Man ac­quit­ted on ap­peal as state­ment was given to po­lice with­out lawyer present

Malta Independent - - News -

A man who had ad­mit­ted to deal­ing ec­stasy has been ac­quit­ted on ap­peal.

Rod­er­ick Castillo, 38, had been ar­raigned by then In­spec­tor (now As­sis­tant Com­mis­sioner) Den­nis Theuma in 2008, charged with pos­ses­sion and traf­fick­ing of ec­stasy. In De­cem­ber 2013, he was found guilty and sen­tenced to 9 months im­pris­on­ment and a fine of €1500.

Castillo had filed an ap­peal, his lawyers, Franco De­bono and Amadeus Cachia, ar­gu­ing that his con­vic­tion was based solely on a state­ment he had re­leased to the po­lice upon his ar­rest. In that state­ment, Castillo had said that he had passed the pills on to his girl­friend to smug­gle them into a party they were go­ing to that night.

But his state­ment had also been taken in the ab­sence of a lawyer – a prac­tice which was per­fectly le­gal at the time, but which has sub­se­quently been ruled un­con­sti­tu­tional.

The Court of Crim­i­nal Ap­peal, presided by judge An­to­nio Mizzi, said it could not but re­fer to re­cent judg­ments of the Eu­ro­pean Court of Hu­man Rights and other courts that stip­u­late that a per­son un­der ar­rest has a right to le­gal as­sis­tance from the very be­gin­ning of the po­lice in­ves­ti­ga­tion, even whilst re­leas­ing state­ments and in the ab­sence of this as­sis­tance, a breach of hu­man rights would have oc­curred.

As the only ev­i­dence against the ac­cused in this case was his state­ment, the Court of Ap­peal ruled the man’s con­vic­tion to be un­safe.

“Once… the only ev­i­dence brought against him was the state­ment he had re­leased in breach of his fun­da­men­tal rights to a fair hear­ing, then he should never have been found guilty of the charges brought against him.”

Cit­ing Repub­lic of Malta vs Chuk­wudi Sa­muel Onya­bor, the court or­dered the re­moval of the man’s state­ment from the acts of the case and, as this was the only ev­i­dence in the case against him, re­voked the pre­vi­ous judg­ment and de­clared him not guilty.

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