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Court must be morally convinced charges admitted to actually exist

By July 10, 2022November 24th, 2023No Comments

The Court when faced with a guilty plea must be still convinced that the charge actually exists. This was held by the Court of Criminal Appeal on 1 July 2022  in The Police -v- George-Cristian Mandrescu. The Court was presided over by Judge Edwina Grima.

Mandrescu was accused of aggravated theft of jewellery from a couple in Santa Venera in November 2015 and that he was a recidivist. He was condemned to 21 months’ imprisonment

The Magistrates Court found Mandrescu guilty of theft, but not of being a recidivist.

The Attorney General appeals from the case stating that the court is to find Mandrescu guilty of being a recidivist and therefore, asked the court to increase the punishment.

The Court pointed out that Mandrescu had admitted to both charges, the aggravated theft and of being a recidivist. The Magistrates’ Court held that from the documents exhibited, they were not translated into English and still were in Romanian and therefore, the court could not take cognisance of these documents. However, the Court of Appeal held that only part of these documents were in Romanian. Those translated confirmed that Mandrescu had three previous convictions. The documents was dated 21 October 2016, six months before Mandrescu was charged of the theft, which was committed on 19 November 2015. Mandrescu was brought to Malta following a European Arrest Warrant.

The Court held that caselaw showed that recidivism is a stand-alone charge and must be proven independently from other charges. It must be proved beyond reasonable doubt. The Court quoted from Il-Pulizija -v- Jason James Agus decided on 5 Novdmber 2001, which held that the prosecution should present the official judgement and proof of identity. If this is not presented then the charge of recidivism is not proved. In another judgement Il-Pulizija -v- Joseph Zahra decided on 24 February 2003, the Court explained that although a police criminal record may be taken into consideration when passing judgement, an official copy of the judgement is required when there is a charge of recidivism.

The Attorney General argued that accused had admitted to all the charges and therefore, irrespective of the evidence, he should have been found guilty of both charges. The Court of Criminal Appeal disagreed. The Court must be morally convinced that the charges being admitted to actually exist. On the other hand, the Court of Criminal Appeal disagreed with the Magistrates’ Court that the charge of recidivism was not proved beyond reasonable doubt. The documents presented were official documents issued by the Ministry of Administration and Interior of the Republic of Romania and was sent to the official authorities in Malta. Mandrescu’s identity details were also listed in the documents. The Court of Criminal Appeal held that there is sufficient evidence that Mandrescu was convicted in Germany, Austria and Belgium.

Article 49 of the Criminal Code allows authenticated documents to be admissible in Court. It is authenticated if the document is signed by a judge, or by a Ministry, department or authority or else taken on oath.

In this case there are 3 conviction in March 2010, May 2014 and August 2015 and were filed in the language of those countries Mandrescu was processed.

These documents were not contested by the accused, who was assisted by a lawyer. The accused was allowed time to reconsidered his guilty plea.

The Court of Criminal Appeal pointed out that it is not clear what the convictions consisted of, although Article 49 may be applied and therefore, rendering Mandrescu a recidivist.

The Court did not increase the punishment since it applied its discretion in terms of Article 50 and 289 of the Criminal Code.

The Court then moved to uphold the Attorney General’s appeal, but did not increase the punishment.

Av Malcolm Mifsud

Partner

Mifsud & Mifsud Advocates

The article is available on MaltaToday