The judiciary enjoys full discretion when appointing court experts, but an Appeals Court judgment on one such specialist who had a criminal record should serve as “sufficient guidance”, according to the Chief Justice.
At the same time, legal practitioners said that following last week’s Court of Appeal’s pronouncement they expected judges and magistrates to stop using the services of Martin Bajada.
The Court of Appeal upheld a request by three individuals who contested Dr Bajada’s report as a calligraphy expert after learning that he had a criminal record involving the falsification of documents.
The three judges deciding the case, including Chief Justice Silvio Camilleri, said it was not only in the interest of those making the claim but also “in the general interest of the administration of justice” that Dr Bajada’s ‘expert’ report be removed from the records of the case and not given weight.
Asked whether, following the judgment, he would be issuing guidelines to the members of the Judiciary not to appoint Dr Bajada as a court expert, the Chief Justice said judges and magistrates now had sufficient guidance.
“The appointment of court experts is by law left to the discretion of the judge or magistrate concerned… The Court of Appeal’s judgment is, of itself, sufficient guidance to the members of the judiciary on the matter at issue,” he said.
When asked about the ramifications of the judgment on other cases in which Dr Bajada is involved, the dean of the Faculty of Law, Kevin Aquilina, insisted the person could no longer be engaged as court expert.
Admitting that he did not see any problems with regard to past cases because these were now res judicata, Prof. Aquilina feared there could be problems with regard to ongoing cases.
“With regard to pending cases in which the court expert is involved, there is no impediment upon any party to a case to challenge his appointment and have him removed from office. Nor is there any impediment upon the courts themselves to remove him ex officio in the light of the Court of Appeal’s authoritative pronouncement,” he pointed out.
“I think the courts are now duty bound to follow this course of action. As a corollary to this, I expect that no court in Malta will, in the future, seek his services,” Prof. Aquilina said.
Human rights lawyer Giovanni Bonello, who, in 2013, proposed to the government a radical change in the way court experts are appointed, described the court’s decision as having “persuasive power”.
Dr Bonello, a former judge of the European Court of Human Rights, told the Times of Malta: “Though other courts are not legally bound to follow it, its ‘persuasive power’ may nonetheless exercise a strong legal influence on other judicial authorities when they come to decide similar issues.”
A change in the way court experts are appointed has been on the cards for many years but the system remains unchanged.
The Chamber of Advocates recently called the system adopted by members of the judiciary as a “racket”, adding that what mattered was how friendly experts were with magistrates and police inspectors.
ivan.camilleri@timesofmalta.com