The Court of Criminal Appeal has dismissed an appeal filed by the Attorney General to the acquittal in a trial by jury of two men accused of smuggling 20kg of cannabis resin into Malta on a boat.
Godfrey Gambin, 44, a former barman from Iklin had been arrested in July 2010 together with Libyans Adel Mohammed Babani, 55 and Nabeil Ibrahim Saleh, 50, following a police operation which caught the men with nearly 20kg of cannabis resin in their possession, shortly after their arrived at Xemxija on a speedboat.
Saleh had managed to abscond from the islands after spending 22 months in preventive custody and remains at large.
Gambin and Babani had been acquitted by a jury of their peers in a sensational jury trial. Former Assistant Commissioner of Police Neil Harrison, had testified that the men had been arrested as a result of a controlled delivery, liaising with one of the men on the speedboat. This pivotal detail had not been mentioned in six years since the men had been arrested, a fact that was exploited to the fullest extent by the defence in obtaining the not guilty verdict.
The Attorney General had filed an appeal following the acquittal, arguing that the jury had been misdirected by the sitting judge before retiring to deliberate.
In its decision on the matter, the Court of Criminal Appeal, presided by Chief Justice Joseph Azzopardi, Mr. Justice Joseph Zammit McKeon and Mr. Justice Giovanni Grixti, ruled that the trial judge had been “legally correct and precise in how it postulated the issue of the controlled delivery.” That judge had gone to great lengths to make the issue of the validity of the controlled delivery clear to the jurors.
The court made extensive reference to legal authors on the issue of controlled delivery and the interests of the defence and the prosecution in such cases.
But it said that from an examination of the court file, it did not appear that the issue of the controlled delivery was the common denominator for the defence arguments. “…The first line of defence was that of lack of knowledge on the part of the accused.” The accused testified that they had no idea of the intention of Nabeil, other than to enter Malta clandestinely. When they went to assist him at Xemxija, they had gone there three times in their private vehicles, noted the judges. No Drug paraphernalia or suspicious amounts of money were found at the men’s homes and Gambin’s shop, they said.
It did not appear that the judge had left the jury to decide a question of law and not a question of fact, as it should have, said the judges. There was no defect in the judge’s closing address which would have had an effect on the jury’s verdict, they said. For this reason, the Court of Criminal Appeal said that it saw no reason to overturn the judgment.
Lawyers Franco Debono and Mario Mifsud were defence counsel.
Original article found on The Malta Independent