Appeals court reject ex-judges' preliminary pleas

In two separate judgments yesterday, the Court of Criminal Appeal dismissed appeals filed by two former judges from judgments on preliminary pleas.

Former Chief Justice Noel Arrigo and former judge Patrick Vella are facing trial in the Criminal Court on charges of corruption, of misuse of influence and of revealing official secrets.

Dr Arrigo lodged an appeal requesting that a judgment of the Criminal Court that had dismissed his preliminary pleas in the case be revoked. The appellate court was presided over by Chief Justice Vincent Degaetano, Mr Justice Giannino Caruana Demajo and Mr Justice David Scicluna.

The Court of Criminal Appeal noted that Dr Arrigo had requested the Criminal Court to take cognisance of a judgment of the Constitutional Court, delivered in October 2003, which had concluded that his fundamental human rights to a fair hearing had been violated. This, the appellate court said, was not a plea in advance of the trial but a simple request for the Criminal Court to take note of the judgment. The Criminal Court had correctly concluded that notice of a plea had to clearly specify the precise aims of a plea and also the article of law in terms of which it had been filed.

The Court of Criminal Appeal added that the Constitutional Court had explicitly stated that the criminal proceedings against the two former judges were not to be halted. But Dr Arrigo was, through his plea, asking the Criminal Court, and then the Court of Criminal Appeal, to halt the proceedings in order to interpret the judgment of the Constitutional Court - something which the judgment of the Constitutional Court had expressly excluded. This clearly exceeded the competence of the Court of Criminal Appeal.

On the other hand, the Court of Criminal Appeal was bound to ensure that the provisions of the Criminal Code were scrupulously observed. The appellate court said it could not extend the interpretation of the law, as Dr Arrigo wished. Even if the court had the power to interpret the Constitutional Court's judgment, it could only conclude that the criminal trial had to proceed and that the trial take place and be decided with the utmost objectivity and impartiality, without outside influences (including statements made by high ranking members of the executive branch of the state which amounted to a violation of the right to a fair hearing).

Dr Arrigo had also pleaded that the bill of indictment against him was null as it did not contain, in substance, the elements of the crimes with which he had been charged. But the Court of Criminal Appeal said that this point of appeal was also unfounded. It sufficed that the bill of indictment indicated, whether explicitly or by implication, these elements, and the bill of indictment was not lacking in this regard.

The appeal lodged by Dr Vella was also dismissed by the Court of Criminal Appeal.

Dr Vella had submitted that the bill of indictment filed against him was null and void as it was accompanied by a note containing the list of witnesses under the heading of Republic of Malta vs Dr Noel Arrigo.

The Court of Criminal Appeal noted that the Attorney General had requested a correction of this note in the sense that the name Noel Arrigo be deleted from this note and replaced by that of Dr Vella and that this request had been upheld by the Criminal Court.

Dr Vella also submitted that there had been an abuse of power in his case and that this had been ignored by the Criminal Court. But the Court of Criminal Appeal said that no abuse of process on the part of the prosecution had resulted in this case. English case law on this matter was clear in that a judge had no responsibility for the institution of prosecutions. Nor did a judge had any power to allow a prosecution to proceed unless such prosecution amounted to an abuse of the judicial process.

In this case it was clear (from the judgment of the Constitutional Court) that when the Prime Minister of the time of the judges' arraignment had called a press conference about their case, he had not chosen his words carefully. There was therefore no issue of an abuse of judicial process.

Referring to Dr Vella's first plea, the Court of Criminal Appeal concurred with the conclusions of the Criminal Court that such an error in the name of the accused was a "cut and paste" mistake. But the appellate court said that the correct legal position was in fact even simpler than this. The note containing the list of witnesses was a legal document which was filed together with the bill of indictment. As such, the note did not even had to include the names of the parties to the trial, namely the Republic of Malta and that of Dr Vella.