The Court of Magistrates (Malta) as a Court of Criminal Judicature in a judgement delivered by Magistrate Dr. Joseph Mifsud on the 1st February 2017 in the names Pulizija v. Giovanni Francesco Selvaggi analysed the elements which need to subsist in order for a person to be found guilty of the offence of judicial perjury. This offence is dealt with in Article 106 of the Criminal Code (Chapter 9 of the Laws of Malta) which states that “Whosoever shall give false evidence in civil matters, shall, on conviction, be liable to imprisonment for a term from seven months to two years”. Moreover this article also states that “Whosoever shall make a false affidavit, whether in Malta or outside Malta, knowing that such affidavit is required or intended for any civil proceedings in Malta, shall, on conviction, be liable to the punishment mentioned in subarticle (1).”
In this case the accused was charged of having given false testimony during the proceedings pending before the Small Claims Tribunal in the names AM Holdings Limited v. Gianfranco Selvaggi decided on the 11th October 2013 and for having made this false testimony by means of an affidavit sworn under oath before Notary Dr. Margaret Heywood when he was aware that that affidavit was required or intended for any civil proceedings in Malta.
The facts of the case revolved around the fact that in his affidavit presented during the civil proceedings before the Small Claims Tribunal, the accused who at the time was the CEO of the Transport Authority, had stated that Claude Calleja had approached him and told him to let his son pass his driving licence test since he had failed this test for four times and the accused had informed the Deputy Chairman of Authority at the time of what had happened. Calleja had denied that he had ever made such a statement to the accused. The prosecution insisted that this statement in the affidavit amounted to false testimony and it made intentionally by the accused for his personal gain.
In his judgement, Magistrate Dr. Joseph Mifsud referred to Giuseppe Falzon’s notes ‘Annotazioni alle Leggi Criminali per l’Isola di Malta e sue Dipendenze’ (1872) where it is explained that the object of this offence is the balance between “the truth in as far as the witness knows it and the right that justice has to get to know it from him. The criminal intent exists when the accused knowingly contravenes against his obligation to say the truth.”
This offence is contained under Title III of the Criminal Code dealing with Crimes against the Administration of Justice and Other Public Administration since judicial perjury may solely lead to a miscarriage of justice since the adjudicator would deliver a judgement based on false and untruthful facts.
Magistrate Dr. Joseph Mifsud considered the four elements constituting judicial perjury which were listed by Professor Mam
i) The testimony given in a cause;
ii) On oath lawfully administered by the competent authority;
iii) Falsity of such testimony in a material particular;
iv) Wilfulness of such falsity or criminal intent.
The first element is clear in the law since it is required that evidence is given during a judicial proceeding before a Court of Justice made according to law which includes any type of statement which has evidential value regarding the facts of the case. The second element relates to the objective element of the offence that is it must relate to false evidence given under oath which has been administered according to law by a competent authority. As held by various legal jurists including Manzini, this evidence must relate to the affirmation of the false, the negation of the truth or reticence.
The last two elements are the most important in order to lead to a conviction since they deal with nature of the testimony and the intention of the witness. Therefore relating to the third element the falsity needs to refer to the fact which is material to the outcome of the proceedings. Quoting Professor Mamo the Magistrate held that “ In all cases in order that the crime of false testimony may subsist, it is necessary that the falsity be material to the cause…the law aims at ensuring the integrity of judicial trials and it is in violation of such integrity that the injury caused by the crime subsists. If therefore, the falsity falls upon circumstances which are entirely irrelevant to the cause and which, whether true or false, could in no way influence the result, the crime could not arise because no possibility of injury which alone justifies the punishment would exist.” Therefore any testimony made which does not have any relevant to the outcome of the case, although it may be false, it may never result in the crime of perjury. Professor Mamo holds that “all the authorities are unanimous that a crime of false testimony is complete as soon as a false deposition is made which is calculated to mislead the Court”.
Finally there must be the criminal intent or the so-called mens rea of the witness to lie under oath. The Court once again quoted Professor Mamo who states that “The falsity must be deliberate and intentional, for if incurred into from inadvertence or mistake it cannot constitute this crime…Consequently in order that the crime in question may subsist it is necessary to prove in addition to the actual falsity and the possible injury to the due administration of justice, the criminal intent, a strong presumption of which arises when some advantage accrues to the deponent from his false deposition or if he was corrupted”. In this respect Mamo holds that the intentional element of the crime of false testimony is the conscience of lying or of hiding the truth. Any error or forgetfulness excludes this crime and the appreciation of modest intent depends on the circumstances.
In light of the facts of this case, in delivering his judgement, Magistrate Dr Joseph Mifsud held that in this case the accused never intended to obscure the truth or hide that which he was testifying about. Therefore since the elements required by law in order for the accused to be found guilty of such an offence did not subsist, the accused was acquitted of all charges brought against him.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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