Here's the court decree ordering the arraignment of Chris Said for perjury
QORTI KRIMINALI
IMHALLEF
ONOR. DR. MICHAEL MALLIA B.A., LL.D.
Fl-Atti tar-Rikors
Anthony Xuereb
Vs
Il-Kummissarju tal-Pulizija
Illum 23 ta’ Settembru, 2010
DIGRIET
Il-Qorti,
Rat ir-rikors ipprezentat mir-rikorrent fil-21 t’Awissu, 2010;
Rat ir-risposta tal-Avukat Generali;
Semghet it-trattazzjoni tal-Avukat difensur kif ukoll dak tal-Avukat Generali;
Ikkunsidrat :
Illi din il-procedura giet istitwita ai termini tal-artikolu 541 tal-Kodici Kriminali, fejn ir-rikorrent talab illi jittiehdu proceduri kriminali kontra l-Avukat Chris Said talli xehed falz quddiem Qorti kompetenti fit-termini tal-artikolu 108 tal-Kodici Kriminali. Din l-allegazzjoni saret abbazi ta’ kwerela datata 9 ta’ Mejju, 2010 li kienet annessa mar-rikors promatur ipprezentat quddiem il-Qorti tal-Magistrati (Ghawdex).
B’digriet tal-20 t’Awissu, 2010, il-Qorti tal-Magistrati cahdet it-talba tar-rikorrent sabiex tordna lill-Kummissarju tal-Pulizija jistitwixxi proceduri kriminali kontra l-Avukat Dr. Said talli ta xhieda falza f’kawza civili fl-ismijiet “Helen Malagan vs Anthony Xuereb” (rikors numru 10/2008).
Ir-rikorrent hassu aggravat minn dan id-digriet u permezz tar-rikors fuq imsemmi tal-31 t’Awissu, 2010 talab lil din il-Qorti illi thassar u tirrevoka d-digriet tal-Qorti tal-Magistrati u minflok tilqa’ t-talba tieghu u tordna lill-Kummissarju tal-Pulizija jistitwixxi proceduri legali kontra l-kwerelat Dr. Chris Said abbazi tal-kwerela msemmija.
Ikkunsidrat :
L-artikolu 541 fost affarijiet ohra jghid : “…… u jekk il-Qorti, wara li, meta jinhtieg, tisma’ l-provi li jgib ir-rikorrent, u l-Kummissarju tal-Pulizija, ssib li prima facie hemm lok ghad-denunzja, rapport jew kwerela ghandha tilqa’ t-talba ……”
Ir-rikorrent argumenta illi l-Qorti tal-Magistrati marret oltre l-grad ta’ prima facie meta dahlet fl-elementi kostitwivvi tar-reat, ikkunsidrathom u waslet ghall-konkluzzjoni illi dak allegat mir-rikorrent ma kienx jammonta ghar-reat imsemmi. Argumenta wkoll illi peress illi l-ligi tesigi grad ta’ prima facie, l-provi li r-rikorrent gab f’dak l-istadju kellhom ilahqu biss sa dak il-grad peress li l-kumplament tal-provi kellhom jinstemghu minn Qorti ohra li tikkonsidra l-meritu, haga li ma kienx il-kompitu tal-Ewwel Qorti.
Ikkunsidrat :
Illi huwa minnu illi l-Ewwel Qorti kkunsidrat l-elementi kostitwivvi tar-reat fil-kuntest tal-artikolu 108 tal-Kodici Kriminali u semghet ix-xiehda tas-Supratendent Martin Sammut, rat l-istqarrija tal-kwerelat Dr. Chris Said kif ukoll semghet ix-xiehda tar-rikorrent Anthony Xuereb. Fost affarijiet ohra ddikjarat
“ fil-fehma tal-Qorti l-Avukat Said ma kienx korrett meta qal li fis-seduta li saret filghaxija : “…..the Court decided that the baby had to be returned to my client ……” (fol. 49).
Fil-fehma tar-rikorrent din ir-rizultanza kellha tkun bizzejjed biex il-Qorti tordna illi jittiehdu proceduri.
Ikkunsidrat :
Fil-kors tat-trattazzjoni saru diversi sottomissjonijiet mill-partijiet dwar it-tifsira tal-prova prima facie w jidher illi l-aktar hsieb komuni huwa dak illi din il-prova titwassal sal-grad tal-probabilita’ kif normalment tezigi kawza civili.
