Magistrate's absence from the scene does not void an inquiry

The Court of Magistrates (Malta), sitting as a court of criminal judicature, held on 11 February 2026 that evidence gathered in a magisterial inquiry is not lost because the inquiring magistrate did not visit the scene. Magistrate Elaine Rizzo found S.N. guilty of trafficking cocaine in 2005 and sentenced him to 11 months' effective imprisonment and a €1,000 fine. She acquitted him of three ecstasy charges from 2001, because the prosecution did not prove that the offences took place in the period charged.

The facts

The charges covered two separate episodes. In February 2005 the police arrested a man in whose flat they found cocaine. In a second statement, and on oath before the duty magistrate, he said the accused had supplied it hours earlier.

In August 2001 the police stopped another man and found more than 500 ecstasy pills on him. He told the police that he had dealt in the drug in partnership with the accused. Both men's own cases had been finally decided years before.

The Attorney General later sent the case to be tried by the Court of Magistrates under article 31 of the Dangerous Drugs Ordinance (Chapter 101 of the Laws of Malta) and article 120A(2C) of the Medical and Kindred Professions Ordinance (Chapter 31 of the Laws of Malta). Meanwhile the 2001 pills went missing from the court exhibits, and a separate inquiry did not find them.

What the court held

In both inquiries the magistrate appointed an inspector to hold the access on site and did not attend. The defence relied on article 547(1) of the Criminal Code (Chapter 9 of the Laws of Malta), under which the access is made by a magistrate. It did not seek nullity, but asked that the experts be treated as ordinary witnesses.

The court followed the Court of Criminal Appeal (Superior Jurisdiction) (8 October 2025), which held that "access" in article 547 means the inquest into the in genere as a whole, not only the visit to the scene. Article 550(5) lists what makes a process verbal regular, and the magistrate's presence on site is not among those requirements. Judgments of the Criminal Court (6 December 2022 and 12 June 2025) reached the same result.

On the experts, the court distinguished appeal judgments in which an expert had been appointed to hear witnesses on oath, which article 548(1) forbids. No law forbids experts appointed by the court to assist an inspector, and article 546(3) contemplates it.

The missing pills did not by themselves require an acquittal, because association and trafficking do not depend only on the seizure of the drug.

On the 2005 charge, the court held that supplying the drug is trafficking under article 22(1B) of Chapter 101, even if no payment was made. Under article 638(2) of the Criminal Code, the evidence of one witness, if believed, is full proof. Applying article 637, the court found the buyer credible: apart from his first, unsworn statement, he had stayed consistent for more than 20 years and had not hidden his own part.

The 2001 charges failed. The second man, testifying in 2018, said only that he and the accused had bought pills together, and otherwise did not remember. A former police officer's account of what that man told him was hearsay.

The court held that the prosecution must prove not only the offence but also that it was committed within the period stated in the charge. It relied on the Court of Criminal Appeal (30 September 2021): "sabiex tinstab ħtija din tkun trid tistrieħ fuq provi sikuri u mhux provi inċerti jew konfużi" (for guilt to be found, it must rest on safe evidence, not uncertain or confused evidence). The testimony said nothing about when the pills were bought.

For association, the court applied the three elements set by the Court of Criminal Appeal (Superior Jurisdiction) (5 December 2012): an agreement between two or more people, an intention to deal in the drug and an agreed plan of action. The testimony lacked those particulars.

On punishment, the court weighed the small amount of cocaine, the accused's role, the lapse of more than 20 years and delays partly caused by his absence. Because he had an earlier drug conviction and never asked the court to act as a drug court, it held that the law left no option but effective imprisonment. It allowed the fine to be paid at €100 a month under article 14(2) of the Criminal Code.

Why it matters

A defence built on the magistrate's absence from the scene, or on experts appointed to assist an inspector, is unlikely to exclude inquiry evidence. The stronger ground is often the charge itself. Where the prosecution fixes a period, its witnesses must place the offence inside it.

Where it sits

The in genere inquiry under articles 546 to 550 of the Criminal Code gathers and preserves the evidence of an offence. Article 546(3) lets a magistrate direct an inspector to establish the facts in theft cases, and the courts now read "access" in article 547 as the inquest as a whole. This judgment applies that reading to two drug inquiries.

On proof, the court used the single-witness rule in article 638(2), as applied by the Court of Criminal Appeal (6 January 2002), and the credibility test in article 637. On the charge as notice of when the offence took place, it followed the Court of Criminal Appeal (30 September 2021). On association, it followed the Court of Criminal Appeal (Superior Jurisdiction) (5 December 2012).

Source

Court of Magistrates (Malta), Il-Pulizija vs S.N., 11 February 2026: 660/2014