Issue link: https://maltatoday.uberflip.com/i/1192401
| SUNDAY • 15 DECEMBER 2019 maltatoday 13 Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates FOR the accused to be found guilty on the basis of the testimony of one witness, the prosecution must prove that such testimony is safe and satisfactory. FURTHERMORE, in overturning a judgement wherein the inferior court determined the guilt of the accused on the basis of such a testi- mony, the Court of Appeal can, very exceptionally, quash the conviction if the overall feel of the case leaves doubt as to whether an injustice has been done. THIS was held by the Court of Criminal Appeal by presiding Hon. Ms. Justice Consuelo Scerri Herre- ra quoting jurist Blackstone in the case of Police vs Nicholas Obaseki. In January of 2019, the accused was convicted by the Court of Mag- istrates (Malta) as a Court of Crimi- nal Judicature of forging currency notes or uttering any forged cur- rency notes knowing the same to be forged, and this in violation of Arti- cle 45 of the Central Bank of Malta Act, along with other crimes of a similar nature. He was convicted of three out of the four charges he was accused of and presented an appeal application asking that the part of the judge- ment where he was found guilty to be revoked due to the fact that he held that the prosecution rested on the testimony of a certain Mrs. Ba- koush, who had filed a police report against the appellant for exchang- ing money with him which was counterfeit. Mrs. Bakoush held that she met the appellant at a petrol station in Malta and recognised him as her friends' ex-boyfriend. She asked him to exchange some money, and claimed he gave her two counterfeits fifty euro notes. However, the appellant claimed that when the police had searched his home and vehicle, they found nothing of suspicion or any irregu- larities. He claimed that the witness want- ed to get revenge on him for the breakup with her friend and made up the allegations. He denied that the incident happened. He furthermore held that the pros- ecution certainly did not prove his guilt to the degree required by law and did not even present any CCTV camera recordings to prove he was ever even on site, nor any finger- print on the counterfeit notes. After considering the testimony of the witness as well as the police of- ficers involved in the investigation, the Court of Appeal commented on a number of irregularities in the way the Court of Magistrates con- sidered the evidence. One of these, is that although the witness claimed she realised imme- diately that the notes were counter- feit, she waited until the next day to report to the police. This raised questions about her credibility. The Court held that it is well es- tablished in Maltese jurisprudence that in a criminal appeal the ap- pellate court should not throw out the conclusion of the court of first instance carelessly, but must only consider whether that court could have legally and reasonably reached the conclusion that it reached. Quoting from the judgement Re- publika vs Ivan Gatt (Court of Criminal Appeal 1994), it held that when considering the examination of the evidence by the court of first instance, an appellate court must consider whether the principle of "innocent until proven guilty" was respected. In considering the law on this is- sue, the Court examined the provi- sions of Article 638 of the Criminal Code which states that care must be taken to provide the fullest and most satisfactory proof available and sub-article two holds that in all cases the testimony of one witness if believed by those who have to judge of the fact shall be sufficient to constitute proof thereof. Nonetheless, although the testi- mony of one witness is enough to constitute proof, in this case the Court was not convinced that the prosecution managed to prove its case beyond reasonable doubt and the evidence given by the complain- ant was not safe and satisfactory enough for her to reach a decision of guilt. The Court therefore acquitted the appellant from the remaining three charges. When prosecution rests on one witness's testimony, it must be proven to be safe and satisfactory LAW LAW & PLANNING maltatoday Get the critical perspective on politics, culture and society Be the first to enjoy our print newspaper with a subscription Understanding each other from a different perspective: our journalists and columnists will provide you with expert reporting, analysis and commentary. Order now at maltatoday.uberflip.com