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NEWS 7 maltatoday | WEDNESDAY • 22 DECEMBER 2021 MATTHEW AGIUS STATE Advocate Chris Soler has filed an appeal after being fined €500 court earlier this month, having been found in contempt of court on the grounds that his office filed an appeal to a decree that he had renounced the right to. Mr Justice Lawrence Mintoff had imposed the fine on 16 December, in a strongly worded decree which denounced the fact that the State Ad- vocate's office had filed the appeal on behalf of the Police Commissioner against an order to exhibit data ex- tracted from former OPM Chief of Staff Keith Schembri's mobile phone, despite giving the court assurances that it would not. In an appeal application filed yes- terday, the State Advocate said he felt aggrieved by the condemnation, say- ing it appeared to have been made in the heat of the moment, was unjust in his regard and had no basis in law. Soler argued that the facts of the case did not fall within the parame- ters of the law contemplating con- tempt of court in faciem curiae, and so the court ought to have referred the issue to the Registrar of Courts, in order for separate proceedings to be started. This meant the decision was irregular and null, it was argued. The State Advocate had been exer- cising a right arising from the law by filing an appeal on behalf of his cli- ent, the Commissioner of Police, he said. "It should not be the case that in our juridical system a lawyer be con- demned to pay for the instructions given by his client, as otherwise the legal profession per se would erode until it collapsed." It was evident that the judge had not sufficiently appreciated the sit- uation of the State Advocate as only the lawyer and mandatary of the cli- ent – a relationship which does not fall under juridical purview, he said. "It is unheard of that a lawyer be con- demned for contempt of court if his client changes his mind about wheth- er or not to appeal a decree," argued Soler in his appeal application. The issue of whether the party had renounced to its right of appeal be- forehand and whether this right can be taken to have been comprehen- sively renounced to, on the basis of a unilateral declaration, are separate issues from contempt, he said. "If an- ything, these would be decided by a court equipped to decide that appeal if the issue is raised in that sense." Criminal punishment imposed gratuitously It was therefore submitted that the conviction for contempt of court, which is punishable by a fine, but which can be converted to impris- onment under the Criminal Code, was missing a legal foundation. This constituted a violation of the consti- tutional law principle of nulla poena sine lege (no punishment without a legal basis), argued the State Advo- cate, "in that it has the characteristics of a criminal punishment imposed gratuitously." Soler also pointed out that he could not inform the judge that the appeal had been filed because he had not drafted the appeal application, nor had he signed it. Lawyers are also not obliged to inform the court when an appeal had been filed from one of its decrees, argued the lawyer, arguing that this was an internal adminis- trative function of the Registrar of Courts. Yorgen Fenech's three lawyers had not informed the court of the appeal either, despite having known about it for over two weeks, Soler pointed out, observing that none of them had been found in contempt of court, de- spite this. No intent to disrespect the judge The State Advocate had never in- tended to give the impression of disrespect towards the court or the judge, Soler said, adding that he had always acted as an official of the court and a mandatary of his client and that the First Court should have appreciated this. "The undersigned has always exercised his function in good faith, loyally and correctly and it is, with all due respect, incorrect of the court to allow the other party to dictate a verbal note after a decree of contempt of court, for no legal reason but apparently only for his personal satisfaction and for the gallery, where he attributed suspicious and untrust- worthy actions to the undersigned…" In his appeal application, the State Advocate also pointed out that al- though he had, for several reasons, not appeared for the 16 December sitting, the defendants had been rep- resented by lawyers Maurizio Cordi- na and Miguel Degabriele from the Office of the State Advocate. Soler explained that at the time, he had been covering urgent sittings in- stead of other lawyers in the Office who had contracted Covid and who were in quarantine. It was common practice for lawyers who cannot ap- pear in sittings to be replaced by oth- er lawyers from the same office, Sol- er argued, highlighting that this had never been interpreted as contempt of court. The decision finding the State Ad- vocate in contempt of court had been based on an incorrect underlying as- sumption, he argued, as he had not validly renounced to his right of ap- peal. 'I did not waste the court's time' He added that the decision had al- so been made on the basis of a de- cree which had been made beyond the scope of the court's powers. This was because he was not allowed to explain himself by the court and warned, whilst dictating a note on be- half of his clients, that the fine would be doubled if he continued. "It was at that stage that the undersigned law- yer realised that in the prevailing at- mosphere, he could not explain him- self before the First Court and had no choice but to remain silent." Soler denied the accusation that he had wasted the court's time, say- ing he had never done this and had always appeared for sitting on time, performed his duties within the time- frames provided and had never asked for an adjournment. "Unfortunately, the same cannot be said for the other side." He insisted that he had always been "ultra-careful" to ensure he acted in an ethically correct manner, remind- ing the court that he had not signed the appeal application, saying that it was a shame that he was not allowed to explain this to the First Court, which had decreed on a mistaken presumption. State Advocate appeals against contempt of court decree in Keith Schembri phone data case A 34-year-old man from Cospicua has been cleared of carrying out the armed robbery of a gaming parlour in the harbour town in 2015. Marflene Cricchiola was declared not guilty of holding up the BestPlay outlet at gunpoint and stealing between €5,000 and €6,000 from it. The absence of fingerprint evidence, together with the fact that the robber had been disguised and that a search of the accused's car did not return any evidence was used to great effect by Cricchiola's de- fence counsel, lawyers Franco Debono and Marion Camilleri, who argued that the fact that the accused was of a similar stature as the robber did not mean that they were the same person. The court had heard police officers testify to hav- ing received a call whilst on a patrol in Cospicua, reporting a hold up at the outlet. At the scene, the manager described the robber as being of medium stature, well-built and wearing a blue hoodie. He had told police that he suspected the owner of a red Mazda CRX Del Sol to be in- volved as he had seen it in the vicinity. Whilst patrolling the area, the police spotted the car in question and saw the accsued getting out of it, wearing a white T-shirt and a blue tracksuit bot- toms. When stopped by the police, he had asked the of- ficers whether it was about the hold up, the court was told. An Best Play employee also testified to being robbed at gunpoint by a masked man who demand- ed cash. He had complied and then pressed his panic but- ton, with the police arriving very soon after. He told the court that he had never given a description of the robber to the police but had heard some officers mentioning names which sounded like Marflene. He told them that he knew someone by that name and that he would occasionally go gamble at the shop. He mentioned that this person also drove a red Del Sol. He did not recognise the accsued in the court- room, but said he was of a similar stature. CCTV and fingerprint evidence were inconclusive. The court said that the only evidence that could tie the accused to the crime was his stature and some scratches on his arm. The magistrate noted that none of the witnesses had recognised Cricchi- ola and that no fingerprints were identified at the scene, despite the fact that the robber was not wear- ing gloves. The fact that he was arrested shortly after the robbery yet was not found to be wearing the same clothes as the robber also counted in his favour. The court also noted that nothing incriminating had been found in his car either and that the Best Play employee could not recognise the accused as the robber, despite knowing him to be an occasion- al client. Cricchiola was cleared of the charges. Lawyers Franco Debono and Marion Camill- eri were defence counsel. Superintendent Josric Mifsud and inspector Saviour Baldacchino prose- cuted. Court clears man of 2015 Cospicua hold up State Advocate Chris Soler