One long-standing rule of evidence, applicable not only to criminal proceedings, but to all contentious judicial actions, is the so-called ‘best evidence’ rule. It has its roots in the 18th century English case ‘Omychund vs Barker’ (1780) where Lord Harwicke had remarked that one should not admit evidence unless it is “the best that the nature of the case allows”. Eventually it infiltrated the Maltese legal order in colonial times when Malta was under British rule.
Simply put, this evidentiary rule indicates that a party who wants to admit evidence is expected to produce the best (or ‘most satisfactory’ – as Article 638 of the Criminal Code says) reasonably obtained evidence.
The term “best” implies that when a piece of “superior” evidence is available, one should refrain from producing an “inferior” or “second best” alternative, especially in criminal proceedings where the prosecution bears the onerous responsibility to prove. its case beyond a reasonable doubt.
A classic example would be a part of submitting a non-original or outdated version of a document when the original or updated version is itself readily available and easily accessible. In such scenarios, the “secondary” piece of evidence, although relevant and admissible, lacks probative value due to unreliability.
The application of this evidentiary rule was the one which led to the full release of the appellant in the judgment given on 16 December, by the Court of Criminal Appeal (Inferior Jurisdiction) with the names’ Police vs Jason Caruana ‘.
Before the Court of First Instance, the appellant was accused of failing to comply with the conditions of provisional release as imposed on him in criminal proceedings separate from the Court of Magistrates (Malta) as a Court of Criminal Judiciary in decree of June 17, 2016, (as subsequently varied by decree of December 2, 2016).
He was convicted and sentenced to one year in prison. In addition, the Court of First Instance revoked it contrary empire (by decision to the contrary) the decree of June 17, 2016, by which the accused was granted provisional release, and consequently ordered his re-arrest. In addition, the Court of First Instance also ordered the confiscation in favor of the government of Malta of the sum in the amount of € 4,000 – which represents the deposit and the personal guarantee referred to in the said decree. of the bail of June 17, 2016.
An appeal was lodged by the convicted person. He asserted, inter alia, that at first instance the prosecution had failed to prove whether the conditions of the allegedly infringed release had remained intact or were at some point varied and, therefore, had failed to produce evidence. the best possible evidence.
In its judgment, the Court of Criminal Appeal observed that during the initial hearing before the Court of First Instance on 9 September 2020, the prosecution exhibited a legal copy of the original bail dated 17 June 2016, by which the appellant was released from custody. Along with this decree, the prosecution exhibited a legal copy of another unrelated decree – dated November 30, 2016 – which was not the one authorizing a variation in the conditions of the appellant’s bail.
A party who wants to admit proof is expected to produce the best (or most satisfactory evidence) reasonably obtained.
At the same hearing, the prosecution stated that there was no further evidence to produce. At this point, it should be noted that in criminal proceedings, as a rule, once a party has declared its case closed, its probationary stage cannot be reopened. In the present case, therefore, the prosecution was legally precluded from submitting any other evidence in support of its case.
As it happened, at a later hearing before the Court of First Instance – at a point where the defense had also declared its case closed – a note was lodged on 28 September 2020 by the Registrar. of the Criminal Courts by which a legal copy of the original bail decree dated 17 June 2016, was re-exhibited.
In addition to this decree, the Registrar of Criminal Courts also filed a legal copy of the decree of 2 December 2016 – namely that which had changed the conditions of the appellant’s provisional release and also that which the prosecution had erroneously failed to exhibit at the hearing held on September 9, 2020.
With great emphasis, the Court of Criminal Appeal ruled that it was not procedurally permissible for the prosecution to rectify surveillance at such a late stage in the proceedings. The prosecution case is merely limited to the evidence produced until its case is declared closed and, therefore, the Court of First Instance should not have taken note of the note lodged by the Registrar of Criminal Courts in 28 September 2020.
As it turned out, the prosecution closed its trial stage at the first hearing of the case, after showing only a legal copy of the original decree granting provisional release, ie the one dated 17 June 2016, together with another decree – dated November. 30, 2016 – has no effect on the lawsuit.
The Court of Criminal Appeal has, therefore, indicated in black and white that judicial decisions, especially in the field of criminal law, cannot be based on assumptions. The documentary evidence produced in support of the allegations is expected to be completed and properly updated.
The failure of the prosecution to present, in due course, a legal copy of the decree of 2 December 2016, ie the last ‘variation’ decree, implied that the prosecution had also, as a result, been reduced. from providing the strongest evidence available in support of its allegations – with the result that it does not produce the ‘best evidence’, or as the law itself puts it, ‘the most satisfactory evidence’.
For this reason, the Court of Criminal Appeal fully acquitted the appellant. The case is now res judicata.
Jacob Magri is a junior associate at Azzopardi, Borg & Associates Advocates.
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