Objections to part of forensic expert's testimony turned down

A judge in a murder trial turned down objections made by the defence to part of the testimony given by a forensic odontologist, who yesterday told jurors that marks found on the arms of the accused matched two of the victim's teeth.

However, the judge accepted as evidence a new document presented by the defence which, they claimed, showed that the dental expert had previously matched a different tooth belonging to the victim to one of the marks.

Defence lawyers in the trial of a man charged with the murder of an 82-year-old woman first argued that forensic odontologist Prof. Hector Galea had gone beyond his brief because he had only been appointed to make casts of the victim's mouth and of the marks on the accused, and not to compare them.

But after the judge heard submissions made by defence lawyers and prosecutor, he ruled that Prof. Galea should testify about the comparisons.

Prof. Galea was testifying before Mr Justice Joseph Galea Debono in the trial by jury of Mario Pollacco, 38, of Msida, who is pleading not guilty to Rose Mary Schembri's wilful homicide in her house on June 3, 1998.

Pollacco is also accused of the theft of over Lm1,000 worth of cash and precious objects, qualified with violence.

Prof. Galea explained that he was appointed by the inquiring magistrate to examine Schembri's mouth, marks on Pollacco's body and the mouth of Pollacco's dog.

"After being appointed by the inquiring magistrate, I examined several marks on Mario Pollacco's neck and right arm and compared them to a cast of (Rose Mary) Schembri's teeth and also to a cast of Pollacco's dog's teeth, since he claimed that the marks were caused by his dog,"

"Each tooth has its own individual details which are carved out through time and usage. The details found on two marks on Pollacco's arm perfectly matched the details of two of Schembri's canines... The bite marks were definitely not caused by a dog."

At this point Pollacco's lawyer, Dr John Attard Montalto, objected and rose to make a legal point. The jurors and the witness were asked to leave the court room.

The lawyer said Prof. Galea had gone beyond his brief because according to court documents he was only appointed to take casts of Schembri's mouth, the mouth of Pollacco's dog and of marks on Pollacco's body.

"The magistrate never appointed him to compare the casts, as she appointed (computer expert) Martin Bajada to do. Comparing the cast did not fall within his competence and he can only testify about what he was appointed to do," the lawyer argued.

Senior Counsel to the Republic, Dr Mark Said, prosecuting, said that although the court documents did not contain a direct ruling appointing Prof. Galea to compare the casts, there was no doubt that this was a lapsus.

He said that, according to the law, a court's ruling did not necessarily have to be a written one. "This means, both logically and legally, that a ruling in which a court appoints an expert does not have to be written but may be transmitted by word of mouth.

"Besides, there are court documents that show that the professor had been asked to compare the dog's teeth to the marks on Pollacco's arm," he said.

Dr Attard Montalto said this was a procedural flaw of an important nature. "We have been taught that anything that is not in the documents of the court proceedings does not exist. A court ruling must be recorded in the documents to be valid. This is a question of public order."

After hearing the submissions made by both parties, Mr Justice Galea Debono noted that the defence lawyers had already raised this objection before another court as a preliminary exception. That court had turned down their objection after noting that the magistrate did not have to spell out an expert's duties. His duties lay within his discretion.

The judge also noted that an appeal court had then confirmed the first court's ruling.

Mr Justice Galea Debono turned down the defence's objection and ruled that Prof. Galea should testify about the comparisons he made. Prof. Galea and the jurors were then called back into the court room.

The witness testified that Schembri had four teeth in all - three canines and a molar. Two of the canines on the right side of her mouth had a very particular shape due to dental disease and time.

"I examined several marks on Pollacco's right arm and neck on June 7, 1998. Lesions on his right arm in the wrist area were about three centimetres apart and were surrounded by swelling and small skin stretch-marks. These are properties of a bite mark.

"It is not possible that these lesions were made by a dog's teeth. These marks were made by teeth that did not have adjacent teeth. I found no missing teeth in the dog's mouth," he said.

He said that two of the marks found on Pollacco's arm were human bite marks and matched with two of Schembri's canines.

Prof. Galea showed the various casts to the jurors and demonstrated how the cast of two of Pollacco's lesions matched the cast of two of Schembri's teeth. He also said that while he was conducting his comparisons he was being monitored by another expert.

Prof. Galea assured the jurors that the method of comparison he used was very reliable.

Cross-examining him, the defence lawyers asked Prof. Galea how come his "reliable method" had resulted in him finding a match with one of Schembri's canines, when in a document they recently got hold of he had come to a different conclusion.

The document showed that he had previously matched a different tooth belonging to Schembri with the same mark on Pollacco's arm.

The lawyers explained that they received the document from a confidential informant eight days before the trial started.

The prosecution objected, saying that the document was not legally admissable as evidence since it lacked the element of authenticity.

The prosecution also claimed that the way in which the document had been presented in court, to the prosecution's surprise, went against the administration of justice.

The defence lawyers explained that they were willing to swear under oath that the document was only given to them recently.

The witness was asked to leave the room and the lawyers took the witness stand in turn.

They explained that the document was given to Dr Michael Scriha some eight days before the trial started and Dr Attard Montaldo had only got to know about it last Sunday.

After hearing the lawyers' arguments the judge accepted the document as evidence but reserved the right to instruct jurors to give it the relevance, weight and importance it deserved.

He also ruled that the document was only to be used by the defence lawyers as a tool to try to discredit the professor's credibility.

Prof. Galea was then called back to the witness stand and the document shown to him. He recognised parts of it as being his but said that it was by no means a final document.

"This document never left my hands in this form... in my office I keep my forensic documents unlocked. It could have easily been a typing error, but I can assure you that I am sure about the final result that I have presented to you today."

Earlier, PC Charles Pace said he was appointed to take photographs of a search that was conducted on June 5, 1998. The photographs were projected onto a screen in court.

They showed bills of money which the constable explained were found in two separate pouches and rolls of money found in a tin of skimmed milk found in a drawer in Schembri's bedroom.

Answering a question in cross-examination, the constable said that the search squad did not have any difficulties in finding the money.

Superintendents Paul Debattista and Bertu Mula took the witness stand in turn and gave an overview of their role in the investigations. Supt. Debattista explained how he noticed marks on Pollacco's arms while he was questioning him. Casts of these marks were taken and compared with a cast of Schembri's teeth.

"During questioning Pollacco denied his involvement in the old woman's murder even after I told him that the marks found on his body were compared to, and matched, the cast of Schembri's teeth," Supt. Debattista said.

Supt. Mula said that he was not aware that a red fingerprint had been found on the door of Schembri's house. He explained that even if he had known about it, the forensic officers and experts were not under his command.

The trial continues this morning.

Dr Michael Sciriha, Dr John Attard Montalto and Dr Philip Galea Farrugia are appearing for Pollacco.

Senior Counsel to the Republic, Dr Mark Said, is prosecuting.