The Court of Criminal Appeal, composed of Mr Justice Raymond Pace, Mr Justice David Scicluna and Mr Justice Joseph Zammit Mc Keon, in the case “The Republic of Malta vs Eduardo Navas Rios”, on January 20, 2011, held, among other things, that even in the context of criminal proceedings for money laundering under Chapter 373, the criminal court had authority to appoint experts. The provisions of the Criminal Code were applicable unless precluded specifically by Chapter 373.

The facts in this case were as follows.

Eduardo Navas Rios was charged by means of a bill of indictment filed by the Attorney General on November 7, 2008 with money laundering offences:

converting or transferring property knowing or suspecting that such property is derived directly or indirectly from, or the proceeds of, criminal activity or from an act or acts of participation in criminal activity, for the purpose of or purposes of concealing or disguising the origin of the property or of assisting any person or persons involved or concerned in criminal activity;

concealing or disguising the true nature, source, location, disposition, movement, rights with respect of, in or over, or ownership of property, knowing or suspecting that such property is derived directly or indirectly from criminal activity or from an act or acts of participation in criminal activity;

acquiring, possessing or using property knowing or suspecting that the same was derived or originated directly or indirectly from criminal activity;

retaining property without reasonable excuse knowing that the same was derived or originated directly or indirectly from criminal activity or from an act or acts of participation in criminal activity;

attempting any of the matters or activities defined in the above foregoing paragraphs (i), (ii), (iii) and (iv) within the meaning of Article 41 of the Criminal Code;

acting as an accomplice within the meaning of article 42 of the Criminal Code in respect of any of the matters or activities defined in the above foregoing sub-paragraphs (i), (ii), (iii), by person, place, time and amount of the thing stolen; (3) rendered himself guilty of keeping in any premises or having in his possession, under his control any firearm or ammunition without a licence.

The accused admitted stealing money, derived from drug trafficking. It was contended that the “laundered” money appeared to derive from the two predicate offences: the drug racket and theft of “drug money”.

He was charged for carrying out transactions to clean “dirty money”.

Mr Navas Rios, the accused, contested the validity of the bill of indictment. He pleaded:

(1) The first court of the bill of indictment was null, in view of the fact that the Attorney General did not give any direction per sub article 2A of section 3 of the Prevention of Money Laundering Act, Chapter 323.

This sub-article 2A provides that: “Every person charged with an offence against the Act shall be tried in the Criminal Court or before the Court of Magistrates... as the Attorney General may direct”.

(2) The nullity of the first court of the bill of indictment, as the facts stated therein do not constitute, in substance, the offence stated in the first court.

(3) The first paragraph of the first court of the bill of indictment was merely intended to unduly prejudice him. Allegedly, the facts stated were unrelated to the accusation and should therefore be deleted.

(4) The inadmissibility of the evidence of Dr S. Filletti as well as his report in view of the fact that section 2 of the Prevention of Money Laundering Act did not empower the court to nominate an expert to draw up an inventory.

The third plea was later withdrawn provided the presiding judge in the trial would emphasise to jurors to consider the facts that result from the evidence produced during the course of the trial.

On October 12, 2009, the Criminal Court rejected the three remaining pleas.

The court considered that the compilation of evidence did not depend on an order issued by the Attorney General but on the basis of criminal code provisions. A direction from the Attorney General was only required for determining which court was to try the case: re Republic vs S. Mifsud, (Criminal appeal dated February 5, 1996).

The court ruled that at the time the compilation of evidence was commenced, there was no need for the Attorney General to give any directive under sub- article 2A, in 2007.

Re: The Republic of Malta vs Kevin Attard dated 10.112008: it was held that “procedural rules have to be applied in a practical and sensible way and not in such a way as to get criminal proceedings tied up in knots and obstructed from taking their natural legal course in the true administration of justice”.

With regards to the accused’s second plea, it was stated that the Attorney General was contending that since the accused’s financial situation was such that he could not have lawfully earned the amount of money transferred to Panama, and since it was acquired from “highly illicit activities”, this in itself constituted money laundering.

The accused argued that a money laundering offence as mentioned in Chapter 373 had to be perpetuated precisely for the purposes of laundering such proceeds derived from criminal activity.

Otherwise, the commission of any criminal offence from which some financial benefit was derived, would automatically bring with it the charge of money laundering.

The Attorney General disagreed. It was stated that the accused made numerous transactions to transfer money out of Malta, and in so doing, he attempted to clean the provenance of the funds derived from criminal activity. The two predicate offences need not be proven beyond reasonable doubt. Suspicion was sufficient for the purposes of a money laundering conviction.

“The definition of money laundering in Chapter 373 was very wide in its interpretation in that it presented numerous scenarios giving rise to and constituting money laundering.”

It appeared that the intention of the accused was to carry out money laundering.

The court said that the reason for the annulment of a bill of indictment should arise from the document itself. It had to consider whether the formalities as prescribed by law were observed. It need not consider the accuracy of the facts as stated in the bill of indictment (re Rex vs Strickland 21-03-1923).

In the circumstances, the court was satisfied that if the facts were proven, the accused could be found guilty as charged. It was of the opinion that the legal requirements were observed and there was no reason for annulling the bill of indictment.

As regards the accused’s fourth plea that this court had no authority to appoint an expert to draw up an inventory under the Prevention of Money Laundering Act, it considered article 5 (1) of Chapter 373.

There was certainly nothing in the law – and in particular in Chapter 373 – which precluded the court from appointing an expert on any technical matter, maintained the court.

Aggrieved by the decision of the Criminal Court, the accused, Mr Navas Rios, entered an appeal, reiterating his plea that the bill of indictment was null.

On January 20, 2011, the Court of Criminal Appeal gave judgment by dismissing the appeal. It ordered that the case be remitted for continuation according to law.

The following reasons were given for the court’s decision.

When the accused was arraigned under arrest before the Court of Magistrates (Malta) as a Court of Criminal Inquiry on the March 24, 2007, sub- article (2A) of article 3 of Chapter 373 of the Laws of Malta did not exist and a direction by the Attorney General was not required.

The requirement for a direction was introduced by article 44 of Act XXXI of 2007, which came into force on Janaury 15, 2008, in virtue of legal notice 10 of 2008.

It noted that on April 19, 2007, the Court of Magistrates had decreed that these were sufficient grounds for the trial of the accused on the indictment.

Reference was made to Republic vs Kevin Martin Lorence Silvio Angels Attard of November 20, 2008 when it was held that procedures were intended to promote the administration of justice and not to create obstacles. If the law did not expressly state that non-compliance would render the act null, the court had to be very cautious before declaring any act to be null and void.

The accused’ s first grievance was dismissed.

The Court of Criminal Appeal agreed with the Criminal Court that if the facts in stated in bill of indictment were proven, this could conceivably lead to a conviction. Reference was made to the Prevention of Money Laundering Act.

The accused’s second grievance was dismissed.

The court also rejected the plea relating to the inadmissibility of the expert’s report. It said that this court was authorised under the Criminal Code (Article 650) to appoint experts: when “special knowledge or skill was required”.

Chapter 373 did not preclude the appointment of experts. The third plea was also dismissed.

Dr Grech Orr is a partner at Ganado & Associates.