THE ATTORNEY GENERAL’S LONG SHOT IS ALREADY DEAD
By Maltese Canadian
The Court of Criminal Appeal is built to leave most jury acquittals in place. That design, and the facts of the Yorgen Fenech trial, make a successful challenge futile.
The legal test is narrow on purpose. Article 500(4) of the Criminal Code lets the Attorney General appeal an acquittal only in limited cases. There must have been a grave irregularity during the proceedings. Even if the court finds such a point, it may still dismiss the appeal. It can do so if it decides that no miscarriage of justice occurred.
The court cannot say the jury weighed the evidence wrongly. That job belongs to the jury alone.
In practice the test is rarely met. Recent appeals by the Attorney General against jury acquittals have failed. That happened even when prosecutors pointed to alleged misdirections or excluded evidence. The 2020 cannabis-smuggling case and the 2025 Portelli drug case are typical. The appeals court treats the nine jurors as the tribunal of fact. It is reluctant to second-guess an 8–1 majority reached after 55 sitting days and eight hours of deliberation.
The main legal ground now discussed is weak. The prosecution is expected to regurgitate Herman Grech of The Times of Malta’s argument that Judge Edwina Grima was wrong to keep the jury from hearing that Fenech had applied for a presidential pardon. That was a classic ruling on relevance and prejudice. It was made after argument. Appeals courts normally defer to such rulings. They intervene only if the ruling is clearly wrong in law and changed the outcome. The defence can argue the opposite. Telling the jury about rejected pardon applications would have been prejudicial speculation as I pointed out in an earlier article. A three-judge panel is unlikely to treat one contested evidentiary call as a grave irregularity that tainted an 8–1 verdict.
The new allegations about jurors face the same high bar. Police are looking at possible public comments. However, the oath of impartiality was taken. They are also looking at one suspected use of a phone by a reserve juror during sequestration. Pre-trial comments are common in a small country. This case dominated the news for years. The oath and the judge’s repeated directions existed for a reason. Jurorswere assumed to have had prior knowledge but they had to put it aside. They had to decide only on the evidence in court.
An isolated case of phone use is not enough on its own. The reserve juror didn’t vote and he had the judge’s permission to make the phone call. Mid-trial, the judge already looked at a similar problem with court tablets. An expert checked browsing histories. The judge refused to dissolve the jury. Discoveries after the verdict of possible individual breaches rarely meet the test. They must amount to a grave irregularity that had a bearing on the verdict. That is a high hurdle after a long, sequestered and closely supervised trial.
An 8–1 split is not a close result. The judge’s summing-up stressed the burden of proof and reasonable doubt. The appeals court cannot retry the credibility of the witnesses. It cannot retry the financial evidence. It can only look for a legal defect that probably changed the outcome. That is a high bar after two months of testimony.
Stop pretending; this acquittal is going nowhere. Article 500(4) is a wall, not a door. The trial court had the “voir dire,”the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury. The prosecution slept. It’s too late now. Popular outrage is not a point of law. The verdict is robust. The appeal is theatre. Fenech’s acquittal will stand. Prosecution, plan accordingly: Eight to one. Get over it.