In the Court of Magistrates

As a Court of Criminal Judicature

Hon. Magt. Dr. Jacqueline Padovani Grima LL.D. LL.M. (IMLI)

The Police
(Insp. Simon Galea
Insp. Kevin Farrugia)

vs

Tristan Scott Haynes

(Diff: 4th November 2009)

Note of submissions of the accused Tristan Scott Haynes.

Respectfully submits:

That the defence has been authorised by this Honourable Court to file this note of submissions in
reply to the note of submissions presented by the prosecution and the parte civile on the 21st October
2009.

That the defence respectfully submits that in this note of submissions it intends to prove to this
Honourable Court that the accused is not guilty of the charges levied against him in these proceedings
and that the prosecution did not prove its charges against the accused beyond reasonable doubt.

That for a better appreciation of this note, the defence will divide this note of submissions into several
sub-headings, and will thoroughly explain to the Court why, according to its humble opinion, the
contradictions and inconsistencies found in the prosecution‟s evidence and the evidence presented by
the defence shows that the accused did not commit the offences he is being charged with and thus
should be declared not guilty.

That the sub-headings will go through the whole incident that occurred on the night of the 10th May
2003 at the Coast Road in Bahar ic-Caghaq, from the moment of the car accident in which Joseph
Attard‟s Ford Sierra and the accused‟s Fiat Punto collided, to the fight between Joseph Attard and the
accused, the alleged injuries sustained by David Shepherd, the fight with Ruben Briffa till the moment
when all the parties involved left the scene of the incident.

The Car Accident

That the defence submits that although the charges against the accused regarding the car incident have
since the beginning of these proceedings been dropped, the defence will summarily make submissions
regarding such incident in order to highlight the impossibility for the Court to find the accused guilty
beyond reasonable doubt according to the contradictory testimonies given by the prosecution‟s
witnesses, and to the opinion of the Court appointed experts in the inquiry in genere.

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That in order to try to determine exactly how such accident happened and in order to better
understand the exact position, location and series of events which have ultimately led to the current
proceedings, the defence will produce a timeline, as produced in Court by all the parties involved to
show that there are severe inconsistencies between what has really happened and what has been
produced in Court by the prosecution.

That it is agreed that a car incident involving a Ford Sierra, bearing registration number CAD 914,
driven by Joseph Attard and a Fiat Punto, bearing registration number IMP 099, driven by the accused,
has occurred on the night of the 10th May 2003, at the Coast Road in Bahar ic-Caghaq in the direction
of the Saint Julians.

That however, from the outset, it is highly difficult, if not impossible, to ascertain with uncontested facts
how such incident occurred, and what led to such incident.

That the Court appointed experts, Dr. Edward Zammit Lewis and AIC Valerio Schembri have
produced and submitted to this Court for the prosecution a detailed account of testimonies and two
site-plans marked „A‟ and „B‟ respectively as illustration of the incident sites. Map A, shows the site
indicated by the accused and witness Ruben Briffa to the experts as to where the incident occurred,
and Map B, shows the site indicated by Joseph and Maryanne Attard.

That it is safe to say that the most credible of the two sites indicated for the accident must be Map A, as
Joseph Attard and Maryanne Attard have declared their inability to establish the correct location of the
incident, basing their argument merely on the supposed finding of Maryanne Attard‟s sunglasses in the
location. Whereas the accused, Ramona Rodenas and Ruben Briffa have always indicated Map A as
the correct location of the incident corroborating each others testimony.

That however particular attention has to be drawn on the drawing of Map A. In fact, the defence
submits, that this map incorrectly depicts „Double White Lines‟ giving the dynamics of road use as a
two lane road. This inaccuracy on the part of AIC Valerio Schembri is very important to establish how
the incident occurred and if believed may corroborate the injured parties‟ contradictory testimonies, as
these have stated that Joseph Attard did not cross the medium line in his failed attempt to overtake the
accused‟s car.

That the prosecution has been proved wrong on many accounts regarding this particular situation.
First, AIC Valerio Schembri has claimed that the accused was present for the onsite inquiry, yet
Superintendent Simon Galea confirms that the accused was not present and was at that moment under
preventive custody in the Police Head-Quarters. Secondly, and more importantly, the accused submits
that AIC Valerio Schembri was wrong in ascertaining that the medium line in the road was a double
white line, and this according to AIC Audrey Testaferrata de Noto, who at the time of the incident was
head of unit of the National Infrastructure Directorate at the Malta Transport Authority (ADT), and
has testified on the 22nd May and 5th June 2009 that the medium line is today and was at the time of the
incident a single continuous white line, and has also stated that the only occasion when a double white
line is marked as a medium line is when both sides of the road contain dual carriageways, that is two
lanes going up and two lanes going down, and that part of the Coast Road never had four lanes.
Moreover within the dual carriageways there must be lane dividers, which lane dividers have never
existed in this particular section of the road. Therefore AIC Testaferrata de Noto concluded that there
was never a double white line in that area of the road.

That this implies that being a single lane no overtaking should occur in that particular area of the road,
the reason being that the road is not wide enough to permit four lanes (two dual carriageways). In fact

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photographic evidence presented in Court by AIC Joseph Bugeja on the 4th May 2009 marked XJB3,
XJB4 and XJB5 clearly indicate that for a „safe‟ overtaking manoeuvre in that area a car attempting to
overtake must obligatorily cross the medium single continuous white line and for a few instances drive
in the opposite lane, resulting in a clear breach of the Motor Vehicle Regulations.

That it is a fact that Joseph Attard has attempted to overtake the accused in that area and that therefore
it can be ascertained with certainty that Joseph Attard has committed a dangerous and illegal overtaking
manoeuvre, which it has to be highlighted to the attention of the Court, has occurred late on the
Saturday night of the 10th May 2003, endangering the lives of the passengers of his own car and of those
in the car driven at the time by the accused.

That the accused submits that Joseph Attard knows about this and has attempted many times in Court
to make believe that he did not cross the single continuous line and drive on the opposite lane, in fact
he has stated under oath that his overtaking manoeuvre occurred within the same lane, without him
crossing the medium continuous line. However, in his testimony Joseph Attard has stated that before
attempting to overtake the accused‟s car he saw that there were no cars coming from the opposite lane
and that he overtook the accused‟s car within the same lane.1 At this stage the accused asks, why did
Joseph Attard feel it necessary to ascertain that there were no cars coming from the opposite direction,
if he could overtake the accused‟s car with relative ease within the same lane? Joseph Attard‟s own
admission at checking that there were no cars coming from the opposite direction prove unequivocally
that he did cross the single continuous medium line and that he did drive for a few instances in the
opposite lane thus contravening Motor Vehicle Regulations and endangering the lives of everyone
involved.

That notwithstanding the above, Joseph Attard has also stated that he had tried a number of times to
overtake the accused‟s car and failed, clearly confirming the danger Joseph Attard was putting everyone
involved in at that time of the night. He also states that he was not in any particular hurry to go back
home, however this is particularly strange, as a person with no hurry whatsoever would not engage in
such a risky and dangerous manoeuvre and would not even attempt to overtake cars which are driving
in front of him.

That moreover all the injured parties have given testimony as to how the accident allegedly occurred.
On various occasions these witnesses have given differing accounts as to what actually happened,
contradicting each other, and many a times contradicting their own version of the events.

That Maryanne Attard, has stated that before the impact, “As we were going up I felt like a brake. I
told my husband “What happened Joe?:” He said “nothing happened”.” This particular moment is
confirmed by Mary Shepherd who states “As we drove past the Splash and Fun, Joseph Attard sort of
braked and said “nothing happened” and we kept driving normally”. Joseph Attard also confirms that
he previously attempted to overtake the accused‟s car without success:

“Court: So at first you were moving exactly behind each other, there then was that brake
and you had to stop by force otherwise you would have crashed into him.

