Note: The information on this page is intended mainly for the general public. The page aims at giving a general view of the diverse issues which come up for decision before the appellate courts. The full text of the judgment (normally in Maltese but occasionally in English when proceedings are conducted in the English language) is available on the Justice Services website of the Parliamentary Secretariat responsible for Justice  (see Links page under "Other Information").

Court of Criminal Appeal – The Republic v. S.W. – 4/11/2009. Whether there is a right of appeal from a court ruling during a trial by jury – Article 485 of the Criminal Code: In the course of a trial by jury the accused filed an appeal contesting a ruling by the presiding judge that a question put to a witness by his defence counsel was inadmissible. The Court of Criminal Appeal held that there is no right of appeal from a court ruling delivered during a trial by jury, that is after the jury has been impanelled. An appeal can be filed by the accused only after a sentence following a guilty verdict. A trial by jury can only be interrupted for such intervals as the Criminal Court may deem necessary for the rest of the court, the witnesses, the jurors, and the accused, or if a Saturday, Sunday or public holiday intervenes. Cross reference: The Republic v. Clarissa Cachia Court of Criminal Appeal 26/1/2001.

Court of Criminal Appeal – The Republic v. Steven John Lewis Marsden – 2/11/2009. Conspiracy – Medical and Kindred Professions Ordinance (Cap. 31): In this case the Court held inter alia: (1) Although it is recommendable that, where possible, when a person is charged with an offence in relation to ecstasy pills, a reference to the chemical composition of the pills in question be made in the bill of indictment, the fact of not doing so would not render the charge invalid or otherwise vague or such that the accused would not know with what he is being charged. (2) The essence of conspiracy is the agreement. When two or more agree to carry their criminal scheme into effect, the very plot is the criminal act itself. (3) There are no special evidential rules peculiar to conspiracy. Although proof of conspiracy was said to be generally “a matter of inference deduced from certain criminal acts of the parties accused”, there is no actual need for any such acts, and conspiracies may also be proved, iner alia, by direct testimony, secret recordings or confessions. (4) Although there was an agreement for the importation of drugs into Malta, the point in issue in the instant case was not whether there was such an agreement, including agreement on the mode of action, but whether the conspiracy was for appellant to import “illegal ecstasy tablets” or whether the conspiracy was for the importation of the tablets which he actually brought over and which, at the time, were not controlled by Chapter 31. What the prosecution had to prove beyond reasonable doubt was that the “object of the conspiracy” was an illegal drug and not just a drug. In other words, it had to prove beyond reasonable doubt that when appellant agreed with one or more persons to bring something into Malta, that something was an illegal drug, and that both he (i.e. appellant) and at least one other person (conspirator) had intended to bring to Malta an illegal drug. (5) Such evidence was lacking. Appellant’s statement to the police about the agreement to import the pills (with the generic reference to the word “ecstasy”) raised a strong suspicion that the object of the agreement was illegal drugs, and had illegal drugs actually been found or had no drugs at all been found, the jury could reasonably have come to the conclusion that the object of the conspiracy was, in fact, illegal drugs by relying on appellant’s statement. But in this case drugs were found which were, at the time, not illegal and therefore it was still incumbent upon the prosecution to prove that at least one other conspirator had illegal drugs in mind.

Court of Criminal Appeal – The Police v. Jonathan Saliba – 23/10/2009. Article 163 of the Criminal Code – Vilification of the Roman Catholic Apostolic Religion – Whether dressing up as a nun amounts to such vilification: The mere fact of dressing up as nun, even if for carnival, but without wearing any religious symbol, cannot reasonably be considered as amounting to public vilification of the Roman Catholic Religion, or of those belonging to such religion, or of its ministers, or of anything which forms the object of, or is consecrated to, or is necessarily destined for Roman Catholic worship. However, if the wearing of such a habit were accompanied with such circumstances of fact, words or gestures which objectively amount to vilification, then there would be an offence in terms of article 163. Cross reference: The Police v. Rokku Abdilla et Criminal Court 13/01/1962.

