8 - Consuelo Scerri Herrera

Consuelo Scerri Herrera Confessions in a Court of Law

Madame Justice Consuelo Scerri Herrera obtained her Diploma of Notary Public from the University of Malta in 1988 and her Doctorate of Laws from the University of Malta after presenting her thesis entitled ‘A Historical Development of Constitutional Law in Malta 1921-1988’. She obtained her Diploma in Canonical Marriage Cases and Jurisprudence and Procedure from the Ecclesiastical Tribunals of Malta in 1999. She was called to the bench in 1997 as a Magistrate and presided over civil and criminal cases which fell within the competence of the Magistrates Courts. She was promoted to Judge in June 2018 and now presides over the Criminal Court of Appeal.

She has written many articles in various law journals on the subjects of Criminal Law and Constitutional Law. She has delivered many lectures on various topics of Criminal Law and was asked to be an examiner in a number of theses presented for the attainment of the Doctorate of Laws. She has also been asked to delivery lectures to law students at the University of Malta and has taught in the Police Academy in the courses which the Police Force organises for the new Inspectors of Police.

She has also attended a number of seminars and courses overseas to enhance her professional training. Currently, she is reading for a Ph.D at the University of Malta, on the subject of rights pertaining to a subject prior to interrogation.

id-dritt

1. Introduction

T

he law in Malta does not provide a definition for the term ‘confession’, but it is understood to be not just a mere statement of the accused, but a statement by which the accused admits to his guilt. The confession of an accused is only applicable to that particular accused, and not to a coaccused or third party. To this end, the law states that ‘a confession shall not be evidence except against the person making the same, and shall not operate to the prejudice of any other person’.1 ‘A suspect in which he or she voluntarily, knowingly and intelligently acknowledges that he or she committed or participated in the commission of a crime and which makes it clear that there is no defence in law that would make his or her conduct lawful, may define a confession as an out-of-court statement’.2 This is what the Court of Appeal meant in the Becker case3, when it held that a confession must be defined as ‘an unequivocal admission of guilt by an accused person’.

An accused may release two types of statements: (i) a confession; and (ii) an exculpatory statement where he disproves the confession. It was argued whether such a statement would also benefit a co-accused. Arguably, in Malta this would, since the law4 expressly employs the word ‘confession’, and it would therefore follow that an exculpatory statement, which refers to another person, would be admissible. In a criminal trial, ‘exculpatory evidence’ is evidence that indicates the defendant did not commit the crime he has been accused of.

2. Examining Exculpatory Statements Exculpatory evidence takes on several different channels. It may be an attestation from a witness who states that she saw somebody other than the 1 Criminal Code (Chapter 9 of the Laws of Malta), Section 661 2 Reuben Johnson ‘Admissibility of confessions in criminal trials Mbuli’ (Doctor Legum, University of Zululand 1993) 3 Judgment of the Court of Justice delivered on the 19th January 1982 (1) Ursula Becker vs. Finanzamt Münster-Innenstadt (reference for a preliminary ruling from the Finanzgericht Münster).

4 Criminal Code (Chapter 9 of the Laws of Malta), Section 661

156

Criminal Law

accused commit the crime or that the accused was with the witness when the crime occurred. It may be actual evidence or an object taken from the crime scene, such as fingerprints lifted from a weapon that do not match the fingerprints of the accused. It may be video footage taken from a nearby camera that shows that the person who committed the crime has a different description to that of the accused. Exculpatory evidence may be real or documentary, direct evidence or circumstantial evidence, testimony or a physical exhibit presented in court. If it tends to show the defendant might not be guilty of the crime, it is ‘exculpatory’.

In the well-known American case Brady vs. Maryland, the U.S. Supreme Court held that if a prosecutor was in possession of exculpatory evidence, he is duty bound to share that evidence with the defense. Failing to provide such information to the defense may give rise to the case being thrown out in a motion to dismiss, as a mistrial, or being overturned on appeal. The Supreme Court based its ruling on the reasoning that it is also the responsibility of the prosecutor to seek justice and thus to make sure that all evidence, not just evidence that supports the prosecutor’s case, is available at trial.

In the United Kingdom, in the case Sat-Bhambra5, the Court of Appeal confirmed that exculpatory statements are not within the meaning of section 82 of the PACE Act 1984. The question that arose in this case is whether a statement that became damaging at the trial could be described as wholly or partly adverse to its author. Lord Lane said in no uncertain manner that section 76 could hardly be directed at statements, which contained nothing adverse to the author’s interest. It would mean that the statement ‘I had nothing to do with it’ might in due course become a confession, which would be surpassing with or without section 82. The author agrees with this reasoning, because otherwise we would be describing an exculpatory statement as being a confession which, in reality, is not.

In Malta, we find a similar provision relating to exculpatory statements in the Criminal Code ‘in that the deposition of witnesses, whether against or in favour of the person charged or accused, if taken on oath in the course of the inquiry according to law, shall be admissible as evidence’.6 Although this is not known as an exculpatory statement in reality, it has the same significance.

In short, exculpatory evidence tends to show a defendant is not guilty.

5 6

1989 Cr App R 61.

Criminal Code (Chapter 9 of the Laws of Malta), Section 646(2)

157

id-dritt

On the other hand, the confessional statement of an accused is regulated

by Article 658 of the Criminal Code which, prior to Act LI of 2016 being enacted, provided the following: ‘Any confession made by the person charged or accused, whether in writing or orally, may be received in evidence against the person who made it, provided it appears that such confession was made voluntarily, and not extorted or obtained by means of threats or intimidation, or of any promise or suggestion of favour’.

Through Act LI of 2016, the wording in this same section is slightly different in that it now includes also confessions made by ‘audio-visual means or other means’. It now reads the following: ‘Any confession made by the person charged or accused, whether in writing, orally, by audio-visual means or by other means, may be received in evidence against or in favour of the person, as the case may be, who made it, provided it appears that such confession was made voluntarily, and not extorted or obtained by means of threats or intimidation, or of any promise or suggestion of favour’.7 In the United Kingdom, the PACE Act8 adopts an inclusive definition to the term ‘confession’, as was recommended by the Criminal Law Revision Committee.9 It stipulates that in this Act: ‘Confessions includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise’.

Thus, this implies that there is no difference between a statement wholly or partly oppugning to the accused and as confirmed in the judgment in the names Customs and excise Comrs vs. Harz and Power.10 Lord Reid confirmed that there is no difference in relation to admissibility between a confession and an admission falling short of a full admission.11 No doubt that should 7 2016.

8 9 10 11

Criminal Code (Chapter 9 of the Laws of Malta), Section 658 as amended by Act LI of Section 82(1) of the PACE Act of 1984.

11th Report (Cmnd 4991) paras 58 and 66.

(1967) 1 AC 760 at 817-818.

Per Lord Havers in R vs. Sharp (1988) 1 ALL ER 65 HL at 68.

158

Criminal Law

an accused person plead guilty and then wish to change his plea, his first statement would be entertained as a confessional statement. However, even here if it results that the accused who pleaded guilty was not aware of what he was being charged and therefore did not understand the consequences of his guilty plea, the Judge can still exclude the evidence in the exercise of his discretion.12 Interesting to note, however, that Section 82 of the PACE Act is not directed to exculpating statements, which can later result in being incorrect, or cooked up when compared to the evidence by the accused on oath.13 An informal confession is an out-of-court statement made by an accused or suspect person generally against his own interest and generally, this is admissible evidence as an exception to the hearsay rule. This is however admissible as evidence of the veracity of its contents, on the premise that what a person says against himself is likely to be true. An informal statement is usually released to a person in authority such as the investigating police officer or the inquiring Magistrate at interrogation stage. This many a time will contain a full admission of guilt or incriminating statements.14 A confession could not be given as evidence by the prosecution unless shown by them to be a voluntary statement in the sense that it was not obtained from the accused or suspect by any prejudice, fear or hope of an advantage in return exercised by such person in authority.15 If the admissibility of this statement is in issue, then such a matter would be decided upon by the trial judge.

It is of vital importance, however, that the confession must be made voluntarily in order for it to be admissible, and therefore it must be made out of the unconditioned free will of the accused and not because he is forced to do in any way. Notwithstanding this, it is important to pinpoint that in Malta, the law employs the word ‘voluntarily’ and not ‘spontaneously’ and thus, any confession elicited by police or any person in authority is just the same receivable in evidence. However, any kinds of threats, intimidation or promises of favour would completely negate such voluntariness. This is also the position in the United Kingdom. The reasoning for this rule is that possibly, an involuntary confession would not be reliable. For example,: a 12 R vs. Rimmer (1972) 1 WLR 268 and also R vs. Hethergton (1972) Crim LR 703 CA. 13 R vs. Park (1993) 99 Cr App R 270 CA. 14 See per Lord Reid in Customs and Excise Comrs vs. Harz and Power (1967) 1 AC 760 at 817 – 818.

15 Per Viscount Dilhorne in Deokinaman vs. R (1969) 1 AC 20 PC at 33.

159

id-dritt

police officer would tell a suspect that unless he confesses he will not be granted bail, and thus the suspect would make untrue confessions with the aim of shortening his detention. This situation then led to the rule that confessions are excluded if made as a result to an inducement, as will be explained later in this same chapter.

In the United Kingdom, the Criminal Law Revision Committee took the view that the law on this matter was very strict and should be moderated.

