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Procedural mistake turns back the clock for convicted motorist

A missing formality in the records of a case meant that a motorist who was fined €300 and banned from driving for eight days, will have his case decided again.

The procedural error was flagged by Herman Sant’s lawyers who argued that when the case was assigned from one magistrate to another, there was nothing in the records to show that that assignment had been done under the direction of the Chief Justice in terms of law.

The case stemmed from an incident which took place in January 2018 when Sant was allegedly found driving in Marsa without a driving licence and also without any third-party insurance cover.

He was charged before the Magistrates’ Courts and judgment was delivered in November 2022 whereby, upon the accused’s own admission, he was found guilty of driving without a licence but acquitted of the second charge.

The AG appealed that decision, arguing that the first court had wrongly interpreted the law when saying that since a valid insurance policy had been presented in evidence, then third parties were adequately covered and consequently, the second charge had not been proved by the prosecution.

Sant’s lawyers, Charles Mercieca and Gianluca Caruana Curran, raised two preliminary pleas related to the fact that during the proceedings the magistrate first assigned the case had been elevated to judge and consequently, the case moved to another magistrate.

In the first place, they argued that the accused had not exempted the new magistrate from hearing the witnesses all over again.

But the Court of Criminal Appeal, presided over by Madam Justice Consuelo Scerri Herrera, turned down that argument, observing that during five consecutive sittings before the new magistrate, the defence had never flagged any issue about hearing those testimonies afresh.

The lawyers also argued that there was nothing in the records indicating that the case had been assigned to the new magistrate by the Chief Justice in terms of Article 11(3) of the Code of Organization and Civil Procedure.

That article stated that the distribution of duties in general between judges “shall be made by the Chief Justice and the registrar shall assign cases and other judicial acts to the judges as directed by the Chief Justice.”

In this case, it appeared that when the first magistrate was appointed judge, in July 2019 Sant’s case was simply transferred to another magistrate between one sitting and another.

That procedural defect meant that the defence’s plea was to be upheld, declared Madam Justice Scerri Herrera, ordering that the case was to be sent back to the Magistrates’ Courts for the accused to return to the position he was in before proceedings ended up before the second magistrate.