Joseph Attard: Exactly well said”

This was also confirmed by Ramona Rodenas who stated that at a certain moment she heard the sound
of a brake before the accident, and by the accused. Therefore this shows that Joseph Attard had

1
Joseph Attard’s testimony on the 16th May 2003.

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previously tried to overtake the accused‟s car, and that after another attempt to overtake he hit the
accused‟s car.

That however there are different versions as to how the impact occurred, who was to blame for such
car incident, and as to who overtook whom.

Joseph Attard stated that they were driving up the Coast Road and that there was traffic in the lane they
were driving in. He stated that he attempted to overtake the accused‟s car when both of them braked,
because had they not braked they would have crashed into each other. Then when Joseph Attard was
apparently sure that there were no cars coming from the other side and that there was enough space to
overtake he went to overtake, and the cars hit each other. He goes on to state that at the moment of
impact the accused overtook him again and then they both came to a stop in the middle of the road.
Asked as to whether he could establish whether it was he who bumped into the accused‟s car or vice-
versa, Joseph Attard stated that he could not say with certainty.2

Therefore Joseph Attard stated that he managed to overtake the accused‟s car. However his version is
not corroborated by his wife Maryanne Attard and David Shepherd. In fact when she gave testimony to
court expert Dr. Zammit Lewis, Maryanne Attard stated that the overtaking did not succeed,3 David
Shepherd, argued that when there was enough space for Joseph Attard to overtake the accused, the
same Joseph Attard lit on the indicators and swerved to the right trying to overtake the accused,
however there was the impact and Joseph Attard did not overtake the accused.4

Mary Shepherd goes to the extent of stating that at a certain point Joseph Attard did overtake the
accused and, “this Punto vehicle which was now behind us kept pressing behind and started to hit the
side of the Sierra vehicle and he overtook us again and came in front of us.” 5 It is important here to
note that none of the other witnesses have claimed that at any certain point the accused was chasing
Joseph Attard‟s car, and that proves the extent to which these persons have stretched their version of
events in order to make believe that the accident was all fault of the accused and not Joseph Attard‟s.

Moreover whilst Joseph Attard stated that there was just a small bump on the rear of his car, Mary
Shepherd and Maryanne Attard both state that the accused started hitting their car on the side
repeatedly. Mary Shepherd‟s testimony and Maryanne Attard‟s testimony are both false as apart from
the fact that Joseph Attard‟s testimony does not agree with theirs, the Magisterial Inquiry does not
provide any evidence of damage in the side of Joseph Attard‟s car.

David Shepherd also goes to the extent to state that he saw the accused make a manoeuvre in the
direction of Joseph Attard‟s car, whereas it is the same Joseph Attard, who was driving the car, who
stated that the accused was driving in a straight line in front of him, and the same Joseph Attard could
not ascertain who was to blame for the accident.

That at this stage the defence submits that it is really strange that a person with 42 years of driving
experience doesn‟t know who is to blame for the incident when it is widely known that the moment a
driver has an accident with another car he would know for sure whether it is his fault or the other
driver‟s fault. In fact the defence suggests that Joseph Attard knows too well who is to blame for the
incident, and that is himself.

2
Joseph Attard testimony 16th May 2003
3 th
Maryann Attard testimony 19 May 2003 (a fol 161)
4 rd
David Shepherd testimony 23 September 2003
5 th
Mary Shepherd testimony 19 May 2003 (a fol 173)

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That the defence submits that the injured parties version of events is not credible as it was not possible
from their seating position to see what they claim to have seen. This is because since Joseph Attard‟s
car came from behind the accused‟s car passing over the road separation medium line into the lane of
oncoming traffic alongside the accused‟s car, whose bonnet would be lower than the windows of Joseph
Attard‟s vehicle, especially considering Joseph Attard‟s judgement of passing just a foot and a half away
from the accused‟s car, meaning that when the Sierra driven by Joseph Attard was alongside the
accused‟s car and once the seating position of the injured parties in the Sierra had passed the point of
the windshield of the Punto, this car would no longer be visible to them.

David Shepherd, who was the rear seat left hand passenger would have had the longest and last view of
the incident. But as the impact damage on the Sierra was on its left side rear wheel arch and on the
Punto on its right side front wheel arch demonstrates unmistakably that the impact happened behind
the passengers in the Sierra and also out of their field of vision. Therefore the defence submits that
David Shepherd‟s statement that he saw the Punto of the accused crashing into the Sierra6 is
inconsistent.

That on the other hand the accused has always stated that whilst they were driving up the road, the
Sierra driven by Joseph Attard first held a big brake, and then after some more driving attempted to
overtake the Punto driven by the same accused, by crossing the medium line on the lane of oncoming
traffic and when Joseph Attard tried to go back in the proper lane he hit the Punto with his Sierra in
exactly the same places indicated as damaged in the Magisterial Inquiry. At that point Joseph Attard
went back in the proper lane behind the accused and stopped, blocking the road to oncoming traffic.
When the accused saw that the car that had just hit his car stopped, he stopped achieving a distance of
approximately twenty-five feet, which distance results also in the testimonies of the injured parties and
the measurements taken by AIC Valerio Schembri in the inquiry.

That the version of events as stated by the accused has been corroborated by Ramona Rodenas and
Victoria Mifsud who were accompanying the accused in his car and such version has never been
challenged by the prosecution or the injured parties. To a certain extent, amidst all the contradiction
even the injured parties corroborate the accused‟s version of events.

That therefore the defence submits that it is clear that it was Joseph Attard who caused the incident and
damage through his illegal and dangerous driving from his failed overtaking attempt. Had Joseph
Attard actually overtaken the accused and then immediately stopped from the collision as he and
David Shepherd declared, this would have then in fact forced the accused to stop in a position right
behind him. It is not credible for the injured parties to claim that the accused overtook their car to then
immediately stop. If someone is stopping why does he need to overtake to stop? It seems obvious that
the Sierra had to have stopped first thus blocking the road and obstructing the flow of traffic, in order
for the resulting distance to be achieved between both cars.

That the defence respectfully submits that the injured parties are clearly unable to take responsibility
for their actions. Joseph Attard has put other road users in danger by reckless driving but his wife and
friends are willing and capable of trying to defend the actions of their relative and friend by presenting
various inconsistent versions to a Police investigation and on Oath before the expert in the Magisterial
Inquiry and before this Honourable Court.

6 rd
David Shepherd testimony 23 September 2003

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The Fight between Joseph Attard and the Accused

That in this part of its submissions the defence will show to this Honourable Court the contradictions
in the various testimonies provided by the prosecution in determining the series of events that have led
to the charges of grievous bodily harm on the person of Joseph Attard against the accused and it will
argue that the accused should not be found guilty of this charge as the accused engaged in lawful self-
defence.

That the defence submits that this particular moment of the whole incident has four situations which
have to be discerned in order to try to make a logical and chronological frame of how this incident
happened.

That the first situation occurs right after the car incident and the moment in which Joseph Attard and
the accused come out of their respective cars. As this Honourable Court shall see the injured parties‟
testimonies relating to this event are contradictory and insufficient evidence for the prosecution to
prove its charge.

In his testimony to the Court Expert in the Magisterial Inquiry Joseph Attard states that when he
stopped with his car, he saw the accused coming out of his car in front of him, and at that point he tells
the passengers riding in his car to stay there and also told his wife “Hallieh f‟idi” (“Leave him in my
hands”). He then went to „speak‟ to the accused and asked him why was he driving in that manner
when he had two disabled persons in his car. At this point the accused did not answer and punched
Joseph Attard in his left eye. At that stage the accused threw Joseph Attard on the bonnet of the Sierra
and continued punching him. At that point Joseph Attard stated that he tried to defend himself by
trying to hit the accused here and there without succeeding He then states that David Shepherd and his
wife Maryanne Attard came out of the Sierra and tried to stop the accused, however David Shepherd
was supposedly hit by the accused and fell down unconscious on the road.