It in fact suggested that a confession should be excluded if obtained by oppression or made as a result to a threat or inducement likely to produce an unreliable confession. It also considered replacing the test of voluntariness and recommended that a confession should only be dismissed if it is proved that such confession was made as a result of violence, threats of violence, torture or inhuman degrading treatment.16 However, the situation today is regulated by the provisions of Section 76 of the same PACE Act 1984, in that it is inadmissible if made as a result of oppression or in pursuance of something said or done likely to make the confession unreliable.

3. Difference between a confession and an admission Admission and confession are two very important concepts used in the law of evidence by lawyers, to strengthen their cases before a court of law.

Both admissions and confessions are used as sources of evidence. Most of us are familiar with the concept of confession as we accept and talk about our wrongdoing and describe what has been done. Admission, on the other hand, refers to a statement accepted by a person. The acknowledgement of a fact is akin to admitting it. There are many similarities in the two concepts, but there are also subtle differences that will be highlighted in due course.

For example, if during interrogation a suspect or accused person nods to a fact or statement, then he is admitting or acknowledging that fact which is being discussed. Admission by a person can be taken in a court of law as a statement that proves guilt or a crime. Accused persons make admissions in their confessions many a times, about their participation in the events being imputed to them. Confession, on the other hand, is the act of acknowledging one’s involvement in an act of crime or wrongdoing, however; a confession does not necessarily amount to an admission.

16

Cmnd 8092 para 4 – 12.

160

Criminal Law

Whereas a confession is an acceptance of guilt in a crime or wrongdoing, an admission is the acknowledgment of a statement or a fact. An accused person can retract from a confession made earlier during the interrogation, but retraction from admission is very hard to call back unless it is proved that such admission was obtained illegally. Also, a confession can only be made by the accused; an admission can be made by others too.

Section 82 of the PACE Act 1984 defines the term confession which includes an informal admission made out of court. No distinction is to be made between a full confession and admissions that fall short of a null confession. It is insignificant to whom the confession was given. Therefore, what a person says to another person, even if not in authority, is tantamount to a confession. It includes any statement whether made in writing or otherwise, for example, a suspect releases a written statement to the police.

Alternatively, admissions can be made in other forms of documents. For example, an accused person makes an admission to a crime in writing to a friend, which letter is later intercepted by a third party, or that letter is handed over for further investigation by the same friend. Such admissions would also be admissible at common law in the United Kingdom. In Malta, on the other hand, the Courts would be very weary of such evidence and would have to be convinced of its source and purpose.

A question may arise as to whether an admission by conduct is admissible.

For example, if a police officer asks a suspect if he has committed a particular offence and the suspect simply nods as a reply, can we take this as a fullblown admission upon which to base a verdict of guilt? It appears that this conduct would fall in the definition of an admission. However, admissions by conduct are only admitted in exceptional cases. In Preece vs. Parry17 the Divisional Court held that the behaviour of the suspects when arrested was abusive and violent and thus, this same behaviour could amount to an admission.

This situation of admissions by conduct are hard to come by, especially in the Maltese system where the far majority of interrogations take place without video camera recording. If the interrogation were to be recorded on camera, the behaviour and mannerisms of the suspect could be recorded, and thus interpreted by the person who has to judge upon the facts.

Unlike confessions, admissions which are not based on personal 17

(1983) Crim L.R 170.

161

id-dritt

knowledge are not admissible to prove facts. In the case of Sturujpaul vs.

R,18 the Privy Council held that a suspect can confess as to his own acts, knowledge or intentions, but he cannot ‘confess’ as to the acts of other persons which he has not seen, and of which he can only have knowledge by hearsay. By example, a reference can be made to the handling of goods, which it is sought by admission that the goods were in fact stolen. Now, if the accused admitted that he bought the goods in question very cheaply at night in a remote place, he would be admitting to a fact within his own personal knowledge and it may lead the Jury to infer that from the circumstance of the acquisition of the goods the goods were actually stolen. However, if on the other hand the accused simply says that he believed the goods to be stolen or that he was told that they were stolen, he would not be speaking from his personal knowledge. Such evidence is not tantamount to an admission that the goods were in fact stolen. This reasoning is based on the proposition that ‘if a man admits something of which he knows nothing, it is on no real evidential value’ as was held in the case Comptroller of Customs vs. Western Lectic Co Ltd per Lord Hodson.

This leads us to another question as to whether admissions made by the agent of the accused, for example his lawyer, are admissible. The trend is to consider them admissible if such admissions were made with the authority of the same accused. In the British case of Evans19, the Court of Appeal held that the conversation between a clerk of the accused’s lawyer and a potential witness was considered as inadmissible, since it was not proven that the clerk was in fact acting with the accused’s consent. Likewise, in the case of Hutchinson20, a letter written by the lawyer of a suspect to the Department of Public Prosecution contradicting statements in an alibi notice was held to be admissible, since it was similar to a previous statement made by the same accused upon interrogation.

4. When is a confession admissible?

The general rule is that a confession by an accused person may be given in evidence, if it is relevant to any matter in the trial and has not been excluded by the court for some particular reason. This is the same position in 18 19 20

1958 1 W.R.L 1050 1056.

1981 Crim L.R 699.

1985 82 Cr App R 51.

162

Criminal Law

the United Kingdom where the court can exclude a confession on the basis of Section 76(2)21 and Section 7822 of the PACE Act. Therefore, when considering the admissibility of a confession, the court must have in mind that the confession was given in a regular fashion, and that it would not have an unfair effect on the fairness of the proceedings.

It is of paramount importance that a confession is taken in terms of the law, since otherwise such a statement could be withdrawn from the proceedings.

In fact, there are a number of cases here in Malta whereby the statement was considered to be not in line with the disposition of the law (in particular, Section 658 of the Criminal Code) and thus, the Court ordered that it should not be taken into account as admissible since allowing such evidence would undoubtedly cause prejudice to the accused. This could have serious results because if withdrawn from the case the prosecution could be left without any evidence and this could also in extreme cases lead to the acquittal of the accused. As a matter of fact, this has happened on many occasions in recent times, when the prosecution exhibited statements taken of the accused and even though they thought that they had ‘la regina della prova’ and therefore stopped short of producing any further evidence, the Court upheld the request of the defence to have them withdrawn from the proceedings and the accused ended up acquitted.23 There are also a number of European Court judgments, which upheld the same line of reasoning on the matter.24 21 ‘If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained— (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid’.

22 ‘In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’.

23 Il-Pulizija vs. Alvin Privitera decided by the Courts of Magistrates as a court of criminal judicature on the 11th April 2011. Likewise ir-Repubblika ta’ Malta vs. Martin Dimech decided by the First Hall civil court in its Constitutional jurisdiction on the 10th January 2012.

24 Imbrioscia vs. Switzerland decided by the Grand Chamber on the 24th November 1993 and Taxquet vs. Belgium also decided by the same Chamber on the 8th May 2013.

163

id-dritt

Prior to the judgment, delivered in Malta in the names Pulizija vs. Carmel Camilleri and Therese sive Tessie Agius,25 the question as to what constitutes a valid statement was never really discussed in case law. The court always took the stand that what constitutes a valid statement relies solely on its discretion or in the discretion left to the jurors who have to decide on similar matters before a Criminal court. No statutory guidelines were ever released in Malta. The Court made reference to the UK Judges Rules which although are not hard, binding and steadfast rules, certainly helped and provided markers on what really constitutes an admissible statement. Although these Judges rules do not even have the force of law, they are still seen by the Judiciary as protocols on which to move forward.

It must be pinpointed that a statement can be made in writing or orally, until the amendment of Act LI of 2016 (when the terms by audio-visual means or other means was introduced) and this fact was emphasised in the judgment in the names il-Pulizija vs. Aaron Axisa26 wherein the Court held: ‘Mix-xhieda tal-Ispettur Daniel Zammit jirriżulta li l-appellant kien ammetta miegħu u ma’ membri oħra tal-Korp tal-Pulizija li l-appellant kien daħal fil-Knisja u wettaq is-serqa. Fl-istqarrijiet li għamel l-appellant din l-ammissjoni ma tidhirx. ...Iżda legalment ma torbotx biss l-istqarrija bil-miktub.

L-artikolu 658 tal-Kap 9 għandu l-kelmiet ‘kemm ukoll bil-fomm’.

Dan huwa x’qal direttament l-appellant lill-Ispettur u mhux x’qal ħaddieħor lill-Ispettur li kien qal l-appellant. Permezz ta’ dan l-artikolu tal-Kap 9 tali xhieda hija ammissibbli u mhijiex hearsay evidence...’.

In this latter case, the issue of the ‘caution’ (which will be discussed later on in this same chapter) was not brought to the floor. The issue was whether what a suspect says to the investigating police ‘orally’ still amounts to a confession once made voluntarily. The Court rightly held that it would still amount to a confession despite not being written down in a statement.

As explained earlier, Maltese law is rather absent and creates confusion on this subject, since it provides no strictu juris guidelines and leaves the matter to be assessed in the light of Section 658 of the Criminal Code as 25 26

Decided by the Criminal Court of Appeal on the 9th October 1998.

Delivered by the Criminal Court of Appeal on the 20th September 2013.

164

Criminal Law

stipulated above.

In the judgment delivered in the names il-Pulizija vs. Joseph Fenech,27 the appellant asked for the judgement of the first court to be revoked because he claimed that his statement was obtained by fraud. The Court made reference to Article 658 of the criminal code, which stated that a statement will be declared inadmissible if it is proven that it was not made voluntarily, and obtained by means of threats, promises or fear. It argued that fraud per se is not one of these elements, and from the evidence gathered there was no proof of threats or fear and thus rejected his appeal.28 In the British system, this subject of confessional statements is regulated by a Code of Practice, which was brought to the fore after the enactment of the Criminal Evidence Act 1984, which Act came into force on the 1st January 1986.

