Updated | How three men accused of murdering Daphne Caruana Galizia can escape justice

Magistrate Charmaine Galea is the second magistrate to withdraw from hearing the compilation of evidence against George Degiorgio, Alfred Degiorgio and Vince Muscat.

The reason why may appear fickle – her appointment to the Bench in 2013 by a new Labour government had been criticised by the slain journalist.

Before her appointment, Galea had worked as a lawyer in the legal office of then Labour Party deputy leader Toni Abela, who was later appointed judge.

On this basis alone, logic would dictate that any objection to Galea hearing the case should have come from the prosecution or the lawyers representing the Caruana Galizia family.

However, addressing the court this morning, Jason Azzopardi, appearing parte civile for the family, said there was no objection to Galea presiding over the case.

Sketch of the accused in the dock this morning | Sketch: Perit Eric Gerardi

Defence lawyer Martin Fenech, however, objected, insisting that if the magistrate felt uncomfortable presiding over the case, she should recuse herself to ensure justice is not only served but seen to be done.

Galea took only a few minutes to decide the matter and recuse herself, in what appears to have been a fait accompli.

MaltaToday had reported on Sunday the possibility of the defence asking for repeated recusals of magistrates assigned to hear the case in a bid to play for time.

At law, a decision on prima facie evidence has to be taken within 30 days of the charges being filed in court. In exceptional circumstances, the President can grant two one-month extensions to lengthen the period.

The current period expires in 20 days’ time and if no magistrate is found to take a decision by then, the accused would have to be discharged unconditionally or an extension requested to the President. More important is the fact that if the accused are discharged they cannot be charged again in court with the murder unless the police presents new evidence.

It is no wonder that Azzopardi expressed indignation at developments in court this morning.

“This is uncharted, unprecedented territory. The defence’s endgame was to delay the granting of the decree of prima facie for longer than the period of 30 days which the law allows it,” Azzopardi said at the end of the short sitting.

What is prima facie evidence

This is the evidence that the police present against the accused, linking them to the crime. This stage is known as the compilation of evidence and can take more than one sitting. At the end of the procedure, the magistrate would have to decide whether there is enough evidence at face value for the accused to stand trial for the crimes they are charged with. The magistrate's decision has to be delivered within 30 days of the charges being filed. If no such decision is made the accused will have to be discharged without conditions and any new arraignment could only happen if the police present fresh evidence.

Magistrate Donatella Frendo Dimech was the first to recuse herself

Galea’s recusal follows that of Magistrate Donatella Frendo Dimech last Thursday.

The reason for recusal given by Frendo Dimech was also tenuous. The magistrate had announced she had been in school with one of Caruana Galizia’s sisters 34 years earlier and every year they exchanged birthday greetings.

Frendo Dimech had also declared that she passed on her condolences to the woman following Caruana Galizia’s murder.

The defence objected and after a two-hour deliberation, Frendo Dimech insisted that in the interest of justice it would be better if she recused herself from the case to avoid any doubts on her impartiality raised by the defence.

The developments have opened up a veritable Pandora’s Box.

When should judges or magistrates recuse themselves

This matter is governed by the Code of Organisation and Civil Procedure. Judges and magistrates may abstain o be challenged from presiding a case if:

• They are related to any of the parties
• If they are the tutor, curator, or presumptive heir of any of the parties
• If they had advised, pleaded or written on the cause or on any other matter connected to it in the past
• If they previously dealt with the case as a judge or as an arbitrator, paid any costs or acted as a witness in a case
• If there are any marital connections to the lawyers, whether direct or indirect
• If the judge or his spouse have a pending case against any of the parties to the suit
• If they are creditors or debtors in a way that could reasonably give rise to suspicion of a direct or indirect interest in the outcome of the case

Given that the three men accused with the murder are unemployed they opted for legal aid lawyers. However, it is believed they have sought separate advice from top criminal lawyers.

The strategy to seek the recusal of magistrates is described in legal circles as tactical forum-shopping.

The first magistrate to hear the case was selected by lot. However, following her recusal, the next magistrate was chosen by Chief Justice Silvio Camilleri.

After the second recusal, it will fall on the Chief Justice again to choose the magistrate to hear the compilation of evidence.

The accused driven back to prison after this morning's short sitting | Photo James Bianchi/MediaToday

The three men were arrested on 4 December in a police and army raid on their quarters in the ‘potato shed’ in the Menqa area of Marsa.

They were charged in court the following day, accused with murdering the journalist. Caruana Galizia was killed on 16 October after a powerful bomb blew up her car just after leaving the family home in Bidnija.