Court of Appeal – Anna Micallef pro et noe v. Allchem Limited – 18/9/2009. Employer’s responsibility for death of an employee – Duty of the employer to warn and instruct employees against dangers: The case related to a claim for damages in tort following the death of an employee at the workplace. The deceased, a de facto supervisor, mounted the arms of the fork-lifter to effect repairs to a ceiling. One of the employees started playing around with the levers of the fork-lifter, the supervisor fell off and died. The evidence showed that for a long time prior to the accident the employees who worked with the deceased would engage in similar conduct. The Court held that the company had failed to take appropriate action to prohibit this behaviour, and to provide adequate training to the employees as to the purpose of the fork-lifter and the dangers inherent in its improper use. Although the employees were warned against the improper use of the fork-lifter, they were not properly instructed as to the serious dangers if the fork-lifter was improperly used. The employer must warn the employee of the dangers and the consequences, so that the employee can appreciate the seriousness of the warning. The court confirmed that part of the judgment of the first Court which had ordered the employing company to pay one-half of the liquidated damages. 

Constitutional Court – Christopher Hall v. Director for the Department of Social Accommodation et – 18/9/2009. Requisition Order – Inadmissibility ratione temporis – Exhaustion of ordinary remedies – Article 469A(1)(a) of Chapter 12 of the Laws of Malta – Administrative acts that breach fundamental human rights: Although the specific complaint based on the lack of fair compensation was raised in the course of the proceedings and not in the original application as filed, the Court had to consider this grievance since the payment of fair compensation is an integral part of one’s proprietary rights as protected by Article 37 of the Constitution and Article 1 of Protocol 1 of the European Convention. Though the premises were requisitioned before the Convention entered into force in regard to Malta, the complaint could not be declared inadmissible ratione temporis. The requisition brought about a continuing or permanent situation with the result that each time that the rent was paid the owners could claim that they were not receiving fair compensation for the interference with their proprietary rights. In terms of Article 469A(1)(a) of the Code of Organization and Civil Procedure (Chapter 12), the First Hall of the Civil Court can declare an administrative act null if such act is in violation of the Constitution. This provision does not apply where the applicant’s complaint is that the administrative act has breached a fundamental right protected by the Constitution (Articles 33 – 45) and/or the European Convention. In such circumstances the First Hall, in its constitutional jurisdiction, and, on appeal if any, the Constitutional Court are the competent Courts to enquire as to whether the administrative act is valid or otherwise. Therefore the Court cannot reject an application for redress filed in terms of Article 46 of the Constitution or Article 4 of the European Convention Act, on the basis that the applicant failed to exhaust the “ordinary remedy” under the said Article 469A.

Court of Criminal Appeal – Police v. Andriy Petrovych Pashkov – 10/9/2009. Extradition Act (Chapter 276) – Evidence collected in the requesting country: Documents purporting to set evidence heard on oath in the requesting country are admissible as evidence in extradition proceedings, although the witnesses were not heard in the course of judicial proceedings. The Act does not require that the witnesses must have been heard by a judicial authority. Although witnesses are heard according to the applicable procedure in the requesting country, the evidence has to be confirmed on oath or by affirmation or declaration, and must be duly authenticated according to law. In this case the documents filed by the prosecution did not show or disclose that the declarations made by the various persons heard by the authorities in the requesting country had been confirmed on oath or by declaration or affirmation. The Court of Appeal held that in the absence of such oath, declaration or affirmation, the documents were not admissible as evidence for the purposes of the Extradition Act.

Court of Criminal Appeal – The Police v. Michael Saliba – 20/8/2009. Arbitrary exercise of a pretended right – Article 85 of the Criminal Code – Suspension of water and electricity service by the landlord: A landlord who suspends the water and electricity service in the rented premises, disturbs the tenant’s enjoyment of possession of the premises. He is therefore guilty of the offence of ragion fattasi (arbitrary exercise of a pretended right) contemplated in Article 85 of the Criminal Code.

