17/07/2003

OF CRIMINAL APPEAL (SUPERIOR)

FILLETTI JOSEPH A., PACE RAYMOND C., SCICLUNA DAVID

IR-REPUBBLIKA TA' MALTA vs JOSEPH VELLA ... OMISSIS ...

N/A

FINAL JUDGEMENT

N/A

X GHANDU JKUN FIH L INDIRIZZ TAL IMHALLEF LILL GURATI

Kull indirizz irid ikun bilancjat, u l-kaz tad-difiza ghandu jigi pprezentat b'mod adegwat. RosemaryPattenden, fil-ktieb taghha Judicial Discretion and Criminal Litigation (OUP 1990), tghid:

"Whatever mode of summing-up the judge employs he must ensure that the defence is outlined fairly. How this is done is governed by open-ended rules. The judge must put the ‘substance' of the defence, however weak, save where the accused has failed to discharge an evidential burden. ‘[T]hat does not mean to say he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given.' (per Goddard LCJ, Clayton-Wright (1948) 33 Cr App R 22 p. 29). As the New Zealand Court of Appeal stressed in R. v. Ryan (per Richmond J., [1973] 2 NZLR 611 at p. 615): 'Each case obviously must be judged having regard to its own particular facts. In some cases it may be sufficient for the Judge to refer in the most general terms to the issues raised by the defence, but in others it may be necessary for him not merely to point out inbroad terms what the defence is but to refer to the salient facts and especially those upon which the accused based his defence. Again, an election by the Judge to embark on a discussion of the evidence and inferences therefrom which are favourable to the Crown may throw upon him the duty of makingsome reference to any important features of the case which militate against those inferences'.

The summing-up, in other words, should look balanced, and any defence which is not merely fanciful or speculative, particularly in a homicide trial, must be put to the jury.The Judge can, of course, comment adversely on an unconvincing defence." (pp. 178-180).

F'Blackstone's Criminal Practice 2001 (para. D15.16, p.1448) naqraw:

"Provided he emphasises that the jury are entitled toignore his opinions, the judge may comment on the evidence in a way which indicates his own views.Convictions have been upheld notwithstanding robust comments to the detriment of the defence case (e.g. O'Donnell (1917) 12 Cr App R 219, in which it was held that the judge was within his rights to tell the jury that the accused's story was a 'remarkable one' and contrary to previous statements that he had made). However, the judge must not be so critical as to effectively withdraw the issue of guilt or innocence from the jury (Canny (1945) 30 Cr App R 143, in which a conviction was quashed because the judge repeatedly told the jury that the defence case was absurd and that there was no foundation for defence allegations against the prosecution witnesses). It is the judge's duty to state matters 'clearly, impartially and logically', and not to indulge in inappropriate sarcasm or extravagant comment (Berrada (1989) 91 Cr App R 131)."

Fil-kaz in ezami, l-Onorevoli Imhallef li ppresjeda l-guri enfasizza diversi drabi lill-gurati r-rwol taghhom bhala "l-imhallfin tal-fatti", u lihuma biss iridu jiddeciedu x'jaccettaw jew ma jaccettawx mill-provi.