That the defence respectfully submit that Joseph Attard‟s testimony is full of contradictions. In fact on
various occasions he contradicts himself and the other injured parties contradict what was stated by
Joseph Attard.

In his testimony in front of this Honourable Court, Joseph Attard denies ever telling anyone in his car
“Hallih f‟idi” and actually tells three different versions at different times of what he supposedly told the
other passengers in his car. It is to be noted that the words “Hallieh f‟idi” are synonymous with
aggression in Maltese everyday language, and the fact that he asked the accused as to why was he
driving in that manner show that Joseph Attard did blame the accused for the incident and that his
frame of mind at that time was far from calm as he tried to make the Court believe. In fact by using
that language Joseph Attard clearly shows that he was very angry at that particular point of the accident
and no matter how much he later tried to make it look that he was calm in that situation, the evidence
given exactly moments after the incident go to show that Joseph Attard‟s attitude vis-à-vis the accused
was aggressive.

Another fact is that Joseph Attard has admittedly not checked the damage sustained to his vehicle after
the incident but went directly to face the accused. The defence submits that under normal
circumstances, the normal behaviour of a calm person who has just been involved in a car accident
would be to check for the damage sustained by his vehicle and not go directly to face the other person.

In his testimony the accused has always stated that the first thing he did when he came out of his car
was to check the damage sustained by the Fiat Punto he was driving and then he went to speak to

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Joseph Attard regarding insurance and damage. However, the accused states that it was Joseph Attard
who came angrily charging at him, caught him in a headlock and punched him in the nose, and when
the accused tried to free himself from Joseph Attard, by managing to put his hand on Joseph Attard‟s
face, the same Joseph Attard bit the accused on his finger, and when he managed to pull free the
accused did punch Joseph Attard in his face as a form of self-defence as Joseph Attard still was
aggressive with the accused.

Joseph Attard has always stated that he did not attack the accused, but during his testimony, and when
pressed by the defence, Joseph Attard admitted that he did try to give some blows here and there and
that „it could be‟ that he bit the accused. This shows that Joseph Attard started his testimonies stating
that he never touched the accused and tried to make believe that this was all the doing of the same
accused, whereas in later versions of his story he tried to play down his involvement in the fight.

The defence humbly submits that when two persons fight, there is a normal give and take of blows and
it is not credible that Joseph Attard just stood there to take the blows of the accused, and moreover as
regards to the version of the accused, it is corroborated by the cerficate of Dr. Bernard Flores Martin
(a fol 776 and 777) which clearly states that the accused on the 10th May 2003, had “…two linear bruises
(4cm) horizontally over right lower abdomen, three linear bruises over left nape of neck, small scratch
over right side of nose bridge, abrasions over right knuckles (patient right handed), small LCW over tip
of left little finger…”

This shows that the whole altercation between the two persons was not a one man show, but that
Joseph Attard did inflict some damage on the person of the accused. And whereas the accused has
always stated that he did in fact punch Joseph Attard, the same Joseph Attard has always denied
touching the accused and instead invented all sorts of different versions, which undermine his
credibility and the credibility of the other prosecution‟s witnesses.

In fact whilst the accused has always confirmed his version of events, Joseph Attard has given six
different versions as to what happened at that particular moment of the evening. In fact, Joseph Attard
claimed that the accused had a fist whilst walking towards the Sierra and he immediately:

Version 1: Got punched in his left eye and while fighting back he was thrown on the bonnet;

Version 2: Got hit three times for sure when he sort of lost consciousness and fell on his bonnet
for 2 seconds;

Version 3: The accused kept on hitting, Joseph Attard tried to hurl a blow here and there but
could not see, and that he hit the defendant maybe just once;

Version 4: With the first punch he landed on his bonnet;

Version 5: The first punch was near his mudguard and from here onto his bonnet;

Version 6: The second hit he was standing still and normal.

All these different versions give rise to a series of situations:

1. Joseph Attard claims that the accused approached him with a clenched fist and in another
testimony he claims that he might have bitten the accused. The defence here submits that it is

7
 not possible that the accused had a clenched fist when it is the same Joseph Attard who states
that he might have bitten the accused‟s finger;

2. Joseph Attard claims, in one of his testimonies, that after receiving the first punch from the
accused he landed on his bonnet. The defence submits that it is impossible for the accused,
who weighed 69 kilogrammes at the time of the incident, with a single punch to send Joseph
Attard who weighed around 100 kilogrammes landing on the bonnet of his car, when on his
own admission the altercation occurred around nine feet away from the Sierra.

3. In his last version of this incident Joseph Attard also states that on the second punch he was still
standing still on the ground, thus contradicting his own previous testimony and his latest
testimony that after the first punch he landed on the bonnet of his car.

4. Joseph Attard also stated that after being hit three times for sure, he lost consciousness and fell
on his bonnet for 2 seconds. If this were to be true then how could it be that in the first version
he states that after the first punch he kept on fighting back and was then thrown on his bonnet?

This leads to another series of questions:

1. Joseph Attard has stated that he lost consciousness after receiving the first blow from the
accused and that he was actually thrown on the bonnet of his Sierra. Then how can it be that he
managed to remain on his bonnet, considering that in his last testimony he stated that it was his
head that made the dents found on his bonnet? It is widely known that a person that loses
consciousness is not able to stay with his feet firmly on the ground, and Joseph Attard has never
stated that he fell on the asphalt of the road and moreover dents on the bonnet are not the
logical result of such a big body making such a big impact on the bonnet of a car. Had Joseph
Attard been really thrown by the accused, there would not be just dents on the bonnet but the
bonnet would have been damaged beyond repair.

2. Joseph Attard stated a number of times that he was bleeding profusely from his left eye. Then
how come did the Magisterial Inquiry find no accumulation or transfer of blood on the bonnet
in the amount Joseph Attard is trying to make this Honourable Court believe?

3. Joseph Attard has also testified that David Shepherd and his wife Maryanne Attard came out of
the Sierra to hold the accused, in a first instance, in a second instance he states that he saw
David Shepherd trying to hold the accused and did not see his wife being hit by the accused, in
a third instance he states that before he went running around his car he had blood in one eye
and took out his handkerchief and heard David Shepherd say “leave my friend”, and did not
see his wife, and in a final version he states that he did not see his wife but merely found David
Shepherd lying on the ground blurred in front of the Sierra.

If Joseph Attard really did fall unconscious after receiving the alleged blows from the accused,
how could he know that David Shepherd came to separate him and the accused in the manner
he has described and if he did fall unconscious then how could he know whether he was
thrown on the bonnet or fell on the bonnet and finally how could he have fled round his car
when he was unconscious?

That the defence submits that regarding the alleged loss of consciousness by Joseph Attard the
following constatations have to be made. Prosecution witnesses Ruben Briffa, Saviour Briffa, Mariella
Briffa and Tania Briffa have all stated that when they arrived on the scene, which was after the

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beginning of the fight, and when, according to the injured parties the accused was done with Joseph
Attard and allegedly performing his aggression on Maryanne Attard and David Shepherd, they saw the
accused still fighting with Joseph Attard in front of the Sierra. None of these witnesses ever stated that
they found Joseph Attard unconscious, or that he was thrown on the bonnet or that he was being
beaten by the accused. Moreover not even Maryanne Attard, David Shepherd or Mary Shepherd ever
state that Joseph Attard lost consciousness during the altercation.

That the defence submits that medically Joseph Attard could not have fallen into an unconscious state.
In fact Dr. Sawinski Wojgdek in his testimony on the 16th May 2003 states that Joseph Attard suffered a
bruise on his forehead and a 1 centimetre lacerated wound over his left eye-brow, and never did Dr.
Wojgdek mention that Joseph Attard spent some time unconscious or that he was recovering from
concussion. This results also in the medical certificate presented by the prosecution.

Joseph Attard also stated that while on his bonnet, and before escaping around his car, he heard
Ramona Rodenas from the Fiat Punto scream “Stop It, Stop It”. This is also false as it has been argued
by the same Ramona Rodenas, Maryanne Attard and Saviour Briffa that Ramona Rodenas shouted
those words when the fight between Joseph Attard and the accused was already finished and during the
incident with Ruben Briffa.

