Martin Cachia vs Commissioner of Police

Court of Appeal

Judges: Chief Justice Vincent Degaetano; Joseph Camilleri; Joseph A. Filletti;

7 July, 2006

This case was in respect of a police search that took place in September 1995 upon order of the Commissioner of Police, on which occasion various objects belonging to the plaintiff were seized. These included unrecorded video-cassettes, empty boxes, rolls of audio cassette tape and mechanical equipment relating to audio cassette recordings. These were taken to police headquarters and kept in a warehouse.

In January 1997, the plaintiff, together with his business partner Eugenio Frantz, was taken to Court and accused of commercial fraud and breach of copyright.

In March 1999 they were acquitted. The Court of Magistrates as a Court of Criminal Judicature ordered the release of the objects seized.

The plaintiff claimed that these objects had been kept in very bad conditions, such that they were no longer functioning and had lost considerable commercial value.

The plaintiff requested that the Court

• Declare that the defendant did not take sufficient precautions to ensure the objects’ safety;

• Liquidate damages suffered;

• Condemn payment of liquidated damages.

The Commissioner of Police claimed

• He had been sued incorrectly – the objects were, for many years, under the Court’s authority;

• Upon the termination of proceedings, he asked the plaintiff to take his belongings, yet the latter, without reason, refused;

• The plaintiff had no proof that the objects were originally in good condition before seizure;

• The co-accused had already taken his share of the objects and had not made any of the complaints that the plaintiff had made;

• If the machinery had deteriorated, this was the plaintiff’s fault for failing to ask the Court to take precautionary measures to preserve it appropriately.

First Hall, Civil Court – 22 December, 2002

The Court accepted the plaintiff’s pleas, as the defendant had not taken the required precautions, and liquidated the damages to Lm49,991 and condemned defendant to pay this amount.

Court of Appeal

The Commissioner of Police appealed particularly on the grounds that the Court

• had had complete faith in the plaintiff’s allegations that were unproved;

• had based all its judgement upon such allegations;

• did not carry out a sufficient exercise in examining the evidence;

• misapplied the law relevant to the facts.

An expert testified, showing photographs and claiming that the objects were a total loss, having no recovery value. The warehouse where they had been kept was very humid.

The defendant’s argument that he was sued incorrectly was untenable, since at no time in the proceedings was it contested that the objects were effectively deposited in the physical possession of the police. There was no doubt that the objects were in the defendant’s custody at the latter’s request during the proceedings. This was further strengthened by the fact that the Court-appointed expert had access to the objects there during proceedings.

The First Hall came to this conclusion by applying the Civil Code articles concerning deposit. The defendant claimed that such an application was incorrect. The Court confused the Commissioner of Police’s public function in the seizure and preservation of objects forming the subject of a prosecution with a civil contract.

Dimech v. Commissioner of Police et. was quoted, which stipulated that in these cases there is no contract of deposit because the obligation to preserve seized items is triggered off by Article 357 (Criminal Code): Where an officer of the Executive Police discovers any weapon, document, trace or vestige or any other thing relating to an offence, he shall take steps to establish and ensure the existence and the preservation thereof in the state in which it was found until he shall have reported the matter to the Court of Magistrates…

The Commissioner insisted that in cases like this, the responsibility does not remain with him, particularly when the person is taken to Court and when the objects seized are formally exhibited before the Court. He also claimed that the Court ignored the evidence he provided showing that all the items allegedly damaged were formally exhibited in Court and that according to law, it is the registrar who is the public officer acting under the Court’s authority who takes into custody and disposes of seized objects by court order and it is immaterial where the objects were being physically kept. The Commissioner referred to Article 671 (Criminal Code) as it was at the time of institution of the action prior to amendments:

All property of any kind connected with criminal proceedings shall remain in the custody of the registrar, and an exact description thereof shall be entered in a register to be kept for the purpose: Provided that such property may be kept in the custody of some other person, in cases where the Court shall deem it necessary so to order.

Although the items remained in the place where the Police left them, according to the Commissioner, his responsibility lasted until he reported them to the Court of Magistrates in terms of Article 357; it definitely terminated once they were eventually formally exhibited in Court. There was no contract of deposit formed, and hence he had no civil obligations imputed upon a depositary because the seizure derived from an executive power.

The Court agreed with the Commissioner and referred to the Dimech case which clearly showed how, despite the fact that the seized object remained in the Commissioner’s hands, once formally exhibited in Court, the responsibility for such fell onto the Registrar. In fact, the owner had to ask the Court’s permission to see the object that was in a police garage.

For the above reasons, the Court of Appeal revoked the previous judgement and upheld the Commissioner’s claims.