A man who had initially been sentenced to a seven-month prison term after being found guilty of cannabis possession charges was acquitted, after an Appeals Court noted serious shortcomings in the handling of evidence from the scene of the offence to trial. 

In February 2013, Elton Cutajar - 24 years old at the time - had been caught in possession of drugs whilst with another person in Għargħur. He was subsequently found guilty of numerous charges in 2023, including cannabis possession in circumstances indicating that the drug was not intended for personal use.  

An appeal was however filed, with it being argued that the procedure used in analysing the alleged substances found in the vehicle driven by Cutajar was afflicted by various shortcomings, which in turn demonstrated the failure by the prosecution to observe the principles of the so-called 'chain of custody' notion - which refers to a process used in the course of an investigation to document the handling of evidence from the scene of a crime to trial.

The facts relevant to this ground of appeal were analysed by the Court. It was recalled that two police officers had noted a Volkswagen vehicle parked within the 'Top of the World' area in Għargħur. It had been noted that the defendant and a passenger, both seated in the vehicle, looked anxious and 'as though they were hiding something', prompting the officers to speak with the individuals. 

The defendant and passenger were subsequently requested to exit the vehicle after a joint had been found on the carpet of the passenger side. Notwithstanding that a search on their persons yielded no results, a search on the vehicle revealed various items, including a pouch containing sixteen packets of suspected cannabis, seven empty plastic packets, a small grinder, as well as another joint. The individuals were subsequently arrested. 

The Court remarked that it was important to analyse the process by which the alleged drugs had been transported from the scene of the offence to the office of an Inspector. One police officer present at the scene had testified that the alleged drugs had been transported by the other officer present at the scene. Yet, it was noted that the latter had never attested to this in his witness testimony, merely stating that they had informed the inspector who in turn contacted the Drug Squad.

This, according to the Court, constituted the first shortcoming pertaining to the 'chain of custody'. It was said that if the officer present at the scene had indeed transported the drugs to the Naxxar Police Station, he should have confirmed this in his witness testimony. 

The second shortcoming, it was noted, pertained to the fact that the scientist appointed to examine the elevated substances had taken the exhibit from a case file pertaining to the finding of drugs from a Ford vehicle. Thus, as noted by the Court, it had resulted for the first time that the substances had actually been found inside a Ford vehicle, notwithstanding the repeated testimony of all officials involved that the defendant and passenger had been found inside a Volkswagen vehicle. 

The Court observed that whilst this discrepancy could have been a clerical error, such assumptions could not be made in criminal proceedings. It reiterated that legal principles require any doubt to be resolved in favour of the accused.

As a result, the Court concluded that the chain of custody in this case was compromised by serious shortcomings. The appeal was upheld, and the original sentence was overturned. Cutajar was acquitted of all charges.

Defence lawyers Franco Debono and Alfred Abela appeared for the accused.