Din il-Qorti pero’ jidhrilha illi f’dan il-kaz il-grad ta’ prova rikjest huwa anqas minn dak ta’ probabilita’ w taghmel referenza ghall-awtur Blackstone (at D6.21) meta jghid “thus, the standard of proof the prosecution are now required to satisfy at committal proceedings is very low, lower than that resting on plaintiff in civil proceedings. It is commonly expressed as establishing a prima facie case or case to answer.”
Ghad li hawnhekk Blackstone qed jirreferi ghall-“committal proceedings” u cioe’ l-Istruttorja, l-anologija ghandha tapplika ghal dan il-kaz.
Fil-kaz ta’ kumpilazzjoni, l-Magistrat ma joqghodx jidhol fil-meritu tax-xhieda prodotta w jekk iwasslux ghall-htija jew le, lanqas sal-grad tal-probabbli imma biss jara jekk jezistux ragunijiet ( fit-test Ingliz “grounds”) sabiex jibghat l-atti lill-Avukat Generali ghall-konsiderazzjoni ulterjuri tieghu.
Hija importanti illi f’dan il-kaz il-Qorti ma tikkunsidrax ix-xhieda (evidence) izda biss tara jekk jezistux ragunijiet (the grounds) li huwa differenti minn kunsiderazzjoni tax-xhieda w dawn ir-ragunijiet huwa f’livell aktar baxx minn dak tal-probabbli.
Naturalment ma nistghux immorru l-estrem l-iehor u naslu biex nallokaw il-grad ta’ prima facie ghal dak illi huwa possibbli jew suspettuz. Fil-fatt f’R. Vs Codan Qorti Kanadiza meta kienet qed tiddiskuti l-vera tifsira tal-kliem prima facie qalet “the mere possibility or suspicion that an accused is guilty is not enough to warrant is committal for trial. The crown, however, need only show in the preliminary enquiry that the accused is probably guilty and any doubt in this respect should be resolved in favour of committal”.
Din is-sentenza tidher illi qed tezigi grad ta’ prova ftit ghola minn dak illi jghallem il-Blackstone, fejn, skond hu, l-prima facie hija “lower than that resting on applaintiff in civil proceedings”.
Il-Qrati Maltin pero’ donnhom sabu t-triq tan-nofs u meta jikkonsidraw provi prima facie, haga komuni hafna fil-kamp kriminali, ghal dak li hu l-Istruttorja, jekk il-Magistrat jidhirlu illi provi migjuba quddiemu jisthoqqilhom aktar investigazzjoni, allura f’dak il-kaz huwa bizzejjed sabiex il-grad ta’ prima facie jigi milhuq u l-kawza tkun tista’ titkompla.
Ghalhekk meta l-Qorti tal-Magistrati rrizultalha li fil-fehma taghha l-Avukat Said ma kienx korrett meta xehed f’seduta quddiem Qorti kompetenti allura f’dan il-kaz kellha tieqaf hemmhekk peress illi dan huwa bizzejjed sabiex il-kaz jigi investigat aktar fil-fond, bil-partijiet moghtija l-opportunita’ illi jressqu l-provi kollha taghhom, haga illi fil-proceduri quddiem il-Qorti tal-Magistrati dan ma nghatax u l-qorti qabdet u ddecidiet il-meritu bil-kunsiderazzjoni tal-elementi kostitwivvi tar-reat minghajr ma tat l-opportunita’ fuq imsemmija.
Ghalhekk din il-Qorti tiddeciedi illi tilqa’ t-talba tar-rikorrent, thassar u tirrevoka d-digriet tal-Qorti tal-Magistrati tal-20 t’Awissu, 2010 u tordna lill-Kummissarju tal-Pulizija sabiex imexxi l-procedura mehtiega skond il-kwerela tad-9 ta’ Mejju, 2010.
Tordna wkoll illi dan id-digriet jigi notifikat lill-Kummissarju tal-Pulizija permezz tar-Registratur tal-Qorti.
(ft) Michael Mallia
Imhallef
Christopher Camilleri
Dep. Registratur
19 Comments Comment
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This is the nadir of contemporary politics. Dr Caruana should be ashamed of herself.
She is either very vindictive or very immature. Whatever the case, she has behaved like a kamikaze to my understanding.
People will judge her harshly on this faux pas.
I think decent people expect Joseph Muscat to disassociate himself from Justyne Caruana’s ruthlessness.
