The Court of Magistrates has upheld a request for a case to appear before the Constitutional Court so as to determine whether the replacement of a disgraced court-appointed expert Martin Bajada at the start of the trial is in breach of the fundamental right of a fair hearing.

A trial by jury of two men facing drug trafficking charges was due to start on June 1. However, proceedings were halted at the very beginning as there were questions raised about Mr Bajada's credentials following a judgement handed last April which tarnished the expert's integrity.

Since the judgement, a number of defence lawyers objected to Dr Bajada's testimony from being used in their respective cases.

At the start of the trial of Austine Uche and Kofi Otule, presided by Judge Justice Antonio Mizzi, the defence referred to the ruling of April 29 by the Court of Appeals to back the request for the removal of the report compiled by the experts. The prosecution, however, pre-emptied this move and on 23 May, they asked the Judge to get an expert to oversee the report to see if there are any irregularities.

However, the defence objected as the defendants failed to notify the Attorney General's request to replace Mr Bajada, therefore denied the opportunity to file a reply on this regard.  

The defence argued that this move was in breach of the fundamental right of a fair hearing of its clients, and so filed an application requesting the Constitutional Court to investigate the issue.

Magistrate Neville Camilleri upheld the defence's request arguing that the issue is not frivolous and vexatious.

The defence of the trial is led by lawyers Franco Debono, Mario Mifsud and Alfred Abela for Mr Otule and Dr Joe Mifsud appeared for Mr Uche.

On July 2, 1993, Dr Bajada had pleaded guilty before a London court to 10 counts of theft to the detriment of Air Malta and was handed a two-year suspended sentence. Kingston-upon-Thames Crown Court documents show that he had stolen €59,000.

When three private individuals learnt that Dr Bajada had a criminal record involving the falsification of documents, they filed a request for Dr Bajada's report on calligraphy to be removed from the records of their civil case.

On April 29 of this year, Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, sitting in the Court of Appeal, upheld the request.