Court finds no breach in Dar­ren De­sira’s con­tin­ued de­ten­tion

Malta Independent - - FRONT PAGE - Kevin Schem­bri Or­land

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.

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