This is fumus persecutionis.
The name Caruana does not appear in that decree. Are you sure you are reading the same thing?
[Daphne – Why would it?]
Asak Weber, not me.
Huh…. because she isn’t involved at all…
http://www.timesofmalta.com/articles/view/20100924/local/justyne-caruana-says-she-was-not-involved-in-procedures-which-led-to-chris-saids-resignation
[Daphne – Guess it took her the best part of a day and night to work out how to frame that. Half truths are worse than lies. Shame we can’t get her for perjury because she didn’t take an oath before sending out that statement to the press.]
Because, dear chavsRus, the lawyer is not mentioned in the decree given by the Court! It is the client who is mentioned!
This is basic knowledge.
It is also why Daphne replied, “Why would it?” Meaning: why should the lawyer’s name appear?
Posting a comment on timesofmalta.com, Dr Alex Sciberras has tried to defend Dr Caruana by saying that lawyers have to do their job, or something to that effect.
I think I cannot quite agree with Dr Sciberras.
Lawyers may refuse to handle certain cases they find morally unacceptable, or to hand over hot potatoes to colleagues. Dr Jose’ Herrera loves doing just that with very hot cases (e.g. cases in which 9-year jail sentences are handed down for drug-trafficking) – passing them to colleagues even on the other side of the political spectrum.
But that is another story.
By taking up this case, Dr Caruana has shown she has no moral sense. This is not a question of ethics, but of morality. It would have been ethics, had Dr Caruana considered it improper to sue a colleague.
Objectively speaking, however, we have to admit she did nothing unethical. Lawyers too may be sued. And those suing them have a right to be assisted by legal counsel.
But what Dr Caruana did betrays a complete lack of moral sensibility. She must have allowed her role in the political fray to overcome any sense of what is right and what is wrong.
Is it right to attempt the destruction of a man’s career – political and professional – on the flimsiest of pretexts, on a strictum ius interpretation of the law?
There are two ways of interpreting the law – the “conservative” and the “progressive.”
The former means denuding the written word of the spirit the legislator wanted to breathe into it; the latter means that the just interpretation is one which seeks to find the legislator’s real will even if not expressly found in the words used.
In other words, the progressive method of interpreting the law tries to unfetter the law from the constraints of language, seeking a rule which is on a higher level and possibly closer to the legislator’s intention.
Despite the Labour Party’s insistence on its being progressive and moderate (a contradiction in terms, but that’s beyond the scope of my comment), a prominent exponent of the same party adheres to the conservative method of interpretation, which wittingly stops at the mere language without attempting to unravel the real intention of the legislator.
I say all this because I ask: did the legislator really intend to castigate someone whose inexactitude while giving testimony has no bearing on the outcome of the case?
Or was the intention of the legislator to punish those who attempt to derail the judicial process?
I am sure that my rhetoric is self-evident. It is patently clear that the legislator wanted to punish the latter and ignore the former.
Still, this self-evident “progressive” interpretation of the law seems not to have crossed the mind of the legally conservative Dr Caruana.
Instead, she seems to have kept to a strictum ius interpretation, possibly feeling exonerated from any guilt by a reasoning similar, if not identical, to the one put forward by Dr Sciberras.
This trait in Dr Caruana’s character is worrisome. If her interpretation of fact situations is so narrow, one can only worry contemplating that one day she might be in a position of executive power, where she would take decisions affecting many people.
At present, her decisions may be overturned by the Court. To be sure, even if she were to assume executive positions, her decisions would still be subject to judicial review. But the important difference is that in Dr Said’s case the sole person affected is a high-profile politician.
In the hypothetical case of her assuming political office, the persons affected would be more numerous and much more low-profile. It would mean long years in court, with hardly any press coverage, as the press would not really understand what is going on.
One starts to ask whether politicians need some sort of training. I am not advocating Plato’s ideal that all politicians should be philosophers. But I am advocating the idea that parties should screen their candidates better, and instead of fielding individuals who serve only as vote-catchers, they should start fielding individuals who have an adequate preparation in political science in order to play a constructive role once elected.
By political science, I mean not only the legal and economic aspects of politics, but also philosophy (particularly moral philosophy) and other liberal arts. A degree in law does not necessarily mean that the holder has a wide enough culture to be a representative of the people.
I think that Dr Caruana made a terrible faux pas. I expect the media to analyse and dissect it, drawing important lessons from it.
