Issue link: https://maltatoday.uberflip.com/i/783519
3 maltatoday, WEDNESDAY, 8 FEBRUARY 2017 News Farrugia Sacco's attributes history' From left: retired judge Lino Farrugia Sacco, parliamentary secretary Deborah Schembri and consultant Robert Musumeci MAT THEW AGIUS THREE men from Gozo have been cleared of an alleged sexual assault and rape of a drunken woman that took place nine years ago, after fo- rensic evidence showed the sexual encounter to have been consensual. The men, Paul Xerri, 46 of Xagħra, Mark Cutajar, 31 from Nadur and Aaron Camilleri, 28 also from Nadur were fi- nally declared not guilty of participating in the alleged sex attack on a British woman in Qala. Cutajar alone was accused of rape, whilst Xerri and Camill- eri were accused of complicity amongst other charges. The court had heard how the police were called by the boyfriend of one of the vic- tim's friends, after he found the woman screaming outside their front door. Magistrate Joe Mifsud pulled no punches in his criticism of the way the police had investi- gated and prosecuted the case, highlighting the fact that the prosecuting officer had not presented any evidence dur- ing compilation proceedings and pointing out that between 2011 and 2016 not a single wit- ness had testified in court. A court-appointed medico- forensic expert had reported that he had only seen a few, light scratches on the girl 's skin and none of the expected external or internal bruising that occurs with physical vio- lence or rape. The expert had also reported that the girl appeared drunk and had changed the ver- sion she had told him several times, identif ying one accused and then another as the per- son who had raped her. This was corroborated by the doc- tor who had examined the girl in the casualty department. The girl herself had testified to having been drunk at the time, noted the court. "Not drunk that I couldn't stand up, no. I was just happy drunk, in a giggly mood, you know, that sort of drunk. I wasn't like paralytic drunk," she had said. She said her memory had "gone blank " as to the ensuing sexual encounter, although she claimed to have remem- bered pushing AC away. The court remarked the ac- cused men had spent the past nine years "under a guillotine" and lambasted the investiga- tion, saying the official con- ducting it had a duty towards the victims, the accused but also to society. The costs of the court case amounted to €6,056 which the state would have to pay as guilt had not been established, the court noted. It observed that the men ac- cused had been consistent in their accounts, from the time of their arrest to when they had testified in court. The memories of the alleged vic- tim, by comparison, had been inconsistent and vague. The magistrate then said that the court was satisfied that the girl had enticed the men into group sex and had at no time demonstrated any contrary intention. She had, in fact, chosen to remain there after arguing with a female companion who wanted to leave, he said. The court pointed out that the woman was not a minor and could have stopped the ac- cused if she hadn't been happy with the direction the night was taking. At no point did the evidence show that the woman had screamed or called for help. Rather, the court argued, the woman "knew the accused and had been drinking with them a short time before." The court said it was bound to decide on the basis of the evidence before it, remark- ing that it was mystified as to how the men could have been charged with these offences on the basis of the evidence. Holding that "not a shred of evidence that a rape had even taken place," the court declared the men innocent of the charges. Law yers Stephen Tonna Lowell, Kathleen Grima and Deborah Mercieca appeared for the defendants. Police Inspector Josric Mifsud prosecuted. Three men cleared of Gozo gang rape, court holds encounter was consensual Court case filed by Prime Minister halts Gaffarena damages claim A court has postponed the hear- ing of a claim for damages filed by Mark and Josielle Gaffarena against the Commissioner of Lands because the outcome of another case filed by the authori- ties against the Gaffarenas could have an impact on any ruling de- livered in that case. The Gaffarenas had informed the court that they had acquired a number of properties, including a dilapidated building in Baħar iċ-Ċagħaq by means of a deed of exchange which was entered into with the Commissioner in 2015. Although the property was de- scribed as being uninhabited in the deed, it turned out to be oc- cupied by third parties. This led the Gaffarenas to claim a breach of their right to enjoyment of their property and call upon the court to order the Commissioner of Lands to pay damages. The Commissioner, in his reply, had argued that the court should order a stay of proceedings in this case until a final decision is issued in the case filed by the Prime Minister against Gaffa- rena, in which he requested the court to declare null the deed through which the Gaffarenas had acquired several properties, including the Baħar iċ-Ċagħaq dwelling in question. If decided in favour of the Prime Minister and Commissioner of Lands, ownership of the prop- erty in question would revert to the government and make the payment of damages unneces- sary. The Gaffarenas would have no legal rights to the properties, nor would they have an action for damages. Mr Justice Silvio Meli pointed out that the staying of an action was a remedy which applied in the circumstances and upheld the request until a final judge- ment is made in the case filed by the Prime Minister and the Com- missioner of Lands. Marc Gaffarena