Chapter 3 Notizie Criminis

"It is the duty of the police to prevent and to detect and investigate offences, to collect evidence, whether against or in favour of the person suspected and to bring the offenders before the judicial authorities." Article 346 However many times the police act out of information given to them. Although theoretically it is not necessary for the police to receive information before they start investigating. This information arrives to police in 3 ways: 1. The report We do not have a definition of report. however our law states that any person may give information to the police of offences that can be prosecuted Ex officio of which such person has become aware. N.B. There is a very small distinction between a report and information which is that a report is information given to the appropriate authority by a person who has a legal duty of doing so. However keep in mind that under our law the ordinary citizen has no legal obligation of reporting a crime. It is usually only public officials that have such legal duty. An example of such legal obligation is when information regarding unlawful detention reaches a police officer or a magistrate who are both bound to take action and report the matter to their superiors within 24hr or be liable to a criminal offence. Police officers are also Duty bound to report Mutiny, Sedition or Desertion within the corps or be liable to criminal prosecution. Another example is the medical practitioner who in certain cases is bound to report to the police or the lawyer or Psychiatrist. One also finds that Offences against the safety of the government must be reported within 24 hrs by anyone who was aware of them even prior to attempt stage. 2. The information (Denunzja ) This is the main method by which the individual gives notice to the Police of an offence which may be prosecuted Ex Officio. Again there is no duty to give information The form Our law stipulates the form of information given to the police. Art 536 & 537 state that the facts must be stated clearly and all particulars known given along with the nature of the offence and the culprits. This information must be transcribed to written form and signed by the informer with the exception of urgent cases. These formalities are required to guarantee the authenticity of information & to ensure that informers assume responsibility for the information they give. N.B. No action shall be taken by the police upon any anonymous report or information except in the case of a flagrant offence or where the information refers to some fact of a permanent nature (Continuing offence). Complications arise when the police are given information on condition of anonymity as the defence may ask the police to reveal their source. The court can refuse the defence's request on the basis of article 520(2) which states that the court may exclude from the evidence & from the defence any information which may cause unnecessary delay or which is irrelevant or extraneous to the case.

3. The complaint (Kwerela) This is an essential element to all those offences that require the complaint of the injured party such as rape, defilement of minors & misappropriation. the police cannot act on information given to them by anyone except by the injured party in such offences. This lodging of a complaint must be done by the injured party or someone legally entitled to do so in his name such as spouses for each other and parents for their kids, brother on behalf of their sisters (vice versa) & ascendants on behalf of descendants. (Art 542)
Abdilla Vs Abdilla Ascendant may make a complaint on behalf of a descendent even though the descendant is of Age

The fact that an ascendant may lodge a complaint for a descendant does in no way preclude the descendant from filling the complaint himself even if he is a minor. On the other hand if the minor makes the complaint then the Ascendant has no right to withdraw that complaint in the minor's name. This is important when the minor's complaint addresses the parents although in such circumstances the law allows the police to prosecute Ex officio. The Proceedings proceedings that require the complaint of an injured party and are prosecuted by the injured party (Private cases) (374): 1. The complainant and the defendant shall both appear in court on the day appointed for the hearing both may be assisted by their legal counsel. In cases of contraventions, the court may exempt either party from appearing if such party has good cause. 2. If neither party appears the case will be struck off while if the complainant does not appear the defendant may demand his discharge. Never the less the complainant has 4 days within which to make an application to the court accompanied by a declaration sworn before the registrar wherein he is to give a good reason why he was unable to attend such reason must be due to illness or something equally serious and independent of his will that prevented him from appearing. The court SHALL appoint another day for the hearing. if this is not done the right of action shall lapse and no new proceeding may be instituted on the same facts. 3. If both parties appear the proceedings shall be conducted summarily and viva voce. 4. The complainant shall go first to state the facts and produce his evidence next the defendant who shall submit his defence and produces his evidence. Then the complainant replies and so does the defendant after. Proceedings instituted by the Police (375): 1. The accused shall appear on the day stipulated by the court, he may be accompanied by his legal counsel. 2. In the case of contraventions the above applies. 3. The same as above takes place but the Police of the AG will be prosecuting. Where There is required the complaint of the injured party

Where the complaint of the injured party is required the accused may , even before he is examined, demand the production of the complaint. The court may also demand the production of the complaint. However if the complaint is not demanded by the end of the Compilation of evidence stage then there is an irrebutible legal presumption Juris et de jure that the complaint exists and this cannot be challenged even if the complaint does not exist.(390(5)) Waiver of proceedings (545) Some writers argue that once a complaint has been made then it cannot be withdrawn for obvious reasons that the possibility of it being withdrawn may lead to improper pressures, bargains or transactions with the aim of stopping proceedings. However under our law the injured party may withdraw the complaint at any time before the judgment becomes res judicata, hence even at appeal stage. The effect of withdrawing the complaint would mean that the case against the accused would be dropped. When the judgment becomes res judicata noting can halt its execution. on exception existed in the past for the offence of adultery where the forgiveness of the injured party had the effect of cancelling the execution of the judgment. (abolished 1973) N.B. the waiving of a complaint amounts to the extinction of the cause of action. N.B. A withdrawal can never be subject to a condition N.B. The waiving of the complaint may be tacit, where the complainant does something which is incompatible with the desire to persist with the complaint. Police vs Alfred Debono misappropriation turned into civil debt N.B. Our law stipulates that the accused can reject the waiving of the complaint hence forging the proceeding to continue. The remedy has never been availed of. Its use is limited to when one files a frivolous complaint and the accused would want the court to decide that he is innocent. In fact our law stipulates that notwithstanding the waiver the court may if it appears that the complaint was frivolous, vexatious or made with the object of extorting, deliver judgment by acquitting the accused and directing that proceedings be instituted against the complainant. This gives the court power to order proceedings for calumnious accusation or false evidence. where however the complaint does not amount to the above two offence the court may issue a detention or fine (amenda or multa depending on the gravity) The Challenge Proceedings (541) "If, in the cases where the exercise of the criminal action is vested in the Police, the police upon receiving any information, report or complaint regarding the commission of a Crime, refuse to institute proceedings, It shall be lawful for the person who laid the information or made the report of claim to make an application to the Court of Magistrates for an order to the Police to institute proceedings."

Where the police refuse to start proceedings the complainant may ask the court to force them to. The Court will hear both parties and decide if the report or complaint is Prima Facia justified. With such application the claimant must also give a guarantee by means of a deposit or pledge which amount shall be determine by the court. There is also an appeal from the decision of the courts of magistrate's to the criminal court. The complainant has 7 days after judgment to appeal. The AG has also 7 days, but they run from the time that the decision of the court of magistrates was served to him. The law stipulates it should be served to the AG within 2 working days from the judgment by the court. Gaffarena Vs Commissioner of Police a very interesting case. the court of Magistrates found that the offence of fraud did not result but another offence did and so the court ordered the police to prosecute the other offence. The AG learnt of the decision only 3 months after and immediately filed an appeal. The criminal court upheld the appeal on the grounds that the court of magistrates may only uphold complaints which were brought before it and since only the complaint of fraud was presented it could only order the police to prosecute for fraud. 1. The commissioner cannot be challenged for a crime that was not originally mentioned in the report, information or complaint 2. The right of appeal of the Ag is not prejudiced by the fact that the decision of the court of Magistrates is not notified to him within the period established by law i.e. 2 working days. N.B. One notices that the article refers to CRIMES only and to all Crimes which are not classified as private in nature i.e. where the prosecution lies with the police not the complainant.