The Facts

This is an appeal against a judgement delivered by the Criminal Court on 7 October 2004. Zarb was accused by the Attorney General of having, on 24 June, 2001, tried to kill his companion Gorgina Borg by pushing her off the balcony of an apartment in which they were staying together. Zarb and Borg (unmarried but cohabiting for four months) had gone to Gozo and rented an apartment in Qbajjar, outskirts of Zebbug. They had had an argument which eventually culminated at 11pm.

Zarb was accused that maliciously, with the intention of killing Borg, or of putting her life in manifest jeopardy, he grabbed her and pushed her over. The three-storey fall left Borg suffering grave injuries and in danger of dying. She sustained permanent disfigurement, having been left paralysed from the waist down, rendering her dependent on others and confined to a wheelchair for the rest of her life. She was also pregnant at the time and the fall caused her to miscarry.

The jury in the Criminal Court, by a majority of six votes to three, delivered a verdict finding Zarb guilty of attempted wilful homicide but excused, however, by the fact that he was acting under the first transports of sudden passion or mental excitement rendering him incapable of reflecting on the consequences of his act. Zarb was 19 years old when this incident occurred.

Before going into the details of the case, the court explained that one must be aware of the notions of justifiable and excusable wilful homicide.

Justifiable homicide is not a criminal offence; it is justified by law such as in lawful self-defence. Thus, it does not involve any legal penalty whatsoever.

Excusable homicide is a criminal offence (as opposed to justifiable homicide), which involves legal penalties, but it is a less serious offence than wilful homicide and, consequently, not punished as severely as wilful homicide

The law lists an exhaustive set of events that constitute such genres of justifiable and excusable wilful

homicide.

Criminal Court

•Zarb, by virtue of his behaviour, revealed an intent in his attempted wilful homicide of Borg. He maliciously, with the intention to kill or put the life of another in manifest jeopardy, manifested such intention with external acts and the initiation of the execution of the crime which was not completed due to an accidental cause independent of the accused.

•The Attorney General accused Zarb of the above and pleaded that he be condemned to imprisonment for between seven and 13 years, in accordance with Articles 41(1)(a), 211(1)(2), 31(1)(a)(b)(i)(ii) and 533 of the Criminal Code, or to any other punishment that could be given in accordance with the Law for the said offence.

• The jury found the accused guilty of wilfully and maliciously attempting to kill or put the life of Borg in manifest jeopardy. He did not achieve the desired result, however, due to accidental causes independent of the will of the offender.

• The jury however, felt that this attempted wilful homicide was excusable due to the fact that Zarb and Borg were in the middle of a heated argument and he acted under the first transports of sudden passion or mental excitement (furia di sangue) rendering him incapable of being in complete control of his actions.

All the witnesses and pleas in relation to punishment produced by the defence and the prosecution were heard.

Defence

• at the time of the commission of the act, the accused was only 19 years old and had a clean record;

• he cooperated with the police;

•he was a loyal and hardworking young man;

• he regretted what he had done, even minutes after he had committed the crime of which he stood accused;

• his mother described him as a good man;

• he was described by his sister and employer as being a respectful, honest and hard-working young man who was easy to get on with.

The defence felt that, for these reasons, the Court should have granted clemency.

Prosecution

• Had it not been for the insistence of the police, the case could have been closed as a case of attempted suicide on the victim’s part. It was only when the police persisted with the accused that he finally admitted to having committed such a crime. Hence, the defence was incorrect in saying that Zarb had cooperated.

• The victim suffered and is still suffering the consequences of Zarb’s actions which proved to be very grave leaving her in danger of dying and, having survived this, paralysed for life from the waist down.

• It would be wrong to give society a message that if one is acting under the first transports of sudden passion or mental excitement, one can get away with it lightly. Since 2002, in cases like these, the law has established a minimum punishment and also introduced an objective test which one must use to examine whether there was, in fact, such sudden passion or mental excitement. This is due to the fact that today, both in cases of provocation as well as in cases of sudden passion and mental excitement, the reason must be such that in people with an ordinary temperament, this would have the effect of rendering them incapable of considering the consequences of the crime.

• For the above reasons, the punishment should tend more towards the maximum rather than the minimum, hence being between nine and 10 years imprisonment.

The Court

• The Court considered the following factors before delivering judgement in relation to the quantum of punishment:

(i) all the time Borg had spent in preventive custody in connection with the case;

(ii) the verdict of the jury, which was six against three;

• According to Article 228(2) of the Criminal Code before the 2002 amendments, the punishment for excusable wilful homicide was a maximum of 20 years imprisonment, without a minimum;

• According to Article 41, the punishment for an attempted crime is the punishment for the consummated crime, reduced by one or two degrees and hence, according to Article 31(1) (b) of the Criminal Code, the maximum punishment would be of 12 years if reduced by one degree and nine years if reduced by two degrees;

• the gravity of the crime which, although not consummated, was still intended by the offender and led to the victim’s paralysis, confinement to a wheelchair and dependency on others for the rest of her life;

• The UK Judgement Bancroft (1981) which was quoted in Republic of Malta vs. Francis sive Cikku Farrugia (2003) and in Republic of Malta vs. Francis Buhagiar (2003) which claimed that:

“….notwithstanding that a man’s reason might be unseated on the basis that the reasonable man would have found himself out of control, there is still in every human being a residual capacity for self-control, which the exigencies of a given situation may call for. That must be the justification for passing a sentence of imprisonment, to recognise that there is still left some degree of culpability….(Jeremy Horder : Provocation and Responsibility)

• For these reasons, on examination of Articles 31(1)(b), 41, 211, 227(c), 228(2) and 533 of the Criminal Code, the Court condemned Marco Zarb to eight years imprisonment, from which the time spent in preventive custody in relation to the case was to be deducted. By virtue of Article 533, he was also condemned to pay the Court Registrar Lm283.57 for expenses.