Dr Caruana should apologise. More importantly, however, she needs to examine her conscience. She needs to find an answer to the following:
(i) why didn’t she deem it proper to hand over the case to someone who would not be prone to the charge of political motivation?
(ii) why didn’t she deem it immoral to detonate a metaphorical bomb on such a flimsy pretext?
(iii) why didn’t she deem it unacceptable to persecute someone when there is no real gain in sight?
I am aware that (iii) might seem immoral. In fact, it is. But at least it would be Machiavellian, that is immoral but conducive to gain.
In the case at issue, I cannot understand what her client will gain if Dr Said is found guilty. I must therefore conclude that this is not Machiavellian thinking, but muddled childish vindictiveness.
I must therefore further conclude that Dr Caruana has done this not to obtain justice, and a morally feasible and defensible gain, but merely to give vent to God knows what pent-up emotions.
Silly – Justyne Caruana has not done anything except carry our her client’s instructions.
Another damp squib.
[Daphne – I couldn’t have made a better observation about her myself. Well done.]
A very wide and dangerous interpretation and application of the law. Should not the correctness of Dr Said’s statement be seen in the context of the alleged reported accusation of perjury even at the prima facie level?
Cannot this judgment lead to abuse of the challenging system?
I’m sorry Daphne, this is only obliquely related to the case, but I could help noticing this message on The Times blog:
Olvin Vella(7 hours, 16 minutes ago)The PN said his decision was based on the highest ethical standards based on political correctness and seriousness. I Agree, but why didn’t others who were implicated in other more serious scandals and allegations where not invited to do the same?!!!
[Daphne – Is this Olvin Vella who works for the Labour media? ‘Why didn’t others who were implicated in other more serious scandals and allegations were not invited to do the same?’ Which ones? Look at the fuss they made when the mayor of Sliema’s resignation was demanded.]
The first decree would be even more interesting.
New Emblems. Old Labour.
A farce – pitiful, shameful, and distressing to know that our judiciary can be so childish.
There is a difference between “xhieda falza ” and xhiehda mhux korretta”. While the former denotes malice, the latter does not.
Why didn’t the judge make this simple assessment?
Maybe he did.
This is the latest episode of the Maltese Courts’ soap opera.
The case should be heard this weekend.
When the very fabric of the state is threatened, the national interest demands that matters are sorted out very fast.
The reasons are compelling. It is the duty of the head of the executive to ascertain that this principle is upheld.
The appeal judge applied the law correctly. The court before which the challenge is made against the police commissioner not against alleged criminal.
It is a check and balance mechanism over police powers and the issue is whether, on a first look (prima facie) there are indications that a prosecution should take place.
The judge correctly said that the court of challenge is not and cannot decide the guilt or not of the person still to be accused.
I am no legal beagle and I too wish to express my solidarity to Dr Said, who I have never met, for being unfortunate enough to trip in a bureaucratic pothole.
However, after reading Justice Mallia’s decision, I understand it that he had no choice other than to decide as he did because of a procedural error made by the Gozo magistrate.
Apparently, once the magistrate decided that there was a ‘prima facie’ case, his duty was to pass this on to the Commissioner of Police and not decide on its merit himself.
If the Gozo magistrate was right or not in deciding that there was a ‘prima facie’ case of perjury, when it seems so clear that it’s a mistake caused by a faulty memory, is the question.
I am all for transparency and the law being equal for everyone but so often, as the saying goes, ‘the law is an ass’ and innocent people get hurt even when justice is (hopefully) done in the end.
Daphne, do you know the judge in question? I cannot understand why previously the court denied the police to investigate and now all of a sudden it granted access to do so.
http://www.akkuza.com/2010/09/24/the-leap-of-faith/
well said.
[Daphne – Yes, well done, Jacques. I would have written exactly the same thing myself had I not been out all day today, at a party where Joseph Muscat’s medical condition manifested itself once more: he sent Toni Abela in his stead, when the prime minister took time out after yesterday’s stressful events and was not only there, but there on time.]
“The custody battle is still at appeals stage. If Chris Said admits the mistake, my client would not be interested in the outcome of this perjury case. As I told you before, this is not a personal vendetta against Dr Said but just part of my client’s efforts to win custody of his son,” he said.” The Times, today.
Isn’ this a form of blackmail? Why is it allowed in court procedures?