That the defence respectfully submits that Joseph Attard is also not credible when he gives accounts on
the way he allegedly fled from the grasp of the accused and ran behind his car. In fact here again
Joseph Attard produces six different versions of what he did, saw and heard:

Version 1: “I escaped with the defendant still chasing me around his car where I found Mr.
Shepherd on the ground.”

Version 2: When he tried to escape passing from behind his car while the accused was running
after him he does not know during the time if the defendant went for anyone else. He
personally did not see what happened to David Shepherd.

Version 3: “After being hit three times I escaped with the Defendant chasing me, on the other side
and after the Defendant had finished with Mr. Shepherd he then grabbed me again on
the other side.”

Version 4: “Before I went running around my car I had blood in one eye so I took out my
handkerchief and heard Mr. Shepherd say “Leave my friend”

Version 5: “I sawn Mr. Shepherd on the floor blurred I was in the front of the Sierra, I did
nothing”

Version 6: “I tried to escape but he did not give me a chance he tried to hold me and hit me.
That‟s all I remember”

That the defence respectfully submits that a thorough interpretation of the different versions of that
particular moment as explained by Joseph Attard show that his testimony is inconsistent also at this
particular point of the incident. In fact the defence submits that it is highly improbable, if not
impossible, that a person who is being hit and fleeing around his car finds the necessary time to pull
out a handkerchief from his pocket to wipe the blood on his face. It is also inconsistent that Joseph
Attard states at different moments that he fled around his car, that the defendant chased after him, that
when he came back to the side of his car he saw David Shepherd lying on the ground and that he

9
finished his run in front of the Sierra again. This implies that either David Shepherd never fell on the
ground as it is impossible for his friend to literally jump over his lying body to return to the front of the
Sierra, or else that Joseph Attard did not really flee around his car and that he saw everything that
happened to David Shepherd after that particular moment, which Joseph Attard has always stated that
he did not see what happened to David Shepherd.

That therefore the defence respectfully submits that the above shows that Joseph Attard‟s various
testimonies are inconsistent and contradictory. The defence is of the humble opinion that Joseph
Attard knows that the accused is saying the truth and that all fault of the whole incident should be
attributable to him, and like many a times in front of this Honourable Court, the „injured party‟ tries to
conjure a story to exonerate himself from any form of responsibility, with the logical consequence that
the „injured party‟ doesn‟t even agree with his own version of events.

Add to the contradictions and inconsistencies in Joseph Attard‟s testimonies, other prosecution‟s
witnesses give a different testimony as to how things really evolved in this particular situation.

In fact David Shepherd states, contrarily to what Joseph Attard stated, that Joseph Attard first checked
the damage in his car and then went to talk to the accused, when it was the same Joseph Attard who
admitted to not looking at the damages sustained by his vehicle.

Moreover David Shepherd states that Joseph Attard had to walk five or six metres to reach the
accused, and tried to confirm the theory that Joseph Attard was sprawled on the bonnet when he came
out of the car which is in contradiction. Moreover, when asked on which bonnet Joseph Attard was
sprawled, he could not answer.

In his latest testimony David Shepherd also states that when he (David Shepherd) went out of the car,
he checked the damage sustained by Joseph Attard‟s vehicle when at the same time Joseph Attard was
already sprawled on the bonnet. In his previous testimony, David Shepherd claimed that he had to
walk to reach Joseph Attard and the accused and see what they were saying to each other and
confirmed that they were talking.

David Shepherd also states that he saw his friend Joseph Attard “butchered”, and “like a skinned
rabbit”, with his face full of blood, when the medical certificate shows that Joseph Attard only suffered
a one centimetre lacerated wound, surely not a cut that would fill a face with blood.

That the defence submits that particular mention has to be made at this stage regarding all testimonies
given by David Shepherd. It is to be respectfully brought to the attention of this Honourable Court that
David Shepherd has provided this Court with all sorts of varying, inconsistent and contrasting accounts
as to what happened on that 10th May 2003 night. He did not remember in Court when Police
Superintendent Simon Galea and Court expert Dr. Zammit Lewis interviewed him in hospital after the
incident, and has provided testimony in front of this Court which the defence humbly submits that
lacks credibility and is inconsistent.

The Incident concerning Maryanne Attard

That the defence submits that although the charges against the accused relating to the alleged slight
injuries sustained by Maryanne Attard during the incident in question, the defence shall briefly make
submissions regarding this particular incident in order to reveal more inconsistencies in the testimonies
of the prosecution‟s witnesses.

10
That the defence humbly submits that when giving account of what happened to her during that
evening Maryanne Attard provides three different versions as to what happened on that night.

First, in the testimony given during the Magisterial Inquiry Maryanne Attard states that when she saw
her husband, Joseph Attard and the accused fighting she also went out of their vehicle to stop the fight
but this person (the accused) hit her on the forehead. In a second instance, in her first testimony in
front of this Honourable Court, Maryanne Attard claims that she told the accused “what happened?”
and that David Shepherd told him “Leave my friend alone”, and then the accused supposedly punched
her once. When the Court asked Maryanne Attard to indicate where she had been hit, Maryanne
Attard pointed to a bruise she had under the left eye. In her final testimony, Maryanne Attard changes
her version again, this time stating that she was elbowed, and not punched, by the accused in her left
eye, and when asked whether she presented a certificate in Court regarding her eye injury she
answered positively and also stated that she had blood coming out, whilst stating that she was not dizzy
after the „attack‟ on her person.

That the defence respectfully submits that her account of this particular situation is implausible for the
following reasons:

1. The doctor who examined Maryanne Attard after the incident, that is Dr. Sawinski
Wojdgek of the St. Luke‟s Hospital Casualty Department, presented a medical certificate in
this Court, which certificate is dated 10th May 2003, that is exactly after the incident, stating
that Maryanne Attard did not sustain injuries in her left eye, but merely had bruises on her
forehead. This was also confirmed on oath by Dr. Wojgdek when he gave testimony in
Court on the 16th May 2003 and stated “Mrs. Maryanne Attard was found suffering from a
couple of bruises on her forehead.” Therefore there is no indication as to eye injuries and
even more on lacerations which would result in Maryanne Attard losing blood.

2. There is conflicting evidence regarding whether Maryanne Attard was supposedly punched
or elbowed by the accused. It is highly improbable that in an incident, that a person would
remember for all his life, being the victim of an aggression, there is confusion by the injured
party as to whether she was punched or elbowed. Moreover, if she was punched then
Maryanne Attard would have to be standing in front of the defendant, whereas her
husband, Joseph Attard stated that the accused would not let go of him, and if she were to
be elbowed then she would have been standing behind the accused. Moreover, the defence
submits that considering the heights of the accused and of Maryanne Attard, it is impossible
for the accused to have elbowed Maryanne Attard, as for that to be achieved, the accused
would have to encroach himself and adjust his height in order to hit the same Maryanne
Attard with his elbow.

3. Finally, it is hard to believe that Maryanne Attard could have remained conscious after
being punched or elbowed by the accused. If Joseph Attard and David Shepherd were
unconscious due to the attack of the accused, how did Maryanne Attard remain conscious
and even managed, on her own admission, to take back the accused to his car?
That the defence humbly submits that something so significant as a woman being hit could never be
forgotten or be declared to have happened in two distinctively different manners. Moreover, the other
prosecution‟s witnesses were on site at the time of the alleged aggression to Maryanne Attard. However
none corroborate her version of events:

Joseph Attard: states that it was his wife who told him that the defendant hit her, he has
always sustained that he never saw his wife being attacked by the

11
 accused, and adds that, “Now if he hit her accidentally or not I do not
know to be honest”;

David Shepherd: makes no reference whatsoever to any of Maryanne Attard‟s versions

and contradicts her completely. First, and very importantly Maryanne
Attard does not figure in any account tendered by David Shepherd. The
defence respectfully reminds this Honourable Court that it has been
alleged by Maryanne Attard that the accused attacked her before David
Shepherd and that at that moment they were both standing in front of
the accused. Thus had something really happened to Maryanne Attard,
the defence believes that David Shepherd would have testified about it
in Court;

Mary Shepherd: she was in the front passenger seat of the Sierra and thus had the whole
vision of the incident in front of her. However, Mary Shepherd has
stated in Court that she saw the accused punching Joseph Attard, but
does not mention either Maryanne Attard being hit by the accused, and
she also states that she just saw her husband (David Shepherd) on the
ground without seeing the accused assaulting him. Moreover, she states
that she saw Maryanne Attard being hit but could not establish who hit
her.

