2005, which held that the defence of impossibility cannot be held a general defence which would eliminate criminal responsibility.
The two ground of appeal were turned down and therefore, rejected the appeal.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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