A constitutional court has declared that the right to a fair hearing of two men awaiting trial by jury was breached when the criminal court upheld a request by the prosecution to produce new witnesses and to replace a court expert, without the accused being afforded a right of reply.

Austine Uche and Kofi Otule were due to stand trial by jury on June 1, 2016 when the trial was suddenly adjourned. A week before the due date, the AG had filed an application requesting the adjournment and asking the Criminal Court to send back the records of the case to the magistrate's court so that three new witnesses could be produced. The prosecution also requested the appointment of a new court expert to replace the original one.

The two defendants were not notified of the AG's request which the Criminal Court upheld before the accused had a chance to reply. Mr Otule's request for the revocation of the decree was turned down by the Criminal Court.

The matter was ultimately referred to the First Hall, Civil Court, in its constitutional jurisdiction, by the magistrate's court of criminal inquiry.

The court, presided over by Madame Justice Anna Felice, observed that on the strength of Maltese and European case-law, it could not review decisions taken by the Criminal Court pointing out that the applicants were "free to take up the legal tools available to them in order to challenge the decision taken, but not by claiming a breach of their right to a fair hearing as a result of an alleged misapplication of the law".

However, the court declared that it could not ignore the fact that the AG's request had "serious implications" for the accused who, in line with the principle of 'equality of arms', should have been afforded a right to reply before the Criminal Court reached its decision to allow the prosecution's request.

The court concluded that there had been a breach of the applicants' right to a fair hearing and ordered a copy of its decision to be inserted in the acts of the bill of indictment.

Lawyers Franco Debono, Amadeus Cachia, Alfred Abela and Mario Mifsud appeared for Kofi Otule. Lawyer Joseph Mifsud appeared for Austine Uche.