Court of Appeal – Anna Maria Debarro v. Carmelo Caruana et – 10/7/2009. Actio negatoria – Proof of ownership: In the actio negatoria the plaintiff requests the court to declare that his property is not burdened by a servitude in favour of the property owned by defendant. For this action to succeed the plaintiff must prove that he owns the property which he claims not to be burdened by a servitude. In default of such proof his request will be dismissed.

Court of Criminal Appeal – The Police v. Aweys Maani Khayre – 3/7/2009. Possession of plants which naturally contain drugs scheduled under the Dangerous Drugs Ordinance and the Medical and Kindred Professions Ordinance: Appellant was found guilty by the Court of Magistrates (Malta) that he had imported, and possessed under circumstances which denoted possession not for personal use, the illegal substances cathinone and cathine contained in the khat plant. Appellant had imported khat plants to be shared with his cousins and friends during a birthday party. The Court of Appeal held that the natural presence of a drug scheduled under the Dangerous Drugs Ordinance and the Medical and Kindred Professions Ordinance in a plant not itself scheduled in these laws, does not render that plant “illegal” for purposes of possession or trafficking. The only exception to this rule would be where the intention of the offender was specifically directed to the possession or trafficking of the substance which naturally occurs in the plant. Appellant was acquitted from all charges after the court considered that in line with the social and cultural habits of his country of origin, he simply intended to provide his friends in Malta with a plant to chew and which had a stimulating effect on the user. There was no evidence which suggested that the appellant’s mind was specifically directed to the above-mentioned drugs cathinone and cathine.

Court of Appeal – Marika Spiteri v. George Cachia – 26/6/2009. Payment of compensation for the use of common property: A co-owner has no legal obligation to pay compensation for the use of common property, unless the other co-owner filed a judicial intimation requesting payment.

Constitutional Court – AB and CD v. Department for Social Welfare Standards et – 3/4/2009. Requisites for adoption by spouses  - Article 114(2) of the Civil Code – Discrimination – Article 14 of the European Convention on Human Rights: According to Article 114(2) of the Civil Code a married couple can adopt a child if they have been married for a period of not less than three (3) years and are living together. The three (3) year period is not an essential requisite for adoptive parents who cohabit outside wedlock or an applicant whose status is single. The Constitutional Court confirmed the judgment delivered by the First Hall of the Civil Court, and held that this provision of law discriminates against married couples. The discrimination is evident once it resulted that the agency providing adoption services (Agenzija Appogg) refuses to commence the processing of an application filed by spouses prior to the lapse of the above-mentioned period. The Court concluded that Article 114(2) had to be read as follows: An adoption decree may be made on the application of two spouses, who are living together, authorizing them jointly to adopt a person and may not be made on the application of one only of such spouses.

Court of Appeal – Miriam Cauchi pro et noe v. Francis Cauchi – 3/10/2008.  Personal separation – Maintenance – Custody of children – Rights of access: Strictly speaking there is no “right” of access of a parent to a child in the custody of the other parent, but a “duty” on both parents to contribute to the development of the child. Access must always be subordinate to the actual needs of the child and not the other way round. Such access must not cause upheaval in the child’s daily routine. The reciprocal duty of maintenance falls on the spouses, and not on the State, and therefore the maintenance payable by one spouse to the other should not be reduced so as to force the State to intervene to “top up” such maintenance.

Court of Appeal – Philip and Maria Seguna v. Zebbug Local Council – 3/10/2008. Pre-contractual liability – Abuse of administrative discretion – Damages: Where a public authority allows its discretion to award a contract to be influenced by the illegal acts of third parties, the case falls to be considered not in terms of the rules governing pre-contractual liability but in terms of the principles applicable to abuse of administrative discretion. The rules of tort or quasi-tort will apply and the public authority must answer for all the damages caused.