That the defence respectfully submits that this part of the testimony of Mary Shepherd is very
important in corroborating the version of the accused regarding the whole incident.

In fact the accused has always stated, that when the car accident occurred, both cars stopped and the
accused went down to check the damage sustained to the Fiat Punto. While he was checking for
oncoming traffic for the safety of everyone Joseph Attard charged from behind and the fight between
them started. When Maryanne Attard and David Shepherd in the Sierra saw what was happening, and
Ramona Rodenas heard the screams of people fighting, these persons went out of their respective cars
and tried to divide Joseph Attard and the accused.

At this point, the defence has never stated that Maryanne Attard was not hit, in fact the defence
sincerely believes that during the melee, with people trying to separate Joseph Attard from the accused,
she got hit on her forehead. However, she might have received her blow either from the accused or
directly from her husband. When a fight like this breaks out, there is normally a huge commotion and
blows fly in all directions. It is also a known fact that most of the time the people trying to divide
persons fighting get hit. In fact, Ramona Rodenas has testified that she also received some hits during
such melee.

That is also to be submitted that some of the prosecution‟s witnesses corroborate the version of the
accused and Ramona Rodenas. In fact Joseph Attard‟s statement that the accused might have hit her
accidentally and Mary Shepherd‟s claim that “Maryanne Attard also went to separate them but she also
got hit, although I did not see who hit her”, is further proof that there was really a melee and two of the
persons involved could not identify who hit Maryanne Attard in the commotion.

That therefore the defence humbly submits that even regarding this incident the prosecution has
contradicting arguments which continue provide serious arguments against the credibility of its
witnesses, a vital factor in proving their case beyond reasonable doubt. At the same time these
witnesses corroborate the defence‟s version of the events.

12
The Alleged Grievous Injuries Sustained by David Shepherd

That the defence respectfully submits that it has been alleged by the prosecution that after giving blows
to Joseph Attard and Maryanne Attard, the accused turned to David Shepherd and gave him blows
with his fist and legs, in such manner that David Shepherd lost consciousness, sustained a fractured rib
and was even in danger of losing his life. The defence will hereby explain how the prosecution‟s
version of this incident is not credible and that what really happened to David Shepherd on that night
cannot be ascertained from the various testimonies.

That according to David Shepherd in his testimony dated 23rd September 2003, the incident occurred
in this manner:

After the car accident Joseph Attard first went down to see his car and saw the accused approaching, so
Joseph Attard went to speak with the defendant. At that point David Shepherd went out of Joseph
Attard‟s car checking for the damages sustained by the Sierra. He then decided to see what they
(Joseph Attard and the accused) were saying, and after walking five or six metres (or more), with “the
movements of Bruce Lee, Kung Fu, hitting, bum bum bum bum” he saw his friend “skinned like a
rabbit”, with blood “that his face could not be seen”. At that point he told the accused “stop hitting
him”. The accused in that instant turned on David Shepherd doing the same “Kung Fu” movements
giving David Shepherd two blows in the head, making him dizzy, he turned suddenly, raised his legs
and kicked him in the chest three times. Asked by the prosecution as to what happened after that,
David Shepherd declared that he did not know because he lost consciousness.

Under cross-examination on the same day, David Shepherd changed his version, and stated that
Joseph Attard he saw Joseph Attard sprawled on the bonnet of a car. He could not remember which
car it was and then he stated that when he interjected and told the accused to leave his friend alone, the
accused hit him in the head, turned suddenly and kicked him in the ribs and in his belly.

During the same cross-examination, David Shepherd, contrarily to what he had just stated, said when
he went out of the car Joseph Attard and the accused were speaking and he went near them to see what
they were saying. Asked whether he saw them talking, first he answered positively, and then he said that
he saw the accused punching Joseph Attard. When asked again whether he went to listen to what they
were saying, he stated that “No I went to fight then! I went for boxing then!” Immediately after claiming
that he walked five or six metres to see what Joseph Attard and the accused were saying, David
Shepherd again contradicts himself by stating that at that moment Joseph Attard was already sprawled
on the bonnet, covered in blood.

In his last testimony on the 16th of September 2009, although not remembering most of the incident,
however David Shepherd stated that, “While Mr. Attard was on the bonnet the Defendant turned to
me…He turned like a kung fu fighter and raised his leg and kicked me in the face by the cheeks and
several punches with a fist on my chest and punched me in the face and I fell.”

That the defence respectfully submits that a first glance at the different versions given by David
Shepherd regarding his involvement with the accused show how contradictory and inconsistent his
testimony is.

That the defence respectfully submits, that apart from the inconsistencies David Shepherd has stated in
relation to the incident between the accused and Joseph Attard, severe inconsistencies as to what

13
happened to him with the accused are to be found in explaining the dynamics of how the incident has
occurred and when and where David Shepherd was hit.

That the defence humbly submits, that a person who has been through the ordeal as explained by
David Shepherd would never forget exactly where and how he was hit. David Shepherd gives four
different versions of where and how he was allegedly hit by the accused:

Version 1: David Shepherd was hit twice in the head and then the defendant spun around and
kicked him three times in the chest.

Version 2: David Shepherd was hit once in the head and then the defendant spun around and
kicked him in the ribs and belly.

Version 3: David Shepherd was kicked in the face by the cheeks (where in this moment in front of
the Court David Shepherd indicated his right cheek) and suffered several punches with
a fist on his chest and face.

Version 4: This is the version given by David Shepherd to Professor Godfrey Laferla, who at the
time was Chairman of the Department of Surgery and Consultant surgeon at St. Luke‟s
Hospital. Prof. Laferla on the 22nd April 2004, when he testified in Court stated that
“when he (David Shepherd) was admitted he was actually fully conscious and therefore
he was able to give a history and he had said that he was allegedly involved in a fight and
he was injured over the back of his head, which is called the octsput, he alleged that he
was also kicked hard in the left flank and was complaining of gastro pain at that stage
and was also complaining of headache.”

That the defence humbly submits that all these contradictory versions of the injuries sustained by
David Shepherd‟s version of events can never be accepted as true. The reason being that for injuries
like the ones David Shepherd allegedly sustained a person who says the truth about the incident would
never confuse or give different accounts of the injuries sustained. It follows that if David Shepherd is
not credible when describing his injuries, he certainly cannot be credible when describing the incident
and the alleged actions performed by the accused on his person.

That the defence submits the other prosecution‟s witnesses have also given their version as to the
events that led to David Shepherd losing consciousness, however in the same contradictory fashion as
they did in all other situations of the incident.

Joseph Attard, in his various testimonies, has always shied from entering into the merits of the alleged
injuries perpetrated on David Shepherd by the accused. He just stopped at stating that he saw his wife,
Maryanne Attard and David Shepherd, get out of the Sierra, whilst he was taking blows from the
accused, and saw them trying to hold the accused while he went round his car. However, it seems really
strange that while Joseph Attard went running behind his car, and thus not unconscious, he could not
have seen either his wife being hit by the accused or else the whole „butchery‟ that the accused allegedly
performed on David Shepherd.

Moreover, in his latest testimony, Joseph Attard states that the accused went running behind him
around the Sierra, so how can it be possible that the accused massacred David Shepherd and at the
same time was running after the same Joseph Attard?