Zarb appealed against the punishment imposed upon him in this judgement.

Court of Criminal Appeal

The Appellant

• The punishment was far too excessive;

• The Court of First Instance did not decide whether his statement, given and confirmed by him, constituted cooperation with the police or not, and therefore whether it was to be considered in the evaluation of the punishment;

• The Court’s judgement reflected the acceptance of the claim put forward by the prosecution that Zarb did not in fact cooperate with the police;

• The Court failed to take into account the medical submissions of psychiatrist Joseph Spiteri;

• The Court did not give enough weight to the provocation and abusive behaviour of the victim Borg, such as the fact that she had visited another man although she was pregnant with Zarb’s child and wanted to leave him. There was a failure to evaluate sufficiently the degree and intensity of love that there was between the appellant and the victim Borg;

• Punishment by imprisonment for eight years did not meet any of the scopes of criminal sanction.

Court of Criminal Appeal’s Judgement

The Court examined not only the appealed judgement but also the evidence brought in the compilation of evidence and during the trial by jury and claimed that it could not embrace this appeal for various reasons:

• It was incorrect to state that the Criminal Court failed to sufficiently consider a particular aspect that had an impact on the punishment. All pleas raised were taken into consideration, including that made by the defence regarding Zarb’s cooperation with the police and the counter argument made by the prosecution that claimed that acting on the persistence of the police was not tantamount to cooperation;

• As was examined in Republic of Malta v. Kandemir Meryem Nilgum & Kucuk, Melek (25.08.2005), when, after a verdict given by the jury, the Criminal Court delivers judgment, it is not necessary that detailed reasons as to the choice or quantum of a particular punishment be given, (be it one of imprisonment or a pecuniary punishment) nor that each plea raised by both defence and prosecution be repeated in the judgment nor that there be any particular comment thereon, expressly accepting or discarding them.

This judgment continued that the Criminal Court is not obliged to give detailed reasons explaining either the nature or the quantum of the punishment being meted out, or to spell out any mathematical calculations that it may have made in arriving at that quantum. Such determination is a question of law (Articles 436(2) and 662(2) Criminal Code), however, the Court need only

(i) state the facts of which the accused has been found guilty or pleaded guilty to,

(ii) quote the relevant provision/provisions of the law creating the offence (which generally also determine the applicable punishment), and

(iii) state the punishment or other form of disposal of the case.

Unless the law expressly requires anything else to be stipulated, such as is the case with Article 21 of the Criminal Code which expressly requires anything else to be stipulated, the above criteria would, for all intents and purposes of law, be sufficient. The Court need not go into detail in relation to the nature and quantum of punishment. Particularly in relation to quantum, when the Court has a wide margin of discretion with various degrees and latitudes of punishment, it need not spell out the logical process leading to the quantum of punishment.

The Court also voiced its approval of the position in UK Law which, in a nutshell, claims that although encouraged, the giving of reasons in the meting out of punishment is not an obligation unless expressly required by law. Similar to English Law, where reasons are not given and an error of principle in the way punishment was meting out is revealed, the Court of Appeal sometimes reduces the quantum even though the penalty was not in itself excessive.

The Maltese Court of Criminal Appeal agreed with the above principles. Indeed, it is highly recommendable that, when the law provides for a wide margin of discretion in the application of the punishment, reasons, possibly even detailed reasons, be given explaining how and why the Court came to a particular conclusion.

The Court of Appeal ruled that the punishment awarded was neither wrong in principle nor manifestly excessive since all mitigating and aggravating circumstances were considered. According to Blackstone’s Criminal Practice 2004, “The phrase ‘wrong in principle or manifestly excessive’ has traditionally been accepted as encapsulating the Court of Appeal’s general approach. It conveys the idea that the Court of Appeal will not interfere merely because the Crown Court sentence is above that which their lordships as individuals would have imposed. The appellant must be able to show that the way he was dealt with was outside the broad range of penalties or other dispositions appropriate to the case.”

For the Court of Appeal to revise and modify a sentence, there must be some error in principle. “An appeal will succeed only if the sentence was excessive in the sense of being outside the appropriate range for the offence and offender in question, as opposed to being merely more than the Court of Appeal itself would have passed.”

The Maltese Court finally stipulated that this is also the position that it has consistently taken both in its superior as well as in its inferior jurisdiction.

The Court of Criminal Appeal, after reviewing all evidence, ruled that the punishment meted out by the Court of First Instance was just. Zarb made up his mind to take revenge and kill Borg with whom he was living simply because she did not want to live with him any longer despite the fact that she was carrying his child, which she eventually lost. The fact that he felt hurt, even very hurt, by her actions, including the fact that she had started seeing another man, could never excuse or justify his actions.

It is true that the jurors accepted the excuse that the appellant acted under the first transports of sudden passion or mental excitement. However, this did not mitigate the objective gravity of the offence in question. In such cases, the legislator merely reduces the punishment so as to take into account the state of mind of the offender who was acting while experiencing a heat of blood (furia di sangue).

The attempts of the accused to mitigate his punishment by making claims relating to his strong love for the victim Borg and the intensity of their relationship proved futile. In the Court’s opinion, Zarb confused his desire to dominate Borg with the concept of love.

As shown by the Prosecution, the first versions of the incident given to the police by Zarb claimed that Borg fell or jumped off the balcony of the apartment. It was only the patience and persistence of the Police that finally led Zarb to reveal the true facts.

Neither could the court ignore the significant fact that Borg would have to spend the rest of her life in a wheelchair because of Zarb’s behaviour.