Court of Criminal Appeal – The Republic v. David sive David Norbert Schembri – 25/9/2008. Insanity as a defence to a criminal charge: Insanity in terms of Article 33(a) of the Criminal Code is not synonymous with any medical conception of mental disorder. For insanity to be pleaded successfully to a criminal charge it must be shown that at the time of the act or omission complained of the accused was suffering from a disease of the mind in consequence of which he was deprived of the capacity to understand the nature and quality of that act or omission or to understand that it was wrong, or he was deprived of the capacity to choose whether or not to do that act of commission or omission. Cross reference: The Police v. Grazio Spiteri Court of Criminal Appeal 7/7/1997 (drug dependence and irresistible external force); The Police v. Raymond Vella Court of Criminal Appeal 2/8/1999 (diminished responsibility).

Constitutional Court  - The Police v. Kevin Gatt - 15/4/2008. Breach of bail conditions - Ne bis in idem: In terms of Article 579(2) of the Criminal Code the breach of a bail condition is an offence subject to a fine (multa) or imprisonment or both, and on the prosecution's request for the revocation of bail and the re-arrest of the person concerned. If the court does not revoke bail, it is not permissible for the prosecution to institute separate proceedings in terms of Article 579(1) of the Criminal Code and request the revocation of bail and the re-arrest of the person. The court based its decision on the ne bis in idem principle as guaranteed by Article 39(9) of the Constitution and Article 4(1) of the Seventh Protocol to the European Convention on Human Rights. The determining factor in deciding whether the principle applied was not the nature or classification of the proceedings but their effect (the indefinite revocation of temporary release from custody and forfeiture of the sum stated in the bail bond).

Court of Criminal Appeal – The Republic v. Steven John Lewis Marsden – 23/1/2008. Preliminary pleas – Conspiracy to traffic in a prohibited drug: In the stage when preliminary pleas and pleas as to the admissibility of evidence are being considered, the Criminal Court (and, upon appeal, the Court of Criminal Appeal) must limit itself to examining whether the formal requirements exist or otherwise to allow those pleas, and it must not examine the evidence collected during the compilation of evidence in such a way as to usurp the functions of the jury. A person may be found guilty of conspiracy to import an illegal substance even though the stuff that he eventually brings into the Island turns out to be baking powder. It all depends on what was actually agreed upon between the conspirators and, more specifically, on the object of the conspiracy.

Court of Appeal - Philip Fenech et v. A & R Mercieca Limited - 22/5/2008. Easement created by public deed - Registration in terms of Arts. 458 & 330 of the Civil Code - Arts. 7 & 8 of the Public Registry Act: Although in the note for enrolment of the deed no reference is made to an easement created by public deed, it is still operative with respect to third parties. Article 330 of the Civil Code provides that registration has to be effected in terms of the Registry Act (Cap. 56) and Articles 7 and 8 of this law identify the contents of the note for enrolment. The easement is not one of the details. The Court concluded that it is up to the buyer to examine and verify the contents of the enrolled public deed.

Constitutional Court - David Aquilina v. The Hon Prime Minister et - 25/4/2008. Small Claims Tribunal (Cap. 380) - Impartiality - Objective impartiality: The mere fact that an adjudicator presiding in the Small Claims Tribunal can also exercise his profession as a lawyer in front of the courts and other tribunals, does not raise any doubt as to his objective impartiality. Any fear as to the adjudicator's impartiality was deemed not to be objectively justified.

Court of Appeal - Dr Joseph Zammit Tabona pro et noe et v. Prof. John J. Cremona et - 1/6/2007. Interpretation of the provisions in a will: Where the words used in a will are clear and unambiguous the court should adopt a literal interpretation. It is not easy for the judge to try and determine what the testator's intention was at the time of the drawing up of the will, and local judgments have applied the rule that when the words are clear "la disposizione deve restare quella che le parole del testamento importino."​