14
Maryanne Attard on the other hand tries to corroborate David Shepherd‟s testimony by confirming
that the accused punched and kicked David Shepherd. However, every time she gives a new testimony,
she states something new, which she never stated before. First she states that she saw the accused
kicking David Shepherd twice on the left side, the second time she states that the accused punched and
kicked David Shepherd, and the third time she gave testimony, Maryanne Attard states that the
accused punched and kicked David Shepherd, who lost consciousness and fell on the ground and then
the accused started kicking David Shepherd again while he was on the ground unconscious. Add to this
the accused started also jumping around as if challenging people to fight him. Moreover she states that
during this whole time both David Shepherd and herself were talking to the accused stating phrases
like “Leave my friend alone” and “Why are you doing this?”

That the defence humbly submits that Maryanne Attard‟s testimony is not credible as she is clearly
trying to exaggerate a situation which according to other witnesses it either did not happen or else they
just didn‟t see this action. This, in the humble opinion of the defence, is clearly a person who is trying
to sound convincing in her explanations, however when all the explanations given are compared to
each other they are either exaggerated or impossible to believe. The mere fact that while her husband
is allegedly being hit and has blood coming out and their best friend (David Shepherd) is unconscious
on the ground, it is highly improbable that Maryanne Attard could have spoken to the accused and
asked explanations as to why he was behaving in that manner. Moreover, she stated a number of times
that after all this she escorted the accused to his car together with Ramona Rodenas.

That the defence respectfully submits that incidents like these are highly charged encounters in which it
is not credible that people talked to other people in a colloquial fashion like Maryanne Attard and
David Shepherd have stated to have done.

That Mary Shepherd also gave testimony on what allegedly happened to her husband (David
Shepherd). The defence submits that sitting on the front passenger‟s side in the Sierra, Mary Shepherd
was in the best position to see actually what happened during the whole incident.

However, in her initial testimony in the Magisterial Inquiry, Mary Shepherd never mentions that David
Shepherd was kicked by the accused. She does mention kicks and punches by the accused in the
direction of David Shepherd only when she testifies in Court, trying as much as possible to make her
testimony to be very close, if not identical, to Maryanne Attard‟s testimony. In fact in her first Court
testimony, Mary Shepherd states that whilst she did not see the accused punching or kicking David
Shepherd, she states that she saw the accused hurling David Shepherd to the ground, and then kicking
David Shepherd while he was motionless on the ground.

That Mary Shepherd also stated that the accused threw her husband to the ground, which in the
humble opinion of the defence is simply not credible, for the same reason why it is not credible that
the accused threw Joseph Attard on his bonnet.

Moreover, in her last testimony dated 9th July 2009 Mary Shepherd starts exaggerating the whole
incident and suggests also that the accused tried also to kick Joseph Attard. The defence humbly
submits that in all preceding sittings and testimonies, not one of the witnesses ever alleged that the
accused tried to kick Joseph Attard. In her latest testimony, Mary Shepherd tried to put bad light on
the accused and many a times contradicting her own previous testimonies and of the other witnesses.

That the defence respectfully submits that particular mention has to be made to the latest testimonies
of Maryanne Attard and Mary Shepherd. In fact the defence would like to point out that during their
depositions both Maryanne Attard and Mary Shepherd appeared to be confusing and contradicting the

15
testimonies they had previously given to the Court. This is highlighted by the fact that the Honourable
Magistrate has for a number of times asked both Maryanne Attard and Mary Shepherd to tell the
Court the exact story of how the incident occurred since they were being very contradictory in their
statements. The defence respectfully submits that considering the seriousness of the charges against the
accused their testimonies should be discredited, because they do not prove the prosecution‟s case
beyond reasonable doubt.

That the defence respectfully submits that there is only one particular moment, in a previous
testimony, when Mary Shepherd states that during the fight in front of the Sierra, her husband slipped
and fell on the left hand side of the Sierra, thus confirming that it may have been that after all the
accused did not perform those actions on the person of David Shepherd.

That therefore the defence respectfully submits that the other witnesses version of the events that led to
the injuries sustained by David Shepherd are too contradictory and inconsistent to prove the charge of
grievous bodily harm against the accused beyond reasonable doubt.

That this is also confirmed by the testimony of Ruben Briffa, Saviour Briffa, Mariella Briffa and Tania
Briffa. All these witnesses have stated that they when they arrived on the scene David Shepherd was
already on the ground, whereas the accused was fighting with Joseph Attard.

The defence respectfully submits that it is true that at that particular point the accused was still fighting
with Joseph Attard because there was never a fight between the accused and Maryanne Attard and
David Shepherd. The only altercations of that night were between the accused and Joseph Attard and
between the accused and Ruben Briffa. Joseph Attard stated that he fought only once with the accused,
and this implies that at that moment David Shepherd was already on the ground unconscious, but this
does not imply that David Shepherd fell on the ground unconscious because he was felled by the
accused.

That the defence humbly submits that according to the testimonies by all injured parties David
Shepherd suffers from epilepsy. However, the defence is not going to argue that during the commotion
David Shepherd suffered an epileptic fit as Professor Godfrey Laferla (a fol 687 et seq) stated that
when David Shepherd was admitted to hospital he was not found in the ectal state following an
epileptic fit. However, it is possible that during the melee David Shepherd tried to divide Joseph Attard
and the accused from fighting and fainted. It is a known fact that persons suffering from epilepsy tend
to faint when being emotionally charged, and such a fight suggests that David Shepherd was
emotionally charged at that moment. Moreover, the same Professor Laferla stated in Court that:

“Usually when you have multiple injuries in different sides of the body, well they are either
compatible with blows of injuries from a fight or from a fall, because that is the way you can
actually get injuries on different sides of the body.”

That the defence respectfully submits that the injuries sustained by David Shepherd according to the
medical records were that he suffered from a small contusion on the left side of his head, which was of
no significance, and a possible fracture of the eight rib on the left side.

That these injuries corroborate the defence‟s theory that David Shepherd may have procured those
injuries when falling heavily on the hard and cold asphalt of the Coast Road after fainting. David
Shepherd may have fallen after fainting with a hefty thud which could have broken his rib and Comment [RR1]: Fracured
procured the contusion on his head. Otherwise there could be another explanation as to how David
Shepherd‟s rib has been fractured. All the prosecution‟s witnesses, including Ruben and Saviour Briffa

16
admitted that they man handled David Shepherd while he was unconscious to the ground, put him in
the car and drove him to hospital.

The defence respectfully submits that it is widely known as dangerous to man handle unconscious
persons who are lying on the ground. The people who have man handled David Shepherd are not
trained first aid professionals, and it common that man handling an unconscious person without the
necessary expertise could result in damage being inflicted on the person, the most common being rib
fracture.

That the defence submits that during these proceedings the accused has admitted of having performed
martial arts in his childhood. David Shepherd has stated in his testimony that the accused performed a
reverse spinning back kick on him. However, the defence respectfully submits that the accused has not
performed martial arts for the last 25 years, and it is to be noted that after such a long period of time of
inactivity no one would have the physical suppleness or dexterity of skill required to perform the most
demanding kick in the repertoire of martial arts. After a period of years of inactivity a person who in
the past had the flexibility required to perform martial arts, would not have the same flexibility, thus
making the kick mentioned in this paragraph impossible to perform.

That however the defence would like to point out certain issues relating to the kick allegedly dealt to
David Shepherd:

1. If the accused was really a seasoned martial arts expert at the peak of his sport, how come he
reserved his kicks just for David Shepherd and did not use such kicks against Joseph Attard,
Maryanne Attard or Ruben Briffa?

2. On the night of the incident the accused was not wearing shoes but open-toe sandals.
Therefore if he did perform a kick, he would lose his sandals, something which did not
happen.