Thus, today in Britain, the topic of confessional statements is regulated by law, specifically by Part VIII of the said Act of 1984 in Article 76 entitled ‘confessions’, in the part named Evidence in Criminal Proceedings in General.

It appears that in Malta we have followed the British system, as drawn out in these Judges Rules of 1964, though purely by custom.

Cross and Wilkins, in their book An Outline on the Law of Evidence29 state the following: ‘A confession of guilt in a criminal case is only admissible if it was not made in consequence of a threat or inducement of a temporal nature relating to the prosecution, made or held out by a person in authority over the prosecution. This is often summoned up by saying that a confession must be voluntary, if it is not voluntary within the above definition, then it is altogether inadmissible’.

This means that for a statement to be considered as made voluntarily, it is necessary that such statement was not obtained on the premise that the accused person was going to suffer some prejudice, or with the premise that he was going to be given some form of advantage, or due to some 27 Decided by the Court of Criminal Appeal on the 25th June 1999.

28 Vide also Il-Pulizija vs. Richard Caruana decided by the Superior Court of Appeal on the 20th May 2013.

29 ‘An Outline of the Law of Evidence’ (1964) 23 The Cambridge Law Journal 141

165

id-dritt

oppression as a result of what was said by some figure of authority.

In a like manner, Judge Sacks in the prominent British case R. vs. Priestly30 held that: ‘Whether or not there is oppression in an individual case depends upon many elements. I am not going into all of them.

They include such things as the length of time of any individual period of questioning, the length of time of intervening between periods of questioning, whether the accused person had been given proper refreshment or not, and the characteristic of the person who makes the statement’.

On this same subject, Archbold, in his book entitled Criminal Pleading, Evidence and Practice31 provides that: ‘In order to be admissible a confession must be free and voluntary and unless it be shown affirmatively on the part of the prosecution that it was made without the prisoner being induced to make it by promise of favour or by menaces or undue terror, it shall not be received in evidence against him’.

G.D. Nokes, in his book named An Introduction to Evidence32 accommodates the following: ‘Few subjects in the law of evidence presents more perplexing inconsistencies than the emergence of the rule against forced confessions’.

The subject of inadmissibility of statements as valid evidence against the person releasing them has been discussed in detail many a time, and more so with the hope of controlling and reducing abusive methods used by the police, rather than from the point of view of assessing whether what the accused is alleging is true. This in consonance with what is provided in the book Criminal Evidence by Cross and Williams that ‘certain standards of the police practices have to be observed and confessions obtained in violation of such standards are to be rejected’.

30 (1967) 51 Cr. App. R 1.

31 Butler - Edited by T.R. Fitzwalter Butler, Marston Garsia -36th edition 32 Sweet & Maxwell, London -3rd edition

166

Criminal Law

Archbold, in his book Criminal Pleading, Evidence and Practice,33 states that ‘in order to be admissible a confession must be free and voluntary and unless it be shown affirmatively on the part of the prosecution that it was made without the prisoner being induced to make it by promise of favour or by menaces or undue terror, it shall not be received in evidence against him’.

On this point at issue, the author feels that she should make reference to what was said by the Supreme Court of the United States in its well-studied judgment in the names Miranda vs State of Arizona34 which, in her opinion, is very relevant to the current situation in that: ‘It is obvious that an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of in communicado interrogation is at odds with one of our Nation’s most cherished principles – that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice’.

This matter was dealt with in the European Court judgment in the names Ismail Abdurahman against the United Kingdom35. The facts of this case are the following. In the 21 July attacks, bombs were detonated on the London public transport system but failed to explode. The wrong doers made their escape but were later arrested. Following the arrest of the first three applicants – Mr Ibrahim, Mr Mohammed and Mr Omar – they were temporarily refused legal assistance in police ‘safety interviews’. Under the British Terrorism Act 2000, such interviews can take place in the absence of a solicitor and before the detainee has had the opportunity to seek legal advice. During these interviews, the applicants denied any involvement in or knowledge of the events of the 21st of July. At trial, they acknowledged their involvement in the events, but claimed that the bombs had been a hoax and were never 33 Butler - Edited by: T.R. Fitzwalter Butler, Marston Garsia -’36th edition 34 Decided by the Supreme Court of Arizona on the 13th of June, 1966 - 384 U.S. 436 (1966) 35 Decided by the European Court of Human Rights on the 13th September 2016.

Application no. 40351/09

167

id-dritt

intended to explode. The statements made at their safety interviews were admitted at trial. They were convicted in July 2007 of conspiracy to murder and sentenced to a minimum term of 40 years’ imprisonment. The Court of Appeal subsequently refused leave to appeal against their conviction.

Mr Abdurahman, the fourth applicant, was not suspected of having discharged a bomb and was initially interviewed by the police as a witness.

He started to incriminate himself by explaining his encounter with one of the suspected bombers shortly after the attacks and the assistance he provided to that suspect. The police did not, at that stage, arrest him, caution him and advise him of his right to silence and to legal assistance. Instead, they continued to question him as a witness and took a written statement from him. He was subsequently arrested and offered legal advice. In his ensuing interviews, he consistently referred to his written statement. This statement was admitted as evidence at his trial. He was convicted in February 2008 of assisting one of the bombers and of failing to disclose information about the bombings. He was sentenced to ten years’ imprisonment. His appeal against his conviction was dismissed in November 2008 and his sentence reduced to eight years’ imprisonment on account of the early assistance that he had given to the police.

Although the law is silent with regards to the validity of inadmissible evidence, reference can be made to case law on the subject, which provides in no uncertain terms that such evidence would have to be discarded.

5. Voluntariness of a confession It is of paramount importance that a confession is made voluntarily since this is required in the law itself when it states that a confession is admissible ‘provided it appears that such confession was made voluntarily’.36 An essential element that is needed to establish whether a statement is given voluntarily or not is that of ‘inducement’. The traditional reason why a statement that is obtained as a result of this inducement is inadmissible, is because it can safely be said that such a statement would rarely contain any truth in it. Despite what was stated earlier on, there can still be control on the methods used by the executive police in obtaining such statements. One would naturally ask what an incumbent is. This is the cardinal point why the accused has 36

Criminal Code (Chapter 9 of the Laws of Malta), Section 658

168

Criminal Law

in fact released his statement. For example, when a police officer promises forgiveness and then obtains a statement of guilt from such person, such behaviour being tantamount to ‘inducement’ renders such said statement inadmissible. It is important that words of encouragement, suggestion or of offering are communicated to the person under interrogation and not to a third party, in order to render such statement inadmissible. This inducement generally consists in a promise to be given an advantage once the person under interrogation confesses. or in a threat or fear of a disadvantage should the person under interrogation not confess.

Whereas in Malta, it is the court or the jurors as the case may be who have to decide on such matters solely upon their discretion with no statutory direction at all, in the UK the court is faced with written instructions as laid in the PACE Act. In Malta, the deciding judge has to decide as to whether the words used or the behavioural patterns of the investigating police officers were such as to have caused such ‘inducement’ to make such a statement inadmissible. Thus, it appears in my assessment that the deciding Judge or Magistrate or Jurors have to take into account certain additional factors in order for them to be in a position if there was any inducement or not. For example, the character of the person interrogating, behavioural patterns in getting across during the interrogation, tone of voice and other similar circumstances which could lead the court to conclude whether there was any ‘inducement’ or not.

Thus, in such a context the new amendment, which provides for audiovisual recordings of a confession can be very helpful. The person who has to decide on the admissibility or otherwise of such a confession could be helped if faced with an alleged fact of abuse committed by the person in authority, for example, high pitched voice or a forceful leading voice since the person who has to decide would be in a position to hear for himself the intonation of the interview which led to the confession. In Malta, the police are not very well equipped with video voice recording and in fact, there is only one machine held at the General Head Quarters and this is used only in connection with high profile sensitive cases. In fact, it was used when the police were investigating and interrogating the ex Chief Justice Dr Noel Arrigo in connection with a crime of bribery, as well as in murder cases. This machine provides three copies at the same time of such a confession. Once the confession is finished, the police hand a copy of such confession to the suspect, keep a copy of such confession for themselves and subsequently 169

id-dritt

present the third copy in court together with a written copy of the audio recording to form part of the evidence of the prosecution. This system certainly reduces the possibility of abuse being carried out by the person in authority and leads to a lesser number of allegations of abuse being carried out by such persons in authority.

