A record fine for customs evasion was waived yesterday when an appeal court found a contradiction in terms when jurors reached a not guilty verdict for the importation of cocaine as a criminal offence but then went on to deliver a guilty verdict for the importation of a prohibited substance (cocaine) in breach of customs regulations.
The verdict was handed down by jurors in the trial of Godfrey Ellul in 1995 and he was fined Lm370,024 for the breach of customs regulations. The case hinged on Ellul's defence that he believed he was carrying emeralds and not cocaine, which was found in his possession when he was detained by airport police in March 1991.
Ellul, 52, of St Julian's stood trial in April 1995 and was cleared of all drug-related charges. He was found not guilty, by seven votes to two, of cocaine possession, importation and conspiracy.
But he was fined a record Lm370,024 after the nine jurors found him unanimously guilty of importing prohibited items worth Lm185,012 and going through the 'nothing to declare' customs channel with prohibited or restricted imports.
Two batches of cocaine weighing 994.8 grammes (99 per cent pure) and 971 grammes (78.8 per cent pure) were found in Ellul's bag when he was arrested on arrival from Brazil via London on March 9, 1991. But Ellul, who had been facing a maximum 20 years' jail and Lm50,000 fine, pleaded he believed he had been carrying emeralds and not drugs.
Mr Justice Patrick Vella, Mr Justice Raymond Pace and Mr Justice Joseph R. Micallef in the Court of Criminal Appeal yesterday noted that the line of defence put forward by Ellul had been since suppressed by the 1994 amendments to the Criminal Code. However, his trial had been governed by the Criminal Code as applicable in 1991 when the crime was allegedly committed.
The judges heard how breaches of customs law could only be taken to court with the express leave of the comptroller of customs who sent the police commissioner what was known as the 'letter to prosecute' and which was eventually exhibited in court by the prosecution to justify the initiation of proceedings.
In Ellul's case, the letter to prosecute specified that the restricted or prohibited import was cocaine. But jurors had found Ellul not guilty of importing cocaine under the Criminal Code and the Dangerous Drugs Ordinance, making it clear they had accepted his defence that he had not known he was carrying drugs but thought he was carrying emeralds with the intent of evading duty.
They could then not find him guilty of evading duty on cocaine if they had previously found him not guilty of importing that cocaine, the judges ruled.
The mix-up surrounded the fact that the letter to prosecute was not left open, that is, it was not drafted to cover any eventuality or item because only cocaine was found in Ellul's possession.
The jurors' verdict was unequivocal. Ellul was not guilty of importing cocaine. The judge guiding the jurors could not, then, direct them to find guilt under the Customs Ordinance in the case of the facts proving that Ellul had imported any prohibited or restricted import because the 'letter to prosecute' could not be extended, so to speak, to cover any item subject to duty once cocaine had been excluded.
This means that the jurors had been misdirected by the judge on this point. The eventual verdict was in fact contradictory because the jurors could not find Ellul not guilty of drug importation and then turn around and find him guilty of evading duty on imports which were known to be drugs.
Neither could they have found him guilty of importing emeralds because no emeralds were found in his possession and, as such, the material requirement for the existence of the crime, in this case the emeralds, was missing.
Criminal intent was also missing because it was based on the importation of emeralds and not drugs.
The other point raised by the judges was the monetary evaluation of the emeralds. For the sake of argument, if one conceded that Ellul could be found guilty of the importation of emeralds in breach of the Customs Ordinance, how could one estimate the value of the emeralds Ellul believed he was bringing into Malta when these emeralds never existed? the judges asked.
The prosecution had not exhibited a seizure note and a valuation note for the drugs, let alone the non-existent emeralds. The only figure mentioned in the proceedings was that given arbitrarily by the customs comptroller and not worked out by an expert. Once the matter of value was also reserved for jurors, the court ruled that there was no basis for jurors to work out a figure.
The judges remarked that it was worth noting that jurors originally handed down their verdict without specifying the value of the imports and had declared they did not feel competent to set a sum.
But the fine could only be worked out on the basis of the value of the imports, (twice value plus duty), so the jurors were requested to come up with a figure, which they eventually did. They accepted the Lm185,012 as the evaluation of the worth of the cocaine as put down in the 'letter to prosecute' by the customs comptroller.
There were problems with the registration of the verdict, in fact, and the prosecutor himself had, in fact, raised the point that the verdict was contradictory and should not be registered.
The judges ruled that they agreed that the verdict was contradictory and moved to alter it to reflect the absence of two of the required elements for the subsistence of the crime, the material element and the formal element.
Ellul was acquitted of all the charges.
Dr Joseph Brincat was counsel to Ellul.