Professionals have to be morally upright and uphold strong ethical values, a magistrate said in a judgement which aquitted a notary from being party to a fraud to the detriment of the public coffers.

Notary Antoine Agius was facing criminal action after the declared value on a deed of sale, drawn up by him in December 2003, was found to have been lower than that originally declared in the promise of sale, and this for the purpose of tax evasion.

In a lengthy and detailed judgment, based on over 700 pages of evidence, Magistrate Joseph Mifsud observed that the element of trust lay at the heart of the notarial profession, stressing further the need of transparency and diligence by members of the profession.

“The behaviour by a small minority of notaries was blurring the trust which the citizen placed in this profession,” remarked the magistrate, seizing the opportunity to send out a message to all practising notaries to function within legal parameters when serving both parties and the State.

In this case, legal action was sparked off by a police report filed by Dutch-national Wendela Ringeling alleging that she had been made victim to a fraud which had occurred some six years previously when she had purchased property in Swieqi.

Although the purchase price on the promise of sale had been set at Lm145,000, the price on the final deed was declared as being Lm60,000, the difference having been attributed to construction expenses, the woman insisted, denying any underhand move of tax evasion.

When confronted about this issue by his client, the notary had told the woman that she had authorised the deed by virtue of a private writing. However, it was later proved by a court-appointed expert that the woman’s signature had been superimposed from a genuine signature on a site plan attached to the promise of sale and could only be detected by an expert.

In the course of the proceedings, it transpired that the contract of sale had actually been null and void since the land in Swieqi had been previously acquired by the State by virtue of the Ecclesiastical Entities (Properties) Act whereby Church property had been transferred to government.

Since the prosecution had based its case on this deed of sale which was actually null and void, all its arguments fell through. Indeed, it was the State’s duty to refund all taxes and duty paid by the parties to the contract, the court observed.

Regarding criminal liability of the notary, the court concluded that the prosecution had failed to prove that the notary had intended to defraud the State. He had simply put down the price agreed to by the parties and had, in no way, been involved in negotiations on the said price.

Moreover, there was no evidence that the notary knew that one of the signatures was forged. His only shortcoming had been that of accepting a signature on a private writing that was not written in his presence, the court pointed out.

This could possibly be taken as carelessness on the part of the notary, meriting disciplinary action as a member of the profession, but it did not make him criminally liable.