A hotel guest has been found not guilty of having sexually assaulted a waiter after a court ruled that he had only given him an awkward kiss.

Michael James Ebzery, 67, from Australia was accused of having committed a non-consensual act of a sexual nature on a waiter at the hotel he was staying at.

The waiter had told his superiors about an incident where the accused allegedly kissed his neck without invitation and then made other unwanted advances. 

The waiter testified that he was serving drinks on July 31, 2018 when Mr Ebzery, whom he recognised as a guest at the hotel, followed him into the toilet and asked him to have sex with him. Although the young man refused, Mr Ebzery had tried to initiate a sexual encounter by touching him. The alleged assault ended when another guest entered the toilets, allowing the young man to escape.

The waiter testified that he was a gay man and had given Mr Ebzery an address of a gay club he could go to whilst in Malta. During the encounter, Mr Ebzery had leaned in to kiss him but the waiter said he had moved away. The accused did not restrict his movement in any way.

Mr Ebzery told the court that he had come to Malta with his partner of 35 years. On the day in question, the waiter had come over to see whether they wanted a drink. He said he noticed that the waiter had an anklet and a bracelet in rainbow colours and asked him if he was gay. The waiter said he was. The two had a long conversation about their coming out as gay, he said.

Some time later, he had gone to the beach alone as his partner was unwell and at a point had gone to the toilet and had bumped into the victim there.

The two got talking and he leaned in to kiss the victim, who said “no” and moved away but it was too late and the man ended up kissing his neck. Ebzery said the kiss was more to congratulate the alleged victim on coming out than anything else and he denied ever touching the other man’s private parts, saying he would never jeopardise his relationship with his partner.

Magistrate Simone Grech observed that she was faced with two different versions of events.

She noted that the victim’s account to the court was “not a consistent one” and that he seemed to have inflated the incident with every version he gave to his superiors and the police.

Furthermore the place where the incident took place was busy and it was highly unlikely that such an act would have been carried out at the time alleged. The person who allegedly interrupted the encounter was never identified or brought to testify.

The alleged victim had the opportunity to scream or inform this third party who entered upon the alleged incident about what was happening, but when asked, the victim simply stated that he just exited quickly.

The accused’s version of events, on the other hand was always the same and identical to that given at the time of the incident.

The court said it was of the opinion that the kiss on the neck did not constitute a sexual act and pointed out that the waiter was never restricted in his movement. Moreover, the accused had immediately stopped when he understood that the alleged victim was not giving his consent to being kissed.

Magistrate Grech said she was not convinced that the defendant had the necessary intent for the offence with which he was charged and subsequently acquitted Ebzery.

Inspector Alfredo Mangion prosecuted. Lawyers Giannella De Marco and Gianluca Caruana Curran were defence counsel.