QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE TEARE
|COURT OF MAGISTRATES, MALTA||Defendant|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Miss G Lindfield (instructed by CPS Special Crime Division) appeared on behalf of the Defendant
Crown Copyright ©
"Mr Haynes visited Malta over a number of years and in 1999 returned there to live and run a business. It is alleged that on the evening of 10th May 2003, Mr Haynes was the driver of a vehicle which collided with and overtook a car being driven by a man called Joseph Attard. Mr Attard was accompanied in his vehicle by his wife, Maryanne Attard, and a friend David Shephard. Mr Haynes stopped his vehicle in front of Mr Attard's vehicle. All four people got out of their respective vehicles. It is alleged that Mr Haynes physically attacked Joseph and Maryanne Attard and David Shephard by punching and kicking them. As a result David Shephard suffered a contusion of the brain and a fracture of the eighth rib close to the spleen which resulted in internal bleeding. Joseph Attard received facial injuries comprising bruising on the forehead and a 1 cm laceration over his left eyebrow which required stitching. Maryanne Attard sustained bruising to her forehead.
Mr Haynes was arrested and trial proceedings were commenced in May 2003. Mr Haynes was present and legally represented throughout the trial proceedings. Initially he was remanded in custody for about three months. At one of the court hearings in July 2003 he was granted bail on conditions, one of which was the surrender of his passport. The prosecution case was substantially completed when, in April 2006 and prior to the defence case commencing, Mr Haynes chartered a yacht and absconded from Malta in breach of his bail and abandoning his passport. He made his way through Italy to France where he obtained an emergency passport from the British Embassy in Paris and came to the UK."
Abuse of Process
"As the charge sheet indicates and as attested by the records of the sitting of the 16th May 2003, the charges proffered against Haynes were amended. Under Maltese law, when an amendment is made on the face of the records, the amended text (be it a correction, a substitution or a deletion of words/phrases) must still remain visible. The charge sheet indicates an 'ø' which denotes that the charge was amended by the words that follow. It has always been understood and thus reproduced in the warrant that the words which were added were 'grievous bodily and of a slight nature' in substitution of the word 'slight'. Since the sentence makes no reference to another insertion (denoted by another similar symbol) it appeared that the sentence added was meant to refer to both. This understanding was further strengthened by the fact that at the end of the charge the articles of the penal code referring to grievous bodily harm (214, 216) were listed and I quote 'in breach of articles 214, 216 and 221' referring to the injuries committed on both Mr and Mrs Attard!!
Nowhere in the charge sheet does it appear that the offence of grievous bodily harm committed could have been attributed solely in respect of Mr Attard and not in respect of both. Indeed, had the amendment been drafted differently this misunderstanding would never have arisen. Nor would I have so vehemently argued in defence of this fact. Should it have meant to indicate that the words 'and of slight nature' were meant to be introduced immediately before the words 'Maryanne Attard', an indication similar to what had just been done with respect to Joseph Attard ('Ø') was, in my humble opinion, undoubtedly in order. In fact from a grammatical point of view it appears inconceivable that, taking in consideration how it has now transpired that it was meant to read, with the reproduced amendment the wording is 'and . . . of slight nature on Maryanne Attard'; what now seems to be the word 'on' was hitherto perceived to be close inverts (").
The charge sheet which has been exhibited in no unclear manner bears witness that this was an honest mistake attributed by the manner in which the charge sheet was amended and had it not been for the request for clarification by your authorities from the Court of Magistrates, this fact would not have become known to me although admittedly it was known to the relevant court who has possession of the court records since 2003 and thus, from the evidence tendered (also in the UK authorities' possession!) could also verify from the testimonies and documentation including medical certificates exhibited in the course of the said proceedings, the reading which the amendments were purported to convey. I can attest that I only learnt of this mistake upon reading the Magistrate Padovani's communication of the 11th November 2008."
That explanation is, in part, a little difficult to understand, but the difficulty is increased by the fact that the court does not have before it the charge sheet either in its original form or in its amended form. I recall seeing those documents on the occasion of the previous hearing before the Divisional Court, but neither side has thought fit to produce them for today's hearing and Mr Butt has made clear that he does not rely on those documents in his submissions.
"It has always been conceded that Mr Haynes was properly charged with grievous harm of David Shephard and that that was an extradition offence. Secure in that knowledge there would be no logical reason for the Maltese Authorities to act in breach of their legal and international duties and obligations to deliberately lie and mislead the requested court in respect of the less serious alleged assaults on the Attards. Having read Dr Dimech's reasons as to how the misreading of the amended charge sheet arose and having seen the photocopy of that charge sheet I entirely accept that it was a genuine and unfortunate error and that there has been no deliberate attempt by any Maltese Authority to mislead this court in order to obtain Mr Haynes's extradition to face a charge which the authorities knew not to be an extradition offence."
Passage of Time
"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping and between them they would cover all cases where to return him would not be fair."