3. Moreover, wearing open sandals would imply that had he kicked David Shepherd bruising
would have occurred on the accused‟s feet. In fact there was no such bruising, abrasion or cuts
on the accused‟s feet and toes, and this according to the medical certificate presented in Court
and according to the medical tests carried out by the Corradino Correctional Facilities doctors,
when the accused was remanded in custody.

4. Both Maryanne Attard and David Shepherd testified that the same David Shepherd received
from two to three kick from the accused. However, the defence would like to point out that it is
highly impossible that the accused has delivered two to three kicks in the same place
consecutively. This is because when a person gets hit, the first normal reaction would be to
encroach and not remain in the same stationary position. Therefore if there ever was a first
kick, then it would be almost impossible for the second and third kick to hit David Shepherd in
the exact same place where the first blow was dealt.

5. Finally, and most importantly, David Shepherd suffered a fractured rib. However, according to
Professor Godfrey Laferla, there was no bruising in this particular area of David Shepherd‟s
body. Therefore the defence respectfully submits that this injury would therefore be caused by
something precise in dimension to target this specific rib only. It could not be the leg or the
foot which are much wider than one rib. The impact from a kick would leave reddening or
bruising on a wide area bigger than that of the zone. David Shepherd had medically none of
these normal characteristics.

17
That the defence respectfully submits that there are many conflicting scenarios presented by the
prosecution which are not in harmony with each other. In reasoning with the possibilities of all of these
scenarios the defence has endeavoured to extract enough of the truth to endorse the accused‟s
innocence.

Ruben Briffa

The defence humbly submits that even though the charges against the accused relating to the incident
with Ruben Briffa have been dropped, it is paramount to make submissions on the role of this person
and of his family members who witnessed the incident in question, namely Saviour, Mariella and Tania
Briffa.

That according to Ruben Briffa, they arrived on the scene when David Shepherd was already lying
unconscious on the ground, that there were two women (Maryanne Attard and Ramona Rodenas)
outside screaming and shouting and there were two men (Joseph Attard and the accused) fighting in
front of the Sierra. He recognised a person by sight knowing that his surname is Attard (Joseph
Attard)…

“…Then the accused stopped fighting with Mr. Attard and came to hit Mr. Shepherd the one
whom I had picked up to his feet from the ground as the defendant came near me, Mr.
Shepherd was still in my hands. I told him „leave him‟, in the meantime I pulled him aside a bit
to avoid the blow, then two women took Mr. Shepherd and I grasped the defendant and
pushed him telling him „leave him, he is an old man‟, he replied „fuck you‟, he grabbed me
under his arms and hit me, I escaped and took a stone to defend myself but I could not endure
since I was feeling my teeth knocked off. I threw it in the defendant‟s direction then I boarded
my vehicle and left.‟

That according to Saviour Briffa, Ruben Briffa‟s father, there was a „big man‟ (Joseph Attard) who his
son did not recognise, fighting with the defendant and there were two ladies:

“When we arrived the fighting stopped, everything calmed down, the defendant left Mr. Attard
when he saw my son lifting Mr. Shepherd up and leaned him against the Sierra. My son said
nothing to him and the defendant said nothing. I was shoulder to shoulder with my son and I
expected to receive a blow myself. The Defendant grabbed my son in headlock and punched
him once. I pulled my son away from him, and my son who was completely confused was
searching to see what he could find to defend himself, he found a piece of soil that when you
throw it disintegrates. The defendant came after us in the direction of our car, because we were
far away from the white Sierra. The defendant returned back when he saw my son furious
biting his fist with blood running down his mouth, my son threw the soil in front of him to the
ground. Then we left.”

That according to Tania Briffa, Ruben Briffa‟s wife, things happened in a different way:

“There was a man on the ground and on the other side there were two men fighting. My
husband went to pick up Mr. Shepherd and lifted him up straight against the Sierra car and at
that moment my husband got hit…I saw him move back only…I don‟t know I was 2 cars
behind…I just saw him giving one blow to Ruben…I did not see my husband biting his fist or

18
 looking for or holding or throwing a rock… I then saw my husband with blood as he
approached our car we then drove off to the clinic.”

That Mariella Briffa, Ruben Briffa‟s sister stated that:

“There was a man on the ground and two men fighting…My brother picked up Mr. Shepherd
and put him near his Sierra car…My brother said nothing to the defendant who I saw only
punch my brother in the teeth. My brother did not pickup a stone or throw anything, as he was
approaching our car the defendant chased after to assault my brother again so we shouted at
the defendant and he left with his car.”

That the defence respectfully submits that although it does not agree with the latter versions of their
testimony, these witnesses have all corroborated the accused‟s testimony that:

1. There was only one fight between Joseph Attard and the accused. These witnesses illustrate
that whilst Joseph Attard and the accused were fighting David Shepherd was already
unconscious on the ground, and on Joseph Attard‟s own admission he fought only once
with the accused. This corroborates the accused‟s testimony that he did not touch David
Shepherd, as whilst he was fighting with Joseph Attard, the Briffas had already arrived on
the scene, and from then on the argument with Joseph Attard and the rest in the Sierra
stopped, and it became an argument between the accused and Ruben Briffa;

2. Tania Briffa confirms that the argument between the accused and Ruben Briffa occurred
next to the Punto, which is two cars in front of their own, and not next to the Sierra. This
implies that the accused and Ramona Rodenas were right when stating that at that point the
fight had stopped and Maryanne Attard helped Ramona Rodenas take the accused back to
the Fiat Punto.

That the defence respectfully submits that regarding the argument between the accused and Ruben
Briffa, Mary Shepherd declared in her testimony that, “I saw Mr. Briffa with blood on him, he came to
help me poor man, to lift my husband in the Sierra car.” This testimony proves that Ruben Briffa did
not go immediately to help David Shepherd but had the argument with the accused first. In fact his
face is with blood, and thus this indicates that the whole fight was already over and Ruben Briffa went
to help putting David Shepherd in the car.

That the defence respectfully submits for correctness sake that it is not possible that Ruben Briffa
leaned an unconscious David Shepherd with the Sierra. David Shepherd,, being unconscious was a
dead weight, and therefore if leant with the Sierra he would have definitely fallen again to the ground. It
is more plausible in this circumstance to believe Mary Shepherd, that Ruben Briffa went to help after
fighting with the accused, and thus the fight was over.

That the defence again for correctness sake submits that as to the version given by Saviour Briffa that
his son threw in the direction of the accused “Soil that disintegrates”, it was Ruben Briffa who admitted
to throwing a rock in the direction of the accused.

That the defence, through the testimonies of the accused and Ramona Rodenas, has always suggested
that when the accused was fighting with Joseph Attard, he fought only with Joseph Attard. When this
fight stopped, thanks to the intervention of Maryanne Attard, who told the accused and Ramona
Rodenas to go, and of Ramona Rodenas who separated the two men and accompanied the accused to

19
his car, Ruben Briffa pulled over and came running in the direction of the accused biting his fist. At
this moment, the accused told Ruben Briffa „fuck you‟, Ruben Briffa want mad and went over the
pavement and came back with a rock. On seeing Briffa approach him with a rock, the accused
punched him in the face, and that is where the fight stopped, because the accused re-entered his car
and left the scene.

That the defence humbly submits that this is the real version of the events that unfolded on that night
and that this version is corroborated through the testimonies of the accused and Ramona Rodenas and
the not credible, contradictory and inconsistent versions of all the prosecution‟s witnesses, who through
their own contradictions the defence was able to corroborate its evidence.

Legal Arguments

1. The Charges against the Accused

That the accused has been charged with the following:

That the accused was arraigned under arrest on the 12th May 2003 and charged with having on
the 10th May 2003 at St. Andrews Road, Swieqi l/o Bahar ic-Caghaq at around 22.00 hrs:

1. Without the intent to kill or to put the life of any person in manifest jeopardy cause harm
of a grievous nature on the person of David Shepherd having ID card number 216446M as
certified by Dr. Nicola Camilleri at St. Lukes Hospital in breach of Articles 214 and 218 of
Chapter 9 of the Laws of Malta;

2. Without the intent to kill or to put the life of any person in manifest jeopardy cause harm
of a grievous nature on the person of Joseph Attard having ID card number 188447M as
certified by Dr. S. Wojgdek in breach of Article 214 and 216 of Chapter 9 of the Laws of
Malta.