This method of interrogation, however, can cause further problems with regards to the payment of such a service since the law does not provide who is responsible for the production of the type written copy of the audio recording and it is only recently that this issue arose in court as to who is responsible for such a document. The court was unwilling to nominate a person to make the transcript of an audio recording whereas the prosecution was contending that it did not have the resources to provide for such a transcript. Under the Maltese system, where the system that is adopted in Court is acquisitorial it is the duty of the prosecution to prove its case beyond reasonable doubt and thus it rests on the prosecution to bring forward its evidence since the accused could stay silent and defend himself simply and solely on the evidence brought forward by the prosecution. The deciding Magistrate then went on to nominate a person to make such a transcript at the expense of the government which expense will be borne by the accused should he be found guilty of the offence he was charged with and this in terms with the law.37 As to what amounts to ‘inducement’ Archbold surmised the following: ‘Inducement must refer to a ‘temporal benefit’.38 Where an inducement merely amounts to a moral admonition and does not refer to a materialistic advantage or of a civil nature the confession is admissible. Words like ‘be certain to be honest’ and ‘don’t cause more prejudice to yourself by persisting with your lies, say the honest truth’ will be treated as innocuous and do not render a confession inadmissible. Thus, words in the sense that it would be better to say the truth because the police already know everything amount to moral incitement from which the accused will not be procuring any physical or temporal advantage as is acquired with the words ‘tell me where the stolen things are I’ll be more favourable in your regard as a consequence’. Words explained in the latter example indicate an advantage that the accused person may receive in consequence of an admission and thus, vitiate such a confession. Once a confession is considered to be vitiated, then the deciding judge would not take cognisance of it and discard it with 37 38

Ibid, Section 533(1) Emphasised by the author

170

Criminal Law

the consequential possibility that whole trial could be disturbed especially if the prosecution did not proceed with further evidence, but relied solely on the admission of an accused person as stated in his statement. This could have a cascading effect and bring the trial to cinders as has in fact happened in the trial of Alvin Privitera.

In the latter case in the name Il Pulizija vs Alvin Privitera39 during the sitting of the 22nd June 2011, the parties to the case dictated a verbal in the sense that ‘l-istqarrija tal-imputat hija l-unika prova kontra tiegħu f’dawn ilproċeduri’.40 The deciding Magistrate stated that the statement was not taken according to law in that the right to a fair trial of the accused had been infringed and thus, decided to do away with such a statement, disregard it in total, and acquitted the accused. It concluded by saying that ‘għal raġunijiet mogħtija iktar ‘il fuq, din l-istqarrija ma jista’ jkollha l-ebda influwenza diretta jew indiretta fuq l-esitu ta’ dawn il-proċeduri kriminali għaliex ttieħdet bi ksur tad-dritt ta’ smigħ xieraq tal-imputat u għalhekk qed tiġi skartata minn din ilQorti’.41 However, in another landmark case held in Malta in the names Il Pulizija vs Jason Cortis,42 the Court took on a different view. In this case, the defence lawyer had likewise asked the Court to discard the statement given by the accused appellant since it was made in the absence of the accused being given the right to be assisted by a lawyer. The Court made reference to a number of other cases already decided on the same subject.43 39 Decided by the Courts of Magistrates as a Court of Criminal Judicature on the 7th July 2011 40 The statement to f the accused was the only piece of evidence of the prosecution.

41 Vide also Il-Pulizija vs Mark Lombardi decided by the Courts of Magistrates of Criminal Judicature on the 9th October, 2009 and Il-Pulizija vs Esron Pullicino decided by the Courts of Magistrates of Criminal Judicature on the 24th February, 2010 which two judgments were also confirmed on appeal.

42 Decided by the Criminal Court of Appeal on the 6th October 2016 Application Number 2224.14.

43 Il-Pulizija vs Alvin Privitera decided by the Constitutional Court on the 11th April, 2002.

Il-Pulizija vs Mark Lombardi decided by the Constitutional Court on the 12th April, 2002, Charles Steven Muscat vs Avukat Generali decided by the Constitutional Court on the 8th October, 2012, Il-Pulizija vs Amanda Agius decided by the Constitutional Court on the 22nd February, 2013, Il-Pulizija vs Tyrone Fenech decided by the Constitutional Court on the 22nd February, 2013. IrRepubblika ta’ Malta vs Martin Dimech decided by the Constitutional Court on the 26th April, 2013, Ir-Repubblika ta’ Malta vs Antonio Abdilla et decided by the Criminal Court of Appeal on the 9th May, 2013, Ir-Repubblika ta’ Malta vs Carmel Saliba decided by the Criminal Court of Appeal on the 2nd May, 2013, Il-Pulizija vs Jesmond Camilleri decided by the Criminal Court of Appeal on the 18th April, 2013, Il-Pulizija vs Alexei Zerafa decided by the Criminal Court of Appeal on the 31st July,

171

id-dritt

In this same case, the Court held that the accused who at the time was twenty one years old had given the statement after he was duly cautioned that what he was going to say could be used as evidence against him and reduced in writing, and that such statement was done without any promise of any benefit or advantage, and with no use of fear or threats and thus, the accused made no allegation that his statement was not taken in conformity with Article 658 of the Criminal Code aforementioned and thus, the court had to look into the matter and see whether it should still discard the statement once there is no wrong doing alleged with reference to Article 658 of the Criminal Code. The Court concluded that it was not going to discard the statement and held ‘li mhijiex sejra tiskarta l-istqarrija rilaxxjata mill-istess imputat, sa fejn din hija korroborata minn provi oħrajn’. Thus, it appears that the test as to whether a statement is admissible or not was whether such a statement was given according to Article 658 of the criminal Code.

Subsequent to the EU Directive 2013/48, the position has changed since as will be explained later on there are a number of cases where the statement was rejected and withdrawn from the proceedings solely on the premise that they were taken in the absence of legal assistance.

Going back to the term of ‘inducement’, such words of inducement have to be stated by a person in authority, such as police who are investigating and that such words are said in conjunction with the crime that is being investigated. For example, the investigating police officer tells the suspect words such as the following: ‘I know that you were robbing the old lady on Friday night and that you were with someone else but if you admit to this then we can say you have helped the police solve the author of this crime and pretend that it was your friend that induced you to commit this crime and thus your punishment would be less severe’.

The definition that is given by the authors Cross & Willkins44 to persons in authority is ‘anyone whom the accused might reasonably have considered to have been capable of influencing the outcome of a prosecution. A police officer, magistrate or prosecutor is clearly included’. Not much can be added to such a definition. It is also important to see who will be receiving the promised advantage or benefit with the words of such ‘inducement’ or who 2013, Il-Pulizija vs Paul Cutajar decided by the Criminal Court of Appeal on the 18th June, 2013, Il-Pulizija vs Deborah Osmond decided by the Criminal Court of Appeal on the 31st October, 2013, and Il-Pulizija vs Robert Busuttil decided by the Criminal Court of Appeal on the 20th February, 2014.

44

Op cit

172

Criminal Law

is going to be out in a worse position as a result of the threats or promises made to the interrogated person. According to Maltese law, such words of endearment or of threats have to be made to the person under interrogation and effect his person. The defence has to prove that as a result of such behaviour from the person in authority the person under interrogation made such a statement on the premise that he was going to better his/her position.

It is only the person under interrogation who should acquire such benefit or should be confessing due to fear and not any other person who has nothing to do with that same interrogation.

In this context, Archbold45 again states: ‘it is no objection to the admissibility of a confession if it was made under a mistaken supposition that a prisoners accomplice was in custody, even though it were created by artifice, with a view to obtain a confession’. In fact, I may boldly say that a promise of some advantage to others is not regarded as an inducement to confess. In Rex vs. Burley,46 the Court concluded that ‘A confession has been treated as voluntary although it was the result of ‘misleading’ the prisoner into thinking that his accomplices were also in custody’.

Professor Mamo47 provides the following: ‘The exhortation is only right for you to clear the innocent ones, has been held not to exclude the consequent confession’. Therefore, the fact that a person under interrogation states that a third party would be achieving a benefit or a disadvantage does not in itself translate to a statement not being made voluntarily, and therefore being inadmissible.

In the judgment Pulizija vs. Carmel Camilleri and Therese sive Tessie Agius48, the accused filed an appeal wherein he was claiming that the first court of Magistrates should not have taken into consideration his statement when delivering its judgment because he felt that his statement was not given voluntarily and was only given on account of promises he was allegedly given by the prosecution. In fact, in this case the fact that the accused person Carmel Camilleri made a statement because he was told by the prosecuting officer that by admitting to the crime that was being investigated about, his girlfriend Theresa Agius was going to be exempted from punishment was 45 46 47 48 272/94

Op cit.

A Treatise of the Law of Evidence eight edition by Lord S March Phillipps esq page 21.

In his book ‘Criminal evidence’ Decided by the Criminal Court of Appeal on the 9th October 1998 Application Number

173

id-dritt

not enough to have his statement vitiated.

At this juncture, the Court held that: ‘Huwa opportun li jingħad hawnhekk illi r rilaxx ta’ stqarrija da parti ta’ min ikun qed jigi interrogat mill-pulizija huwa fakoltattiv, fis-sens li dana m’għandu l-ebda obbligu li jirrilaxxja stqarrija jew li jirrispondi għal domandi posti lilu mill-pulizija. MInn dan jirizulta l-prinċipju fondamentali fil-materja ta’ stqarrija li din trid tkun volontarja u mhux spontaea sabiex ikollha valur probabtorju’.

In this case, the accused alleged that the interrogating officer had told him to think of Tessie Agius and the children and if he could help her, he should. However, once the police were faced with such an allegation the police officer explained that what he meant was that if he could help Agius he should say the truth. The Court felt that with such words the interrogating officer gave no promise to Camilleri from which he was going to obtain an advantage and that the words used amount to moral instigation and not to ‘temporal benefit’. Thus, his statement could not be considered as inadmissible.

In the said case of Carmel Camilleri, the prosecution brought forward persons who were present when the statement was obtained. The accused did not contest the fact that he uttered the words reported in the statement; however, he said that he uttered such words because he thought that by saying so, Therese Agius (the co-accused) would be exonerated from the charges. The appellant explained that he used to live with Ms Aguis and together they had three children and thus, did not want her to end up in jail.

