Failure to exhibit phone tap warrants in Caruana Galizia case may compromise legality of evidence, Constitutional Court warns

Failure to exhibit phone tapping warrants against George Degiorgio could have consequences on the legality of evidence at a later stage, the Constitutional Court has warned.

Degiorgio is one of three alleged hitmen – the others being his brother Alfred Degiorgio and Vince Muscat – in the Daphne Caruana Galizia murder plot.

However, the Constitutional Court dismissed Degiorgio’s appeal to order the warrants exhibited in the criminal case, insisting it had no such power, but warned of the legal consequences if the warrants are not presented as evidence.

Lawyer William Cuschieri, appearing for Degiorgio, had filed an application before the First Hall of the Civil Court in its constitutional jurisdiction, explaining that in a particular sitting, Inspector Keith Arnaud had testified that he did not know whether or not the phone tap evidence against the accused had been obtained through a warrant.

Later in that sitting, reads the application, Security Services head Joseph Bugeja had told the court that the warrant in question had been issued in February 2017 in connection with “some other crime that is certainly not the homicide,” which was carried out months later. Bugeja had refused to exhibit this warrant.

Cuschieri had asked the witness whether a warrant against the man had ever been issued with regards to the Caruana Galizia murder. Bugeja had refused to answer that question.

This led to the filing of the constitutional application with Cuschieri arguing that the question was pertinent and relevant to the case at hand and that an answer was required at law.

It was initially rejected by the First Hall of the Civil Court, but a constitutional case was then filed, arguing that the first court had failed to give an explanation of its reasoning and asking the Constitutional Court to order the Head of the Malta Security Services to exhibit the warrant.

The call recordings had been used as intelligence and were not exhibited as evidence against Degiorgio, the court had heard Inspector Keith Arnaud, say.

In a decision handed down on Monday by the Constitutional Court, presided by Chief Justice Mark Chetcuti, Mr Justice Giannino Caruana Demajo and Mr Justice Anthony Ellul, it was stated that under the best evidence rule it would expect the warrant to be exhibited, but it was up to the parties to do so.

The appeal was dismissed with costs, with the court saying it could not order the exhibition of the warrant.

“One must remember that this is a constitutional case, where the complaint of the applicant is that the intercepts were not made in the manner prescribed by law and in so doing had breached his fundamental rights. Including the right to privacy. The respondent insists that they were made according to law. The Security Services Act clearly stated what was required for a lawful interception of electronic communications,” said the court.

But the defendant himself had revealed that a warrant had been issued and procedurally, this meant that for the best evidence to have been exhibited, the warrant must be presented in court, said the judges.

“Alternatively, we end up in a situation where a person can say what they want without the obligation to substantiate their claims,” the judges added.

In the circumstances, said the court, the Head of the Security Services could not testify that intercepts were made under a warrant and then use the law to avoid proving that what was done, had been done legally.

“That is the choice of the defendants and the court does not feel it should tell them what evidence they have to exhibit to prove the legality of the intercepts,” the judges said.

But failure to exhibit the warrant would mean that there was no evidence of the intercept having been legal, with all the consequences that brings with it, added the court.