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Judge’s comments on ‘partner’ expert raises questions

Courts say judge asked parties if they had any objection

Madam Justice Consuelo Scerri Herrera during the swearing-in ceremony in June. Photo: Matthew Mirabelli

Madam Justice Consuelo Scerri Herrera during the swearing-in ceremony in June. Photo: Matthew Mirabelli

Updated 8pm with courts' right of reply

Comments made by a judge on the way a magistrate handled the input of an expert she described as her “partner” a few weeks ago have raised eyebrows among legal operators.

The case dates back to July 2017 when the Magistrates’ Court fined a St Paul’s Bay bar owner for playing loud music to the detriment of his neighbour, who filed a police report.

Madam Justice Consuelo Scerri Herrera, sitting in the Court of Criminal Appeal, noted that Robert Musumeci had been appointed by the magistrate hearing the case to report on the noise situation.

She said that the first court opted to “disregard technical conclusions”, basing itself on assertions that were totally “annihilated” by the readings and measurements taken.

Judge should ideally have recused herself

The first court had based itself purely on subjective considerations and did not refer to scientific or technical data to water down or totally do away with the conclusions reached by the technical expert, the judge said.

“If such is the case, it should not have appointed him in the first place. In a matter of technicalities, it should not have substituted itself in reaching conclusions, which per necessitatem had to be based on objective criteria,” she added.

The appeal court said it took note of Dr Musumeci’s report, in which it transpired that when the complainant had the windows of his bedroom closed and the music in bar was at full blast, the reading was 52 decibels and when the sound was turned off the sound levels stood at 40 decibels.

Dr Musumeci had concluded in his expert report that had the music been full on, bar patrons would not be able to speak, thus insinuating it was unlikely the music was playing at full volume.

The judge concluded that the prosecution had failed to prove its case beyond reasonable doubt.

Last month, speaking on her first sitting in the superior court, Madam Justice Scerri Herrera thanked Dr Musumeci, her “partner”, for his great patience as she spent hours at her desk.

Legal experts who spoke to the Times of Malta on condition of anonymity said the judge should ideally have recused herself in the circumstances.

Meanwhile, questions sent to the Justice Ministry asking whether the judge should have declared her conflict of interest remained unanswered.

No objection from parties involved - courts

In a right of reply, the courts of Malta noted that the case had first reached the court of appeal on July 19 2018. 

During that first sitting, the court said, Madam Justice Herrera had highlighted the fact that the court of magistrates had appointed Dr Musumeci as an expert to the parties involved. 

The judge had asked the parties to declare whether they had any objection for the case to be presided by her.

"The parties declared that they had no objection for the case to be presided by her. The parties made their oral pleadings and the case was put off for judgment on the 31st July 2018. All six judgments were subsequently delivered on the 31st July 2018," the courts said. 

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