So consequently, he decided to take all the blame and admitted to all the facts as stated by the prosecuting officer. He stated that he had repeated all that the investigating officer had advised him to say and thus, claimed that his statement was not made voluntarily and was obtained by means of promises done by the investigating officer. The appellant had said that: ‘L-ispettur għidltu li ma kontx ser inwieġeb. Qalli li kelli kull dritt.

Qalli li kienu sabu d-droga fid-dar għand Agius. Meta rajt hekk jien iddeċidejt Ii ngħid li dawk kienu tiegħi biex ma tiħux it-tort hi.

Għalhekk iddeċidejt li nieħu t-tort jien. Ħadt it-tort fuq suġġeriment tal-Ispettur. Hu qalli biex ngħin lil Agius bili hi kienet ser tieħu kollox 174

Criminal Law

hi. JIen iddeċidejt li nitfa’ kollox fuqi’.

Here, the accused followed the theory well known in the British system particularly that aforementioned of ‘inducement’. The British author J.D. Heydon, in his book Evidence Cases and Material explains this element of ‘inducement’ with the following.

‘Inducement suggests an inquiry into the actual state of the accused’s mind. The test depends on the actual effect of the inducement on the accused’s mind’.

The same author then makes reference to the judgment Regina vs Richards49 and outlines the test to be followed. He asks the question: ‘Did it go so far as to deprive the person to whom it was made of his free will and choice?’

The Court took note of such reasoning and held that the appellant had to prove the alleged fact that in other words that he would not have said what he actually stated if the conditions were different. It is imperative that with his evidence, the accused must throw doubt to the version of events as stated by the prosecution in obtaining the statement. Such doubts have to be generated either by arguments put forward by the defence or by other facts proven by the defence. This has to be done to seriously weaken the thesis of the prosecution.

6. Onus of proof of voluntariness of the confession As golden rule, the onus to prove that a statement was done voluntarily rests with the prosecution like all other pieces of evidence. The prosecution has to give prima facie proof about the existence of the statement being obtained voluntarily. The moment such fact is proved the accused would then have to prove the contrary in other words that his statement was obtained, extorted, or obtained by means of threats or intimidation, or of any promise or suggestion of favour. This is in line with the general dogma set out in our legal system that he who alleges a fact has to prove this same fact 49 [1974] 1 Q.B. 776. This was an English case decided by the Queen’s Bench that held that an accomplice to an assault cannot be convicted of a more serious offense than the principal, even if the accomplice had the mens rea necessary for the more serious offence.

175

id-dritt

onus probanti incumbit ei qui dicit non ei qui negat.

As witnessed in the case Il-Pulizija vs. James Gullaimier et50 the Court held that it was up to the prosecution to prove prima facie that the appellant released a statement voluntarily and that once this was proven it was up to the defence to prove the contrary. It held that: ‘Fi kliem ieħor meta d-difiża tissolleva l-punt tal-non volontarjetà tal-istqarrija rilaxxjata mill-akkużat, f’tali każ hija tkun assumiet l-obbligu li tressaq provi suffiċjenti in sostern tat-teżi tagħha, u dan sabiex l-akkużat jiġġenera dubju raġonevoli li l-verżjoni mogħtija mill-prosekuzzjoni...’

It provides further that:‘Dan ma huwa xejn ħlief l-applikazzjoni tal-prinċipju fundamentali fis-sistema legali li min qed jallega fatt irid jippruvah, iżda ma jfissirx ossia m’għandux jigi intiż b’mod li f’xi mument l-oneru li jiġi ppruvat ir-reat hu n-nexus bejn ir-reat u l-imputat jiġi spustjat għal fuq l-imputat, dan dejjem jibqa’ fuq il-Prosekuzzjoni tul il-proċess kollu. Iżda jekk akkużat bi sforz sabiex jindebolixxi l-provi tal-Prosekuzzjoni, jallega ċerti fatti, anke taħt ġurament, allura hu jkun xeħet fuqu l-oneru tal-prova ta’ dawn il-fatti’.

In other words, when the defence raises the issues of the non-voluntariness of the statement released by the accused person, in this case it would be assuming the obligation of bringing forward sufficient evidence to sustain its allegation, and raise doubt as to the version of events brought forward by the prosecution.51 This however does not mean that the defence must prove the commission of the crime or the nexus between the accused and the crime. There is no shift in the onus for it is the prosecution who has to prove all the elements of a crime. However, if the accused decides to weaken the evidence brought forward by the prosecution, and thus alleges certain facts even if under oath then he would have taken upon himself to prove such facts.

50

Decided by the Criminal Court of Appeal on the 12th February 1999.

51 Vide in this regard Il-Pulizija vs Ian Pace decided by the Criminal Court of Appeal on the 19th July 2011.

176

Criminal Law

In like manner, in the case Il-Pulizija vs Francis Spiteri,52 the Court confirmed that as a rule it is the prosecution that must prove all the elements of the crime. However, once the prosecution proves its case on a basis of prima facie it is up to the defense to prove the contrary particularly when facts lie particularly within the knowledge of the accused. In other words, when the defence claims that a statement was not obtained voluntarily, it assumes at the same time the duty to bring forward evidence. In this regard, however, the accused does not have to prove his case on a level beyond reasonable doubt. The accused has only to bring forward evidence to create a reasonable doubt on the evidence brought forward by the prosecution, in which case the prosecution then must neutralise such doubt. The Court stated the following: ‘Per regola il-prova tinkombi fuq il-Prosekuzzjoni, imma meta tkun għamlet prova prima facie, allura l-prova kuntrarja tiġi riversata fuq id-difiża partikolarment meta si tratta ta’ prova which lies peculiarly within the knowledge of the accused. Fi kliem ieħor meta d-difiża tissoleva l-punt tan-non volontarjietà tal-istqarrija rilaxxjata mill-imputat f’tali każ hija tkun assumiet l-obbligu li tressaq provi suffiċjenti in sostenn tat-teżi tagħha iżda qatt ma jkun rikjest mill-istess imputat li l-provi minnu prodotti jistabbilixxu bla dubju raġonevoli t-teżi tiegħu. Kull m’għandu jagħmel l-imputat huwa li jressaq provi suffiċjenti biex jiġġenera dubju raġonevoli fil-verżjoni mogħtija mill-Prosekuzzjoni, f’liema każ imbagħad l-oneru li jinnewtralizza dan id-dubju jinkombi fuq il-Prosekuzzjoni’.

In the judgment in the names Il-Pulizija vs. Donald Vassallo et,53 the Court examined in detail the facts of the case in particular to see if there were any intrinsic elements of the statements of the accused that were missing and thus make it inadmissible. This was done on the basis that the accused had stated that he had released his statement when he was in a state of fear and under oppression. The appellant stated that he was under psychological pressure to make the statement. The Court felt that it had to examine certain details in particular, if this was the first time that the accused appellant had been arrested and if he had any other similar past experience. In addition, the Court took note of the way he answered the questions that were put to him, if he chose not to reply to any questions as he is entitled to and other similar 52 53

Decided by the Court of Criminal Appeal Vol XLII pg. 1061 per Judge William Harding.

Decided by the Court of Criminal Appeal on the 30th April 1998 Appeal number 58/98

177

id-dritt

circumstances, which could throw light on the alleged fact that he was taken over by fear. The Court, however, felt that the circumstances did not denote such a state of fear and thus rejected his plea to overturn the decision taken by the first court and declare the statement as in admissible.

The question which arises in view of the above is whether it is the prosecution that has to prove that the statement was made according to law.

It is a general principle at law that the prosecution cannot exhibit a statement of an accused person in the proceedings, as evidence unless it is shown by them that such a statement was made voluntarily, in the sense that it was not obtained by any of the conditions set out in Article 658 of the Criminal code, namely that there was no fear or prejudice or hope or advantage exercised by the person in authority in obtaining such a statement. If the admissibility of the statement is in dispute, the issue has to be decided either by the magistrate hearing the case of if the accused is going to appear before a jury then such matter has to be determined by the trial judge before the jury is so appointed and this in the preliminary stage when the preliminary exceptions are being addressed. As stated in the British leading case R vs Thompson,54 the prosecution bears the legal burden of proving beyond reasonable doubt that the confession is voluntary if it fails to prove its voluntariness, then the statement is declared inadmissible.55 This position seems to be the same in the United Kingdom, as outlined in the leading case in the names Ibrahim vs The King56 delivered by Lord Sumner: ‘It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear or prejudice or hope of advantage exercised or held out by a person in authority or by aggression’.

The twin goals of the Confessions Rule are the following: i. Protecting rights of accused.

54 R Vs Thompson (1893) 2 QB 12 CCR 55 Vide also in this vein Il-Pulizija vs Michael Carter decided by the Courts of Magistrates as a Court of Criminal Judicature on the 23rd April, 2001 56 (1914) A.C. 599 (P.C.), at p. 609:

178

Criminal Law

ii. Without unduly limiting society’s need to investigate and solve crimes.

