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Criminal liability can only be imposed if the formal and material conditions exist concurrently

By September 25, 2022November 30th, 2023No Comments

The prosecution must prove that both the material element and the formal element of the crime existed at the same time for a person to be held criminally liable.

This was held by the Court of Magistrates on the 15th September 2022 in the judgement Il-Pulizija vs Omissis and Joseph Muscat.

The Court was presided over by Magistrate Nadine Lia.

The defendant was accused of causing grievous injuries to Mr Gilmore Cachia, when he attacked the victim while he was trying to run away from the accused.

The defendant together with others, allegedly tried to drag Mr Cachia inside their car to beat him up.

During his statement, the accused explained that whilst he was in the car, he saw a third person fighting with Mr Cachia in the road.

He approached them to try and break up the fight but did not touch Mr Cachia. The third person corroborated the defendant’s statement and outlined that he was not involved in the attack.

However, the victim, Mr Cachia, reiterated that the defendant was one of the persons who attacked him.

As a result, the Court was faced with two contrasting versions, the victim’s version where he put the responsibility solely on the accused, and the accused’s version who declared that he was not involved, corroborated by a third person who admitted to the charges related to this case.

This judgement outlined that the Court must always follow the law regarding the degree of proof required.

Moreover, the prosecution must always prove according to the degree provided for in the law, for both the material element and the formal element of the offence in question.

This does not mean that the prosecution should prove the constitutive elements of the offence to the degree of absolute certainty, but always to the degree of beyond reasonable doubt.

The Court quoted from Il-Pulizija vs Marco Farrugia, Kevin Galea and Marcel Mizzi decided by the Court of Appeal (Inferior Jurisdiction) on the 31st May 2001, which held that like any other crime, it is not enough that only the material element is proved.

The prosecution must also prove beyond reasonable doubt, the formal element which existed at the same time as the material act.

The general conditions of criminal responsibility are indicated with sufficient accuracy in the old legal maxim, actus non facit reum, nisi mens sit rea.

The act alone does not amount to guilt. It must be accompanied by a guilty mind. There are two conditions to be fulfilled before criminal responsibility can rightly be imposed.

The first condition to be satisfied is the material condition, the actus reus. This is the doing of some act by the person to be held liable.

A person is criminally responsible only for those wrongful acts which he does either wilfully or negligently.

Only in these circumstances, the act is accompanied by mens rea.

The second condition is the formal condition, the mens rea with which the act is done. It is not enough that a person carries out some act which, on account of its mischievous tendencies or results, the law prohibits.

Before a person is held criminally liable, an enquiry must be made into the mental attitude of the doer.

Although the act may have been materially or objectively wrongful, the mind and will of the doer may have been innocent.

If these two conditions do not exist concurrently, the person will not be held criminally liable. In fact, in this judgement, the Court was convinced that the prosecution did not prove its case according to the degree of proof required in criminal proceedings, i.e., proof beyond reasonable doubt.

Respectively, the Court did not find the defendant guilty of the accusations made against him and acquitted him of all charges, while refraining from considering him as a recidivist, given the acquittal of the first three accusations.


Av Malcolm Mifsud

Partner

Mifsud & Mifsud Advocates

The article is available on MaltaToday