The defences of crime of passion and insanity, sometimes coupled with intoxication, are the most common defence pleas in domestic violence murder cases, according to leading criminal lawyer Joe Giglio.

The cold-blooded murder of Chantelle Chetcuti, 34, which took place earlier this month, sparked a national outcry on domestic violence. Her former partner, a 33-year-old man from Safi, pleaded not guilty. His lawyers asked the court to appoint a psychiatrist to examine the accused.

Women’s rights activist Lara Dimitrijevic even noted that “There was no passion in any of this. And shame on you for saying so. Women are victims of violence from men, men that continue to feel superior, entitled, privileged.”

The Malta Independent on Sunday analysed previous cases of domestic violence which led to murder or attempted murder, to identify how these pleas were used, and if they were accepted.

Crime of passion does not eliminate criminal responsibility

A crime of passion is, by law, one of the ‘cases of excusable wilful homicide’, which means it can be used as an ‘excuse’ or defence.

The law defines this as “… any person acting under the first transport of a sudden passion or mental excitement in consequence of which he is, in the act of the crime, incapable of reflecting.”

Giglio explained that, during a crime of passion, the mind of the offender is not acting in such a way that is logical or lucid. It should be noted that, for crimes of passion, the law still stipulates, on conviction, that the offender shall be liable to imprisonment from five to 20 years. The law also provides some limitations to this defence.

Crimes of passion do not eliminate criminal responsibility, unlike insanity, but diminishes it, resulting in a reduced sentence.

In 2004, a jury had found 23-year-old Marco Zarb from Birkirkara guilty of trying to kill his then-girlfriend, 27-year-old Georgina Borg, on 24 June 2001. Zarb threw Borg off a three-storey balcony and, according to his statement, went down to try and strangle her after seeing she had survived the fall. As a result of the incident, Borg is wheelchair-bound for life. The jury declared this to be a crime of passion.

Intoxication alone not a defence 

Giglio noted that intoxication, as a defence, is limited because the offender needs to be intoxicated to the point where he does not have the mental capacity to form the intent to carry out the crime. The intent to carry out a crime is necessary for a crime.

Intoxication, which refers to both drugs and alcohol, is only considered a defence if the accused is incapable of understanding the crime, and if the intoxication was not caused by himself. It is also considered a defence if intoxication results in insanity.

One example where intoxication was used as a defence along with insanity was in the case of David Norbert Schembri, although the defence plea was not accepted.

Back in 2004, Schembri had given himself up to police after stabbing his partner, Josette Scicluna, 49 times during a quarrel. His daughter watched helplessly on as he murdered her mother.

Schembri had shot open the door of Scicluna’s flat, claiming he wanted to collect a few things. He was drunk and used Scicluna’s knife to kill her, the one she had been holding for self-defence.

In this case, four psychiatrists were appointed by the court to assess Schembri's mental state and found he was completely sane. One of the psychiatrists had said that during her examination that Schembri told her that he had problems in his relationship but when he was younger, he had never had psychological problems and had a relatively normal childhood.

He also told her, however, that he had a drug and alcohol problem. She had also said his attention and his behaviour were normal and he cried whenever he remembered about Scicluna.

Schembri’s mother had told them that she always had doubts about his behavioural problems. She said he never had mental problems but was very shy.

Childhood problems, a justification for murder?

A recent article issued by other sections of the media, giving details of the accused in the recent murder of Chetcuti, was received badly by many, saying that it humanised the accused as if this was meant to justify his behaviour.

The article notes that some depicted Borg as a “good guy”, and that, however, it is known that Borg had a problematic relationship with his mother growing up, spending most of his time with his father as a youth.

One comment on social media read “It's like he killed her because they had a toxic relationship and he was going through a tough time. Other than that, he was a great guy lol!”

Giglio noted that for someone to reach the point of murder, something must be wrong, but a troubled background does not justify murder. For insanity, he said, what could be relevant is, for example, if the troubled background includes a mental history.

The accused still has to satisfy the requisites of insanity, including disease of the mind, which is not related to a troubled background, he said. The defence would need to satisfy that the person could not be held criminally responsible because of insanity.

In March 2019, an Appeals Court revoked a six-month prison sentence that had been handed down to a man who tried to strangle his wife with a mobile phone charger. Kevin Galea had, in 2008, tried to strangle his wife after he started suspecting that she was seeing another man. He had been found guilty of attempted murder and domestic violence.

His lawyers had appealed, asking the court to revoke the prison sentence and to take into consideration the fact that he had committed the crime when suffering from a mental condition, and needed medical assistance. Galea’s prison term was changed into a suspended sentence.