That the defence humbly submits that as to the first charge, respectfully it does not agree that the
accused is to be tried under Article 218 of Chapter 9 of the Laws of Malta.

In fact Article 218 states that:

218. (1) A grievous bodily harm is punishable with imprisonment for a term from nine
months to nine years -

(a) if it causes any permanent debility of the health or any permanent functional
debility of any organ of the body, or any permanent defect in any part of the
physical structure of the body, or any permanent mental infirmity;

(b) if it causes any serious and permanent disfigurement of the face, neck, or
either of the hands of the person injured;

(c) if, being committed on a woman with child, it causes miscarriage.

(2) Any debility of the health or any functional debility of any organ of the body,
and any mental infirmity, serious disfigurement, or defect shall be deemed to be
permanent even when it is probably so.

20
 (3) The punishment for the offences referred to in subarticle (1) shall be that
established in article 312(2) if the bodily harm is committed by means of any
explosive fluid or substance.

The defence respectfully submits that a thorough appreciation of the evidence shows clearly that the
injuries sustained by David Shepherd do not fall under any of the sub-articles of this particular section.

In fact, as sustained by David Shepherd in his last testimony dated 16 th September 2009, the injuries
sustained by the same David Shepherd did not cause any permanent debility of the health or any
permanent functional debility of any organ of the body, or any permanent defect in any part of the
physical structure of the body, or any permanent mental infirmity. When directly asked by the defence
whether he has healed from the injuries sustained in this incident, David Shepherd replied in the
affirmative, thus exhonerating the accused from the charges under 218.

Moreover, it is debatable whether the injuries sustained by David Shepherd fall under Article 216
which states:

216. (1) A bodily harm is deemed to be grievous and is punishable with imprisonment
for a term from three months to three years -

(a) if it can give rise to danger of -

(i) loss of life; or
(ii) any permanent debility of the health or permanent functional debility
of any organ of the body; or
(iii) any permanent defect in any part of the physical structure of the
body; or
(iv) any permanent mental infirmity;

(b) if it causes any deformity or disfigurement in the face, neck, or either of the
hands of the person injured;

(c) if it is caused by any wound which penetrates into one of the cavities of the
body, without producing any of the effects mentioned in article 218;

(d) if it causes any mental or physical infirmity lasting for a period of thirty days
or more; or if the party injured is incapacitated, for a like period, from attending
to his occupation;

(e) if, being committed on a woman with child, it hastens delivery.

(2) Where the person injured shall have recovered without ever having been,
during the illness, in actual danger of life or of the effects mentioned in
subarticle (1)(a), it shall be deemed that the harm could have given rise to such
danger only where the danger was probable in view of the nature or the natural
consequences of the harm.

That the defence respectfully submits that David Shepherd was declared to be in danger of loss of life
when admitted to hospital by Dr. Nicole Camilleri, who in her testimony (a fol 86 et seq) stated that
when admitted David Shepherd was initially in danger of loss of life. However, when under cross

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examination, Dr. Camilleri stated that she declared David Shepherd in danger of loss of life because he
was not communicating too much with them. Moreover, she confirmed that at the time he was on
some sort of medical treatment which had nothing to do with this particular case, and finally, when
asked about the state of David Shepherd at the moment of admission, she classified it as „semi-
conscious‟ and declared that they just kept David Shepherd under observation and was treated just with
a drip and no medicines were given or dramatic casualty performed on David Shepherd.

That the defence respectfully submits that it is clear that David Shepherd was never in danger of loss of
life and this is also confirmed by Professor Godfrey Laferla (a fol 867 et seq) who stated that David
Shepherd was only kept under observation after all necessary tests were performed on his body.
Moreover, Professor Laferla never mentioned that David Shepherd was in danger of loss of life, and
that after 9 days he was fit to be discharged from hospital.

That the defence respectfully submits that in the prosecution and parte civile‟s note of submissions,
namely in page three, the prosecution states that „The witness (Dr. Nicole Camilleri) stated that within
two hours of David Shepherd being recovered in hospital he was fully conscious and that the danger of
him (David Shepherd) losing his life was limited to these two hours‟. With all due respect Dr. Nicole
Camilleri has never stated those words in her testimony.

That the defence respectfully submits that the evidence presented by the prosecution clearly shows that
David Shepherd was never in danger of loss of life, and the injuries sustained never gave rise to the
danger of such, which thesis is confirmed by the doctors‟ testimonies. Therefore since the injuries
sustained by David Shepherd healed within 9 days from the incident, did not produce a permanent
debility or infirmity on David Shepherd, there are no wounds in the cavities and no disfigurement in
the face, neck or hands of the same David Shepherd, then such injuries cannot be classified as grievous
under the definition of Article 216 of Chapter 9 of the Laws of Malta.

That the defence humbly submits that the same can be said of Joseph Attard. Joseph Attard‟s wound
has healed, and even though in Court he has insisted on stating that he still bears a scar in his left eye-
brow, such scar is not visible.

2. Proof Beyond Reasonable Doubt

That the defence respectfully submits that during these proceedings the prosecution did not achieve
the degree of proof required at law to prove that the accused has committed the charges levied against
him beyond reasonable doubt.

That the defence humbly submits that it has shown through this note of submissions and through the
evidence presented by the prosecution that all prosecution‟s witnesses were inconsistent and
contradictory and not credible in their testimonies.

That it is an accepted practise in our Courts that when the prosecution‟s witnesses have given different
accounts of the same stories, many a times contradicting each other, then the Court would not be in a
serene position to declare a person guilty of the charges brought against him and this is because the
presumption of innocence is always in favour of the accused.
That according to the humble opinion of the defence the prosecution‟s witnesses have contradicted
each other and themselves every time they gave their testimony in front of this Court. In fact on many
occasions their versions have verged on what is physically and naturally impossible to be achieved as
has been proven by the defence in this note of submissions.

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The gravity of the charges brought against the accused are of the type that the prosecution would have
to make sure that it is abundantly clear that the accused has committed these offences and there is no
reasonable doubt that it was the accused who with intent committed such offences, which is clearly
something the prosecution has failed to achieve.

That the defence respectfully submits that this was not the case in these proceedings and thus the
prosecution did not manage to successfully prove its charges against the accused.

3. Lawful Self-Defence

That the defence respectfully submits that the accused has always accepted that he did inflict bodily
harm on the person of Joseph Attard. However, he has always stated that he did so in self-defence and
a thorough appreciation of the evidence and with the arguments of the defence as laid out in this note
of submissions it transpires that it was not the accused who started the fight but Joseph Attard, who
grabbed the accused in headlock without trying to calmly sort out what was after all a simple traffic
accident.

That the defence submits that such a sudden, grave and surprising behaviour from Joseph Attard has
led the accused to fight in order to defend himself. Indeed Joseph Attard has always stated the contrary
but the evidence presented and the contradictions found in the injured parties testimonies corroborate
the accused and Ramona Rodenas‟ version of events.

That the defence respectfully submits that a thorough appreciation of the evidence shows
unequivocally that the accused and Ramona Rodenas‟ version of events was never contested by the
prosecution and their version of events is consistent, never contradictory and always truthful to what is
physically possible.

Therefore the defence humbly pleads that the Court declares the accused to have acted in lawful self-
defence and declare the accused not guilty of committing the offence of grievous bodily harm on
Joseph Attard and David Shepherd.

Av. Chris Bonett Av. Maxilene Cassar

Level 1, Degau Flats, Level 1, Degau Flats,
Triq Dr. Guze‟ Miceli, Triq Dr. Guze‟ Miceli,
Gzira. Gzira.

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