Court finds no breach in Darren Desira’s continued detention

The First Hall of the Civil Court in its Constitutional Jurisdiction today denied a request by Darren Desira by which he challenged a decree of the Court of Criminal Appeal which had refused him bail until his appeal was finally decided.

Desira was charged with offences connected with the importation and trafficking of almost 2 kilos of cocaine of 88% purity in 2001 and was to be brought to trial before the Criminal Court. His case was appointed on 26 November 2012 when he admitted to the charges before the jury was impanelled. The case was put off to the following day for the sentencing phase. The judge presiding his case, Mr Justice Lawrence Quintano, heard evidence and then put off the case to the early afternoon to deliver the judgment. Judgment was given and Desira was found guilty and sentenced to 18 years imprisonment as well as a fine.

It later came to public knowledge that while Mr Justice Lawrence Quintano was writing his judgment, former Judge

Raymond Pace approached him in connection with the sentence to be given.

This case deals with Mr Desira's claim that his continued detention is unlawful, given that his request for bail pending appeal was denied. The defence argued that according to law, if a person is found guilty in the Magistrates' court while out on bail and that person files an appeal, then the person continues to be out on bail, however no such disposition exists in the higher criminal courts. They argued that Mr Desira was out on bail back in 2012, and if the prosecution moved him before the Magistrates' court, he would still be out on bail.

Former Assistant Commissioner Neil Harrison, taking the stand, said that he was the main prosecuting officer in the case against Mr Desira.

Mr Harrison said that former Judge Ray Pace called for him soon after the case against Mr Desira was decided. Harrison went to see Judge Pace in his chambers on 5 December 2012.

During the discussion, the former Judge Pace referred him to two particular court judgements. The first regarding Jose Edgar Pena, telling him that they had to order a retrial on that very day. Mr Harrison was not directly involved in the process regarding Mr Pena’s case. He also referred to Desira's case.

The Former Commissioner said that it was not normal to discuss criminal cases with members of the judiciary after a sentence is given. Mr Harrison said: “While I don’t remember his exact words, the essence of what former Judge Pace said was thank God he intervened as the sen- tence was going to be low”.

This conversation, Mr Harrison said, went on for around 10 minutes. He said that he did not realise the importance of this conversation at that moment. Mr Harrison was later called in by the then Commissioner of Police John Rizzo, ordering him to bring Mr Desira with him.

The accused (Mr Desira) was informed that there might have been some form of influence in his case. During the conversation, and without mentioning the name, a member of the Judiciary was mentioned. At that moment, Mr Harrison remembered the conversation he had with former Judge Ray Pace.

From behind Mr Desira’s back, he mouthed the name Raymond Pace, and the former Police Commissioner signalled to the affirmative.

Mr Harrison stayed behind and told the former Commissioner of his conversation with former Judge Pace.

Mr Desira appealed to the court of Criminal Appeal requesting that the Court declare the judgment null in view of these developments apart from raising other issues contesting the length of the prison term which he claimed was excessive.

In 2014 Mr Desira filed for bail as the appeal had not yet been appointed. In the meantime, criminal proceedings had been issued against former Judge Raymond Pace, Raymond Caruana (both deceased), and Sandro Psaila concerning corruption of a public official.

The Police, in the course of their investigations, had carried out extensive surveillance on the telephone communications between these three parties which pointed to a concerted attempt to increase the term of imprisonment which would be given to Desira.

In considering applicant's case Madam Justice Lorraine Schembri Orland stated that the European Convention does not guarantee bail pending appeal. This case concerned an interim order and, in the circumstances, she could not ignore the fact that he had admitted to his guilt. An admission was in fact the best proof that he committed the crime.

Then Assistant Commissioner Norbert Ciappara also testified. As a Superintendent, he was involved in the investigation of former Judge Ray Pace, Raymond Caruana and Sandro Psaila.

He told the Court that former Commissioner John Rizzo had called him, along with then Superintendent Pawlu Vassallo, and told them of phone taps where Raymond Caruana and Sandro Psaila can be heard agreeing between themselves, as well as calls made with former Judge Ray Pace to fix the judgement relating to Darren Desira.

Through investigations, he said, it resulted that Former Judge Ray Pace had approached the now retired Judge Quintano while he was writing the judgment, and it seems, from testimony in the Magistrates court, that the former judge attempted to talk to Judge Quintano about the sentence, yet Judge Quintano kicked him out.

The Court expressed in no uncertain terms that the fact that a judge was approached in connection with a case pending before him was a most serious breach of the rule of law.

The very fact of such an attempt should have been brought to the notice of the accused and his defence team so that he could have been given the opportunity to react.

However the Court also held that from the evidence, Mr Justice Quintano was not in fact influenced despite the malicious attempt made by third parties.

The Court also referred to the transcripts of the telephone calls between Judge Pace and Sandro Psaila and others which were part of the proof in this case.

However the court was only presently considering a request for bail pending the final judgment of the Court of Criminal Appeal and in such a case, the Court had to give weight to the admission of guilt. The Court considered that in denying bail, the Court of Criminal Appeal had considered all other relevant circumstances, including the gravity of the crime, and consequently could not say that the refusal was an arbitrary one.

The court, whilst denying the request, ordered that a copy of the judgment be inserted into the acts of the proceedings pending before the Court of Criminal Appeal.

The Court expressed in no uncertain terms that the fact that a judge was approached in connection with a case pending before him was a most serious breach of the rule of law.