ii) Intent to Harm the Person Accused

accusation fails. The imputation of such fact may, in appropriate circumstances, constitute slander or defamation98 .

In the Criminal Appeal of Police vs. Giuseppe Attard99, Mr. Justice Montanaro Gauci held that, in so far as the accusation made is not in respect of an offence which can give rise to the exercise of a criminal action before the Courts of Criminal jurisdiction, a charge of calumnious accusation fails, even though the fact falsely attributed to the victim may expose him to disciplinary action and the infliction of punishment by authorities other than the Criminal Courts (e. g. under Sections 9 and 13 of the Police Ordinance - Chapter 35).

(ii) Intent to Harm the Person Accused

The accuser who gives the information or makes the report or complaint to the competent authority against another person may have grounds for believing or at least suspecting him to be guilty of the offence charged. Notwithstanding that the evidence may subsequently disclose and establish the innocence of the accused, the law could not reasonably punish the accuser who would not have acted from malice and would have merely used and not abused a right which is competent to him. Even in Roman Law, which repressed calumny with the greatest severity, the acquittal of the accused was not reason enough for subjecting the accuser to the punishment for calumny. The Magistrates had the duty to inquire “de accusatoris consilio” and to see “qua mente ductus ad accusationem processit” and to excuse him entirely from the punishment for calumny whenever “justum ejus errorem repererint”. Indeed, such punishment could not even be applied in the case in which the accuser had acted rashly or with patent imprudence without pondering on the consequences of the accusation he was making. In our law which requires the intent to harm, the same principles apply. The “harm” to which reference is here made may consist merely in exposing the victim to the possibility of criminal proceedings being taken and punishment awarded against him. Indeed, in order that the crime of calumny may subsist, the possibility of such proceedings is essential. This does not mean that it is absolutely necessary that the

98 Vide Rex vs Giuseppe Portelli, 8/5/1915, Law Reports Vol. XXII, Part IV, pg. 33; Police vs Attard, 7/11/1949, Law Reports Vol. XXXIII, Part IV, pg. 965 99 7/11/1950

accusation should indicate the person of the accused by name, it being sufficient if the information, report or complaint contain the particulars necessary to identify him. Nor is it necessary that the false accusation should contain minute details of facts or indications of articles of the law; provided it contains sufficient matter to give rise to proceedings100 .

As the contents of the false accusation must be such as to expose an innocent person to criminal proceedings, it follows that if the offence imputed to the victim is one which cannot be prosecuted except on the complaint of the injured party, then, according to Pessina, a mere “information” will not suffice to constitute calumny but a formal “complaint” of the party entitled to lodge it is requisite101 .

Also, in connection with the principle that the possibility of injury to the victim is an essential condition, it is generally held that the crime of calumnious accusation does not arise when the fact falsely imputed is no longer punishable on account of the action in respect thereof being extinguished through prescription or some other cause or barred by a final judgement that the fact does not constitute an offence. Calumny is made punishable because, through it, the administration of justice may be misled into sentencing an innocent person, and this legal possibility cannot arise if from the contents of the information, report or complaint itself, it is evinced that the criminal action is extinguished or barred102 .

Always in connection with this element of the “intent to harm” the question is also discussed whether a calumnious accusation committed by a person for the purpose of saving himself from a charge or a calumnious accusation "per retorsionem" or "per exceptionem" is liable to punishment. Pessina makes a distinction: he holds that no crime of calumny is committed by a person who stands already charged with an offence and who in order to exculpate himself of the charge tries to accuse and to shift the responsibility for the fact on to another person. In any such case, this writer says, the accuser does not so much intend to injure others as to save himself. If, however, a delinquent, well knowing that he has committed an offence, accuses another thereof

100 Maino, loc. cit., para. 1100 101 Op. cit., Vol. III, page 251; also Maino loc.cit. 102 Carrara, Programma, Parte Speciale, Voi. V, para. 2618; Pessina, op. cit., Vol. III, pg. 255, quoted by Maino, loc. cit., contra Impallomeni, Cod. Pen. Ital. Illustrato, Vol. II, 248 - 249