In Canada, before a statement (made by an accused to a person in authority) can be used for any purpose at trial, the Confessions Rule requires the Crown to prove beyond a reasonable doubt that the statement was made voluntarily. Historically, the two rationales for the voluntariness rule were: i) To exclude unreliable confessions from evidence, and ii) To prevent prosecutorial agents from compelling selfincrimination from an accused. This rule was reinforced in by the Supreme Court of Canada in R. vs. Oickle.57 It is crucial to keep in mind that a focal component of the voluntariness inquiry identified in the Oickle case is the operating mind test. Confessions are involuntary when they are extracted from suspects who are not in possession of a contriving mind in the sense that they do not know what they are saying or that they are saying it to police who may use it against them. Confessions from injured or hypnotised suspects, for example, can be excluded on this basis. The Operating Mind Doctrine requires that the accused knows what he is saying and what is being uttered by him may be subsequently used to his detriment. Like oppression, the Operating Mind Doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule. The Operating Mind Doctrine is just one application of the general rule that involuntary confessions are inadmissible.

This judgement accentuated a contextual approach and listed the following captions to describe the more common scenarios that decrease the voluntariness of confessions: (a) Threats or promises, (b) Oppression, (c) Operating mind, and (d) Police trickery that would shock the community.

57

2008 SCC 38 (Oickle).

179

id-dritt

Voluntariness is the barometer of the confessions rule. Whether the worry is threats or promises, the lack of an operating mind or police trickery that unfairly denies the accused’s right to silence, this Court’s case law has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible. This will be further elucidated upon in the following cases.

7. Can any person make a confession?

Our law provides that every person of sound mind is admissible as witness, unless there are objections to his competency.58 The court shall explain to the witness the obligation of the oath if, on account of his age or for other reasons, it appears doubtful whether he understands such obligation; and if, notwithstanding such explanation, the court shall deem it necessary that the witness, before giving evidence, be further instructed as to the consequences of false testimony, the court may, if it considers the deposition of such witness to be important for the ends of justice, adjourn the trial to another day, and, should the case be before the Criminal Court, discharge the jury.59 No person shall be excluded from giving testimony for want of any particular age and it shall be sufficient that the court be satisfied that the witness, though not of age, understands that it is wrong to give false testimony.60 A witness professing the Roman Catholic faith shall be sworn according to the custom of those who belong to that faith; and a witness not professing that faith shall be sworn in the manner, which he considers most binding on his conscience.

‘If it shall be necessary to examine any person who either through infirmity or old age is unable to appear in court, such person shall be examined by the court, or, if the court so orders, by a member of the court, in the place of his or her abode.’61 With regards to the taking of evidence of children under age, it is to be noted that a person is considered to be of age when he is eighteen years 58 59 60 61

Criminal Code (Chapter 9 of the Laws of Malta), Section 629(1) Criminal Code (Chapter 9 of the Laws of Malta), Section 629(2) Ibid, Section 630 Ibid, Section 647(1)

180

Criminal Law

old for the purposes of criminal proceedings. The law does not place any imposition on the court for hearing any person who has not as yet celebrated his eighteenth birthday, but it rests upon the court to assess the situation. It must, first of all, explain to the witness the importance of the oath and the repercussions that may ensue should the witness be found guilty of perjury.

Once the court gives the oath and is convinced that the witness though under age is understanding the severity or otherwise of his deposition, it can then proceed to take his evidence under oath. The law states that ‘no person shall be excluded from giving testimony for want of any particular age; it shall be sufficient that the court be satisfied that the witness, though not of age, understands that it is wrong to give false testimony’.62 In the Criminal Code, we have no provision with regards to whether persons who have a mental disability can testify. However, it is a general principle that should such a person be in control of his intellectual and volitional powers and understand the importance of saying the truth then he would be considered as an admissible witness. However, in the United Kingdom the situation is a bit different in that there is a statutory provision for such a circumstance. The PACE Act 1984 provides additional safeguards for those who suffer from a ‘mental handicap’. This is defined as being in ‘a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning’.63 In the United Kingdom, where the case against an accused depends fully or in part on a confession made by a person and the court is satisfied that a) he is mentally handicapped; and b) that the confession was not made in the presence of an independent person64, the judge must warn the jury that there is a special need for caution before convicting in assurance on the basis of the confession.65 The purpose for such a provision is so that there is additional protection for a mentally handicapped66 accused. For certain, whether a person is mentally handicapped within this definition each case should be decided on its own facts rather than figures from intelligent tests in some other case.67 The jury ought to be very careful prior to convicting such a 62 Ibid, Section 630 63 Section 77 of the UK PACE Act. 64 ‘Independent person’ does not include a police officer or a person employed for or engaged on police purposes. Section 77(3) of the PACE Act 1984.

65 Section 77(1) of the PACE Act 1984.

66 ‘mentally handicapped’ in relation to a person, signifies that he is in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning. Section 77(3) of the PACE Act 1984.

67 Kenny, The Times (27th July, 1993).

181

id-dritt

person based on his own confession, if such confession was not made in the presence of an ‘independent person’ and secondly, if there is no or little other evidence available against him. The Judge should warn the Jury of the special need for caution prior to convicting.68 The wording of the caution is a matter left in the discretion of the Judge but he must explain the reasons for the need of the caution, particularly that the person is mentally handicapped and that the statement was not given in the presence of an ‘independent person’. In the Lamont69 case, the Court of Appeal quashed a conviction in a case where the warning was not given and said that such a warning was an important part for an essential summing up.

8. Are all confession admissible, or can the Court use its discretion in accepting a confession as evidence?

The subject of inadmissibility of statements as valid evidence against the person releasing them has been discussed in detail, many a time and more so with the hope of controlling and reducing abusive methods used by the police rather than from the point of view of assessing whether really and truly what the accused is alleging is true. This in consonance with what is provided in the book Criminal Evidence by Cross and Williams that ‘certain standards of the police practices have to be observed and confessions obtained in violation of such standards are to be rejected’.

Unreliable confessions were given a broad interpretation by the Court of Appeal in R v Fulling70. This included: • Confessions obtained as the result of an inducement - for example a promise of bail or a promise that a prosecution would not arise from the confession; • Hostile and aggressive questioning; • Failure to record accurately what was said; • Failure to caution; 68 69 70

Section 77(2) of the PACE Act 1984.

(1989) Crim L.R 813 (1987) 2 All E.R. 65

182

Criminal Law • Failure to provide an appropriate adult where one is required; • Failure to comply with the Code of Practice in relation to the detention of the accused - for example a failure to allow sufficient rest prior to an interview; • Failure of the Defence Solicitor or Appropriate Adult to act properly - for example by making interjections during interview, which are hostile to the defendant. It is important that prosecutors take into consideration whether confessions can be adduced to be reliable or not by the courts.

In Malta, the courts do not have much discretion as to whether to question the validity or otherwise of a statement provided it was released according to law. However, the Judge does have discretion with regards to whether a witness should give evidence or not.

A very relevant matter to the issue under examination is whether what a suspect says under interrogation casually to a person in authority is tantamount to a statement and could such evidence be used against that same suspect in all cases. Namely, does all a suspect say orally to a person in authority amount to a confession and could the defense ask for such information to be disregarded? There is no doubt that all that a suspect states to a person does not amount to hear say but to res gestae and thus is considered as admissible evidence. However, a corollary to this is that all hearsay evidence is inadmissible in other words all that a witness states which is based on facts or evidence told to him by a third party amounts to hearsay evidence and thus inadmissible and cannot be used as evidence to prove the guilt of an accused person. This theory was embraced in the judgments in the names Il-Pulizija vs. Miriam Sant71, Il-Pulizija vs. Michael Ciappara72 and Il-Pulizija vs. Hassan Khaled.73 This issue was further taken up in the judgment in the names Il-Pulizija vs. Omar Psaila.74 The Court held that:71 72 73 74 535/2012

Decided by the Court of Criminal Appeal on the 22nd October 2001.

Decided by the Court of Criminal Appeal on the 4th July 2002.

Decided by the Court of Criminal Appeal on the 5th June 2003.

Decided by the Court of Criminal Appeal on the 20th June 2016 Application number

183

id-dritt

“L-artikolu 658 tal-Kap 9 huwa importanti ferm għax jista’ jintuża f’każ li persuna ma tkun wieġbet għall-ebda mistoqsija fl-istqarrija bil-miktub iżda tkun tkellmet dwar l-għemil li wettqet.

Dak li jgħid imputat lil xi persuna oħra jista’ jittieħed bħala prova u ma jitqiesx bħala hearsay.”

In this case, the appellant was a twenty-seven-year-old when he was spoken to by the police and thus was not a minor. Apart from all this, it was not the first time that the accused had an encounter with the police as could be evidenced by his police conduct sheet. In addition, the appellant was given a caution before he spoke up and thus, it did not appear that the appellant was in any way constrained to speak up. So much so that when he made his statement, he gave no details with regards the accusations in question even when asked directly with regards to what he himself had stated prior to the taking of the statement. He did not even sign the statement. In this case, the police had sent for Mario Galea who had told them that the accused was driving the car they were inquiring about. Thus, the accused person was the ‘suspect’. It is true that he was not given his right to legal assistance, however, when he went to the police he went voluntarily and was not under arrest.

It has to be noted that as a suspect whilst interrogated by the police, the accused was not given any caution, and thus what was told to the police without the caution could not be taken into consideration not on the premise that no caution was given, but due to the fact that he was not given the right to legal assistance and thus what was said to the police could not be taken into consideration. This was in line with the judgment in the names Ir-Repubblika ta’ Malta vs. Alfred Camilleri75. Thus, the Court decided that it must ignore what the accused appellant said to the police officer before the statement was taken.

