A judge had stinging words of criticism for the way a magistrate decided a case of grievous bodily harm in Gozo.

Dione Lautier was accused of grievously injuring Frank Tabone and breaching the peace in St. George’s square, Victoria, Gozo, in 2016.

In July 2017 the Court of Magistrates in Gozo, presided by Magistrate Joe Mifsud, found Lautier guilty and sentenced him to 18 months imprisonment suspended for 3 years. 

But the Court of Appeal had to re-examine the case in detail after Lautier’s lawyers claimed the first court had ignored his defence. The presiding magistrate had interrupted the defence’s submissions and said that it would give him a suspended sentence and a protection order, Grixti observed from the records of the case.

The court also observed that the magistrate had written several pages of general legal principles which were “frankly useless to the resolution of the issue,” after which it proceeded to ignore the fact that the accused had acted in self defence and not under provocation.

“It would have been far more desirable had the first court, instead of exerting itself on a description of preliminary legal principles which have no ties to the case in point, given its motivation for concluding that it had been the appellant who attacked the parte civile.”

Judge Giovanni Grixti also noted that the magistrate had found the man guilty under an article of the law not specified in the charges or mentioned in the acts and failed to indicate the correct article.

This brought about the nullity of the sentence, Grixti said, revoking the judgment in its entirety. He then proceeded to re-evaluate the evidence.

The defendant and the victim owned shops in the vicinity of one another and an argument arose over a pile of debris and sewage that had come out of a nearby manhole. The argument had devolved into fisticuffs and Tabone had suffered various injuries.

The Court of Appeal said it could not close its eyes to the fact that the Court of Magistrates had not made an in-depth examination of the evidence. "The question of this court is why the appellant did not raise any opposition or ground in this sense." The court said it could not serenely revise the judgment without registering its opposition to declarations such as this, in a stage when the press is still ongoing, when there is no admission and therefore the accused would leave the courtroom convinced that his defence was futile."

The first court had made no observation and reached no conclusion about the nature of the injuries suffered by the victim other than declaring the accused guilty, said the judge. “From there it moved on to cite a sentence that explains the difference between legitimate self defence and provocation and appears to have concluded that it wasn’t a case of self defence but provocation because it was an anticipated danger. 

“With all due respect, it is not the citing of sentences that determine guilt or innocence of the accused, but the examination of facts with the help, if necessary, of the lesson emerging from the sentence.”

The court said it was high time that the legislator make it compulsory for a court to give the reasoning by which it reached a particular conclusion.

The judge said he had thought long and hard about what the possible motivations of the decision to discard completely the possibility of legitimate self defence or provocation, could have been. He concluded that the first court had been impressed by the injuries suffered by the parte civile.

After re-examining the evidence tendered and noting the confusion of different versions tendered by the witnesses, judge Grixti observed that the accused had admitted to punching the parte civile, but said he had only done so after being punched in the teeth by the man.

The court said the only reasonable conclusion it could arrive at was that the victim had punched the accused in the teeth before being battered by the accused reacting to the blow. But it dismissed the plea of self defence, pointing out that for this legal defence to succeed the threat must be unjust, grave and inevitable. These factors were not present and there was nothing to show that the accused had no option but to react violently. “Even the difference in stature is enough to suggest that the appellant could have avoided the [incident.]”

Moving on to the defence of provocation, which would bring about a mitigation in punishment although not an acquittal, the court noted that the appellant’s reaction had been instantaneous. “Here is the defect in the sentence by the first court, when for some reason, it concluded that this reaction was down to comments made some time before the incident.”

For this reason, the court found the man guilty of grievous bodily harm which was excusable due to provocation. Noting the man’s criminal record which included a number of infractions involving his shop, the court placed him under probation for two years, urging the Probation Officer to do whatever was possible to restore the good relationship between the two men, who had shops near to each other.

Lawyers Angie Muscat, Franco Debono and Jean Paul Grech were defence counsel.