An accomplice can testify once their own case is closed

The Court of Criminal Appeal, presided by Mr Justice Neville Camilleri, on 4 February 2026 dismissed an appeal against convictions for thefts from three shops. In Il-Pulizija vs C.M., the court held that an accomplice's testimony is admissible once the proceedings against that accomplice have ended for good. It also held that struggling with police officers during an arrest is violent resistance under article 96 of the Criminal Code (Chapter 9 of the Laws of Malta).

The facts

The Court of Magistrates (Malta), sitting as a court of criminal judicature, gave judgment on 30 April 2025. It found C.M. guilty of aggravated theft and attempted theft in November 2020, of an offence against police officers under article 96, of breaching bail conditions and of recidivism. It sentenced him to five years' imprisonment and a €5,000 fine, and acquitted him of other charges.

According to the prosecution, the thefts followed one method. A female accomplice distracted the cashier while the appellant took the cash drawer. The appellant appealed on the evidence and asked, in the alternative, for a non-custodial punishment.

While the appeal was pending, the court agreed to act as a drug court and referred the appellant to the Drug Offenders Rehabilitation Board. The board closed his case as unsuccessful, and the court stopped acting as a drug court on 8 January 2026.

What the court held

The appellant argued that the accomplice was never charged with him and so never became a competent witness. The court started from the rule stated by the Court of Criminal Appeal (11 July 1997): "dak li jistqarr ko-akkużat, sia jekk bil-fomm biss u sia jekk bil-miktub, ma jagħmilx prova la favur u anqas kontra ko-akkużat ieħor" (what a co-accused states, orally or in writing, is no evidence for or against another co-accused).

That rule comes from articles 661 and 636(b) of the Criminal Code. It bars such testimony only while the co-accused's own case has not been definitively decided. The prosecuting inspector and the accomplice both confirmed that the proceedings against her had ended without appeal, so the court held her testimony admissible.

On credibility, the court held that article 637 leaves it to the court to choose which witness to believe. A witness may lie in one part and tell the truth in another, as the Court of Criminal Appeal held on 31 October 2022. The CCTV footage bore out the method the accomplice described.

The appellant also challenged an eyewitness who identified him although the thief wore a mask and clothes that covered his features. The court held that the witness had been very close to the thief, which can allow one person to recognise another. The identification was also not the only evidence against him.

The owner of the car used in the thefts testified that he had lent it to the appellant, and the accomplice's account supported him. The appellant said the car owner had his mobile phone, but the phone was password-protected and was used near the scene. The court held that the circumstantial evidence pointed in one direction.

On article 96, the court applied the test of the Court of Criminal Appeal (26 January 1999), as cited on 11 February 2013. The offence needs some unlawful force aimed at the officer, capable of causing even slight harm. The 1999 court put it this way: "Mhux biżżejjed għalhekk attakk bil-kliem, anke jekk dak il-kliem ikun iebes, inġurjuż jew minatorju" (a verbal attack is therefore not enough, even if the words are harsh, insulting or threatening).

A police constable testified that the appellant resisted arrest, and that he and the arresting officer fell to the ground until he was handcuffed. The court held that this physical contact could have harmed the officer, and so amounted to violence.

On the breach of bail conditions, the appellant argued that the court registrar had not confirmed the decree. The court endorsed the first court's view that the condition not to commit another voluntary offence is set by article 575(1)(e) itself, so no authentication was needed. An inspector's evidence showed that the earlier proceedings were still pending when the thefts took place.

No grievance was raised against the punishment itself. Applying the test of an error in principle or a manifestly excessive sentence, the court found the punishment well within the law, noting the appellant's criminal record and the failed referral to the board.

Why it matters

An accomplice whose case has been finally decided can testify for the prosecution, even if never charged alongside the accused. A defence lawyer who wants that evidence excluded must show that the accomplice's case was still open. Otherwise the contest is over credibility under article 637, and cross-examination matters.

Under article 96, a struggle during arrest is enough. Words alone and purely passive resistance are not.

Where it sits

The rule on co-accused evidence rests on articles 636(b) and 661 of the Criminal Code and on a line of Court of Criminal Appeal judgments going back to 1927, listed in the judgment of 11 July 1997. The court applied that line to an accomplice who was prosecuted separately.

Article 96 separates violent resistance from a verbal attack, which may fall under article 95(1). On bail conditions, the court cited its own judgment of 22 May 2023. On sentence, it followed the Court of Criminal Appeal (20 December 2022), which applied the test of the Court of Criminal Appeal (Superior Jurisdiction) (25 August 2005 and 15 December 2005).

Source

Court of Criminal Appeal, Il-Pulizija vs C.M., 4 February 2026: 635/2020/1