Alike, the Court made reference to another two judgments wherein the same stand was taken in particular Anthony Taliana vs. l-Kummissarju tal-Pulizija u l-Avukat Generali76 and Charles Steven Muscat vs. l-Avukat Ġenerali77. In the former case, the defence had asked so that the reports of experts nominated in the case primarily of the scientist Godwin Sammut 75 Decided by the Constitutional Court on the 20th June 2014.

76 Decided by the Constitutional Court on the 6th February 2015 Application Number 35/2012/1 77 Decided by the Constitutional Court on the 8th October 2012 Application Number 38/2012/1

184

Criminal Law

and of the medico-legal Doctor Dr Mario Scerri are withdrawn from the proceedings since they were based on what the accused had told them. The Court, however, concluded that it was not ordering the withdrawal of anything that the accused said to these experts as long as what what concluded by them was based on objective and factual observations. However, if what was concluded by them was based solely on the evidence given by the accused in the absence of his lawyer, then the Court should give importance to such a factor. The Court concluded by stating that: ‘din il-qorti hija tal-fehma illi, dak mistqarr mill-attur m’għandux jitneħħa mill-inkartament iżda, billi dak mistqarr ingħad f’ċirkostanzi illi fihom ma tħarisx għal kollox il-jedd tal-attur taħt l-art. 6 tal-Konvenzjoni, min għandu jiddeċiedi fuq il-ħtija tal-attur m’għandux jieħu qies ta’ dak mistqarr bħala prova tal-kontenut tagħha għall-finijiet ta’ ħtija o meno tal-attur iżda jista’ jieħu qies tiegħu għall-finijiet ta’ kontroll u kredibilità ta’ xhieda.’

In a judgment in the names Ir-Repubblika ta’ Malta kontra Sergii Nykytiuk,78 the Court held that the position should be such that the statement should remain forming part of the proceedings and given to the Jury to decide upon though to decide upon it with regards to its probative value if such a statement is not a one in terms of the law. It held that: ‘wara li għamlet referenza għal Sentenzi mogħtija millQorti Kostituzzjonali ddikkjarat li l-linja gwida għandha tkun li l-istatement jibqa’ fil-Proċess bħala parti mill-provi u mogħti wkoll lill-ġurija jekk mitlub, u spetta lil min irid jiġġudika l-fatti jekk bħala fatt l-akkużat kienx jew ma kienx assistit minn avukat fil-bidunett tal-arrest tiegħu. Jekk ma kienx, allura dan ikollu konsegwenzi negattivi fuq l-istatement u min għandu dritt jiġġudika fuq il-fatti, jigi indirizzat f’dan is-sens.

Però l-istatement m’għandux «a priori» jigi sfilzat mill-Proċess għax b’hekk ikun qed jigi uzurpat dritt ta’ konsiderazzjoni li jispetta biss lil min ikun qed jiġġudika l-fatti’.

The author, however, does not agree with this line of thought as expressed in the previous judgment because she feels that whenever there is a breach of a fundamental right such a matter should not be decided upon by jurors.

78

Decided by the Criminal Court on the 2nd September 2011

185

id-dritt

In this latter case there was no contestation by the Attorney General that the statement of the accused was taken when the accused was not assisted by a lawyer and without the accused having been given such a right. Thus, the decision of the Criminal Court means that the jurors are going to be asked to decide on what is obvious and on what is not in contestation, but at the same time are going to be made aware of some evidence which was taken abusively and in breach to the principle of a fair trial to which the accused is entitled to. Such a situation is pitiful and thus the law should be addressed immediately in this regard so as to avoid potential further breaches to the rights of the accused as stated above. In this way, the jurors are not asked to decide on a question relating to law but conversely are going to be given direction from the deciding judge to express themselves on a legal issue. It held: ‘din il-Qorti żżid tirrileva illi mhuwiex il-każ illi kwistjoni dwar leżjonijiet ta’ drittijiet fondamentali sejra tkun deċiċa mill-ġurati.

Kif qalet tajjeb il-Qorti Kriminali fis-sentenza tagħha, il-ġurati mhux sejrin jesprimu ruħhom dwar dritt izda sejrin jingħataw direzzjoni mill-imħallef togat dwar punti ta’ dritt inkluż dwar x’għandhom iqisu meta jiġu biex iqisu l-provi illi dwarhom huma jkunu jridu jagħtu deċiżjoni’.

However, in two decrees given by the Court, namely il-Puliizja vs. Jonathan Cachia79 u Il-Pulizija vs. Emilio Cereale,80 the Court went a step forward in that it ordered that anything which the accused person said to other people in authority during the investigation should not be kept in the records of the case so as not to influence the deciding magistrate in his decision, and thus ordered that those documents namely the police reports to be withdrawn from the proceedings. Therefore, as illustrated from the above there seems to be no hard and fast rule as to whether inadmissible evidence should still form part of criminal trial or not. It depends on the presiding Judge. However, whether the evidence remains exhibited or not, the direction by the court is to disregard evidence which is not admissible even though still part of the proceedings. This direction certainly needs legislative clarification so that there may be legal certainty.

79 Decided by the Courts of Magistrates as a Court of Criminal Judicature on the 16th November 2011.

80 Decided by the Courts of Magistrates as a Court of Criminal Judicature on the 6th October 2011.

186

Criminal Law

9. The statement of a co-accused does not affect an accused person Another important issue regarding the giving of a statement is whether the statement of a person affects a co-accused. The law81 as already outlined provides that ‘a confession shall not be evidence except against the person making the same, and shall not operate to the prejudice of any other person’.

Howbeit, in those cases where the only witness against the accused for any offence in any trial by jury is solely an accomplice, the court shall give a direction to the jury to deal with the evidence of the witness with caution before embracing it in order to convict the accused.82 The evidence of persons who are co-accused for the same charge only has a bearing on the accused himself who has chosen to testify voluntarily.

Such evidence will not affect the guilt or innocence of the co-accused and thus it can be said that a co-accused is not a competent or compellable witness vis-à-vis the other co-accused. However, once and if the case of the co-accused becomes a res judicata (perhaps by means of an early admission on behalf of one the co-accused, or in those cases where the Attorney General issues a nulle prosequi in regard to one of the accused), then in regards to the case of the co-accused whose case would still be on going the evidence of that co-accused (whose case would have become a res judicata) is admissible and such a witness becomes both a competent and a compellable witness.83 In the recent judgment in the names Repubblika ta’ Malta vs. Rio Micallef et,84 the defence had asked the Court not to take cognisance of the statement released by co-accused and therefore asked to have it withdrawn from the proceedings on the basis that such statement was taken in breach of Sections 636(a) and (b) of the Criminal Code and in line with the reasoning 81 Criminal Code (Chapter 9 of the Laws of Malta), Section 661.

82 Ibid, Section 639(3) 83 Vide Ir-Repubblika ta’ Malta vs. Omissis u Ian Farrugia Decree given by the Criminal Court on 22nd December 1998. Vide also Il-Pulizija vs. Nikolai Borg Olivier’ decided by the Criminal Court of Appeal on 10th May 1999, Il-Pulizija vs. Patrick Mangion decided by the Courts of Magistrates as a Court of Criminal Judicature on the 21st November 2014, Il-Pulizija vs. Victor Gauci decided by the Court of Criminal Appeal on the 26th January 2001.

84 Decided by the Criminal Court on the 11th February 2015 Application Number 14/2015.

187

id-dritt

of recent judgments, wherein it was held that the evidence of a co-accused constitutes no evidence in regard to the accused, and thus in principle cannot be considered as admissible. This reasoning is desumed a contrario sensu from what is provided for in Section 636(b) of the Criminal Code in the sense that a co-accused becomes a competent witness in relation to an accused person, only after the criminal case he has pending in his regard becomes a res judicata. In the case under examination, the criminal proceedings were still ongoing in regard to the witnesses and therefore the aforesaid rule should have applied in that their evidence against the accused is not admissible. The Court upheld the plea of the defence and added that it had already expressed itself in this manner in a number of judgments.85 On a consonant note, in the case in the names Repubblika ta’ Malta vs. Matthew Bajada,86 the accused was charged with trafficking of drugs.

The defence requested that the statement of a particular witness Joseph Camilleri together with his sworn evidence given before an inquiring Magistrate should be withdrawn from the proceedings that were being held against the accused Bajada. The defence based its request perhaps ‘ex abundantia cautela’ in view of what is provided for in Section 636, which provides in which circumstances an accused person can give evidence in relation to a co-accused. The prosecution, on the other hand, explained that the proceedings in regard to this witness Camilleri were still ongoing and this person was summoned to appear as a witness in the appointed Jury of Bajada. The prosecution held that the purpose of the statement in the proceedings is simply so that the prosecution could control the evidence that would be given by the witness should he take the stand and testify and once the case in his regard is over and forms a res judicata then he would be free to give his evidence.

The Court, rightly so, made reference to the law which provides that ‘where the only witness against the accused for any offence in any trial by jury is an accomplice, the Court shall give a direction to the jury to approach 85 Sua Maesta r-Re vs. Carmeo Cutajar ed altri, Decided on the 18th January 1927, IlPulizija vs. Toni Pisani decided on the 11th November 1944, Il-Maestà tiegħu r-Re vs. Karmenu Vella decided on the 3rd December 1947, The Police vs. Alfred W. Luck et decided on the 25th April 1949, Ir-Repubblika ta’ Malta vs. Faustino Barbara decided on the 19th January 1996, Il-Pulizija vs. Nasher Eshtewi Be Hag et decided on the 2nd February 1996, Il-Pulizija vs. Carmelo Camilleri u Theresa Agius op cit Repubblika ta’ Malta vs. Domenic Zammit et decided on the 31st July 1998 and Ir-Repubblika ta’ Malta vs. Ian Farrugia decided on the 22nd December 1998 by the Criminal Court of Appeal.

