The Malta Independent 25 June 2019, Tuesday

Unwanted kiss: hotel guest cleared of sexually assaulting waiter

Monday, 10 June 2019, 11:31 Last update: about 14 days ago

A hotel guest accused of sexually assaulting a waiter at his hotel has been acquitted of all charges after a court ruled that the accused had not touched the alleged victim aside from giving him an awkward kiss.

Inspector Alfredo Mangion had arraigned Michael James Ebzery, 67, from Australia last August on a charge of having committed a non-consensual act of a sexual nature on a waiter at the hotel he was staying at.

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The court was told that the victim had told his superiors about an incident where the accused had allegedly kissed his neck without invitation and then made other unwanted advances. The waiter’s management had then gone to the police.

Magistrate Simone Grech heard the victim testify to having been at work serving drinks by the beach on 31 July 2018 when the accused, whom he recognised as a guest at the hotel, followed him into the toilet and asked him to have sex with him. Although the boy refused, the accused had tried to initiate a sexual encounter by touching him. The alleged assault ended when another guest entered the toilets, allowing the boy to escape.

In cross-examination, the victim had testified that he was a gay man and had given the defendant an address of a gay club he could go to whilst in Malta. During the encounter, the accused had leaned in to kiss him but the boy had moved away, he said. He confirmed that the accused did not restrict his movement in any way but said that he was afraid and did not know what to do.

The defendant had also testified, telling the court that he had come to Malta with his partner of 35 years. On the day in question, the waiter had come over to see whether they wanted a drink. He said he noticed that the waiter had an anklet and a bracelet in rainbow colours and asked him if he was gay. The waiter said he was. The two had a long conversation about their coming out as gay, he said.
Some time later, he had gone to the beach alone as his partner was unwell and at a point had gone to the toilet and had bumped into the victim there.

The two got talking and the accused at one point leaned in to kiss the victim, who said “no” and moved away but it was too late and the man ended up kissing his neck. Ebzery said the kiss was more to congratulate the alleged victim on coming out than anything else and denied ever touching the other man’s private parts, saying he would never jeopardise his relationship with his partner.

Magistrate Simone Grech observed that she was faced with two different versions of events, pointing out that this did not mean the court would automatically acquit the accused.

But the court also noted that the victim’s account to the court was “not a consistent one” and that he seemed to have inflated the incident with every version he gave to his superiors and the police.

Secondly the place where the incident took place was busy and highly unlikely that such an act would have been carried out at the time alleged, said the court. In addition, the person who allegedly interrupted the encounter was never identified or brought to testify.

“Fourthly, the alleged victim had the opportunity to scream or inform this third party who entered upon the alleged incident about what was happening, but when asked, the victim simply stated that he just exited quickly.”

The accused’s version of events, on the other hand was always the same and identical to that given at the time of the incident.

The court said it was of the opinion that the kiss on the neck which was given did not constitute a sexual act and pointed out that the waiter was never restricted in his movement. Moreover, the accused had immediately stopped when he understood that the alleged victim was not giving his consent to being kissed.

Magistrate Grech said she was not convinced that the defendant had the necessary intent for the offence with which he was charged to subsist and subsequently acquitted Ebzery.

Inspector Alfredo Mangion prosecuted. Lawyers Giannella De Marco and Gianluca Caruana Curran were defence counsel.

 

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