86 Decided by the Criminal Court on the 19th September 2010 Application Number 45/2010.

188

Criminal Law

the evidence of the witness with caution before relying on it in order to convict the accused’. However, at the same time made reference to the Drugs Ordinance which further provides that ‘notwithstanding the provisions of Article 639(3) of the Criminal Code where a person has purchased or otherwise obtained or acquired a drug contrary to the provisions of this Ordinance , the evidence of such person in proceedings against the person from whom he shall have purchased, obtained or acquired the drug, shall not require to be corroborated by other circumstances’.87 The Drug Ordinance also states that ‘notwithstanding the provisions of Article 66188 of the Criminal Code, where a person is involved in any offence against this Ordinance, any statement made by such person and confirmed on oath before a magistrate and any evidence given by such person before any court may be received in evidence against any other person charged with an offence against the said Ordinance’.

Therefore, a priori, this provision of the law seems to imply that there is an exception to the general rule that the statement of a co-accused cannot be of any gain or prejudice to the accused person. In these circumstances, when a person is charged with crimes emanating from the Drug Ordinance or the Medical and Kindred Profession Ordinance, the statement of an accomplice can be exhibited in the proceedings of the principal. However, once summoned to confirm this statement on oath, ironically, he can choose not to give evidence on the premise that he may incriminate himself. So really, the validity of such a provision has its limitations. It only seems to find solace if the proceedings of the accomplice or co-accused are res judicata when in such case there is no possibility of incrimination.89 The Court in the Bajada case concluded that the position regarding evidence of a co-accused is regulated by Article 636(b) of the Criminal Code as interpreted over the years by the Maltese Courts which means that first the proceedings in relation to the witness have to be final before he can be asked to testify before the accused. With regards to the presenting of the statement of the witness of a co-accused person in the proceedings of an accused person this will only have effect for the purpose of controlling the witness should he decide to testify. On the other hand, the statements 87 Dangerous Drugs Ordinance (Chapter 101 of the Laws of Malta), Section 30 88 Section 661 of the Criminal Code of Malta.

89 Vide also Ir-Repubblika ta’ Malta vs. Charles Paul Muscat decided by the Court of Criminal Appeal (Superior jurisdiction) on the 13th October 2016. Bill of Indictment 17/2015

189

id-dritt

that were released in terms of the Drugs Ordinance90 and the Medical and Kindred Profession Ordinance91 will only have effect in the opportune moment, in other words when the trial of the person who released them is over and is a res judicata.

In a congruent judgment in the names Ir-Repubblika ta’ Malta vs.

Carmelo Maria Grazia sive Karl Ebejer,92 the accused was objecting to the statement of a co-accused remaining in the acts. The Criminal Court held that Mark Meli was originally indicated as a witness. It held that according to custom, it is not usual that a statement is withdrawn from the proceedings and should remain part of the proceedings so that it may be used to control such a witness once he takes the stand, just in case such a witness like Mark Meli forgets something or contradicts part of his previous written testimony, and thus the prosecution would be able to be confronted with it, and thus who is to decide will be able to decide on the inconsistency of the witness should it arise. The accused, however, appealed this argument and stated that the statement of Mark Meli was only treated by the Criminal Court as a simple statement. It did not treat this statement as one of a person who was initially arraigned as a co-accused prior to the Attorney General asking for the separation of cases. He held that the statement was not intended to be used as a means of control as understood by the Court. Mark Meli did not remain a co-accused in the same proceedings as that of the accused appellant, and thus that evidence which was once presented in the proceedings, since it was of interest to the co-accused, should all be withdrawn in the current proceedings since they exclusively related to him and should not be left in the proceedings on the presupposition that they could be used as a method of control.

The Appeal Court, however, concluded that: ‘ladarba Mark Meli m’għadux ko-akkużat, huwa ammissibbli bħala xhud fil-proċediment kontra l-appellant. Propju għax hu xhud ammissibbli, kwalsiasi stqarrija li seta’ għamel Mark Meli għandha tibqa’ tagħmel parti mill-atti tal-proċediment tal-lum għaliex tista’ sservi bħala kontroll fuq dak illi jixhed’.

90 Dangerous Drugs Ordinance (Chapter 101 of the Laws of Malta) 91 Medical and Kindred Profession Ordinance (Chapter 33 of the Laws of Malta) 92 Decided by the Court of Criminal Appeal on the 31st October 2013. Application number 30/2010.

190

Criminal Law

10. Must a caution be given prior to the taking of statement?

This brings us to another interesting notion regarding statements in that whether the person ‘in authority’ is obliged to give caution prior to the taking of a statement and whether the absence of such a caution is tantamount to an illegal taking of a statement, and consequently affect the admissibility or otherwise of such statement.

An interesting argument was brought up in the case Il-Pulizija vs. Francis Xavier Cuschieri,93 whereby the appellant asked for his statement to be considered as inadmissible because the investigating officer did not caution him prior to him making a statement. The appellant made reference to Article 494 of the Code of Practice for the Interrogation of Arrested Persons issued by the Commissioner of Police in terms of the Police Ordinance, whereby the investigating police is bound to admonish a suspected person to his right to remain silent, and that should such person utter a word, such word can be brought forward against her as evidence. This said article stipulates that such right is to be given to a person before any questions are asked. The appellant felt that such an obligation had a legal bearing on the prosecution.

The latter, however, did not agree to such a submission and made reference to Section 658 of the criminal code and said that the only obligation on the prosecution is to make sure that the person under interrogation releases his statement voluntarily and that no threats, promises or favours are given from the investigating officer. The Court, in fact, embraced such argument and said that it was only bound to follow Section 658 of the criminal code to see that a statement was obtained according to law and that there was no incumbent need on the prosecution to give a caution to the suspected person.

The author, however, states that for the last thirty or forty years, it has become customary for the investigating officer to give such a caution before asking any questions to a suspected person, in that such person has a right to remain silent and that whatever he states can be used as evidence in his regard, or alternatively that he has a right to remain silent should he think 93 Decided by the Court of Criminal Appeal on the 11th March 1999. Appeal Number 308/98 94 Code of Practice for the Interrogation of Arrested Person, Fourth Schedule to Chapter 164 of the Laws of Malta, Article 4.

191

id-dritt

that he could incriminate himself when replying. This right is known as nemo debet prodere se ipsum95. Such right is also constitutionally recognised. The right to silence is not tantamount to a confession of guilt, although today, with the rule of inference, this right has been impinged upon.

11. Concluding remarks on the topic of confessions In conclusion, my article suggests for there to be less contestations in court with regards to the validity or otherwise of statements, and so for there to be less allegations directed at the investigating police, there should be some amendments to the current laws relating to the taking of a statement, and this in the name of transparency and for a better administration of justice to which the suspect and accused person is entitled to.

1. There should be a legislative provision placing an obligation on the interrogating police to give a caution to a person the moment he considers him as a ‘suspect’ the moment he is going to ask him questions relating to the commission of an offence. This would be beneficial both to the suspect in that it will be assuring his right to a fair trial in that he would incriminate himself less, and likewise the prosecution will be in a better place to sustain their credibility in that the statement released by the suspect/ accused was voluntary.

2. The law should provide guidelines that should be followed in those instances where the suspect is suffering from a mental handicap. Possibly, should the police be made aware of such mental disability of the suspect then he is obliged to have him examined by a medical doctor prior to the interrogation and only upon direction given by the medical officer that the suspect is fit for interrogation that the interrogation continues. Also, such medical officer would have to certify the date of examination and that in his opinion the suspect is fit to be interrogated. Here again this would reduce abuse of police power in interrogating people who possibly can be vulnerable.

3. Similarly, when the suspect is of an advanced age say over 95

Nobody ought to be compelled to betray himself.

192

Criminal Law

eighty years of age the police should ask for the suspect to be examined medically in that such a person is not suffering from any mental condition of amnesia or so. This is being said due to the rule of inference that has been introduced in the legal system here in Malta. This being said, should an elderly person refuse to speak up on the pretext that she cannot remember and thus choose to remain silent an inference may set in if it meats the conditions.

4. Also, the law should provide that when the suspect is a minor he should not be investigated in the absence of a parent or leal guardian. If the offender is a parent, then the minor can choose to have any other adult of his choice to assist him/her throughout the interrogation to make him/he feel more comfortable and less anxious.

5. The definition of ‘confession’ provided for in Section 658 of the Criminal Code should once again be amended so as to dismiss any confession obtained by fraud, oppression or illegal means and not have it limited with the words therein mentioned.

Since the idea should be that any wrong-doing carried out by the person in authority should be condemned, and also, there should be included a provision that states that should a statement not be in line with the law then such confession is not admissible and should be discarded once and for all. It is not enough that case law provides that no importance is to be given to such statements, but the law should provide that such statements should be withdrawn from the proceedings so as not to influence any party.

6. Likewise, there should also be a new offence in the law on the basis of the above in that should it result to the court that the ‘person in authority’ who investigated the suspect was wrong in his ways and induced a statement in conditions which were not inductive to the fair trial that an accused person is entitled to, then such person should be deemed to have committed an offence of abuse of power. This too would encourage more professionalism in the taking of statements and lead to a considerably less number of pleas in this regards and the 193

id-dritt

smoother running of Justice.

194