Vincent Muscat HSBC heist trial postponed after prosecution asks for key witness to testify

A judge has postponed the trial by jury of Vincent Muscat, il-Koħħu, over the 2010 HSBC heist after the prosecution asked to admit a co-accused as a witness.

The last-minute request by the Attorney General to admit Daren Debono it-Topo as a prosecution witness at the trial stage came just after he admitted guilt. Daren Debono was jailed for 10 and a half years.

The court was informed that Daren Debono wished to plead guilty to his involvement in the heist this morning after a plea bargain under which he would testify against Muscat. The development had been leaked to the media and published the night before the trial.

Lawyers Roberto Montalto and Franco Debono, appearing for Muscat, asked the court for some time to advise their client in view of the “media revelations” as they had not had the opportunity to do so since last night.

The court rejected a request by the defence to postpone the trial over prejudicial media influence but accepted a request for Daren Debono to first testify in the compilation of evidence before he is admitted as a witness in the trial.

Request for Topo to be admitted as a witness

The court heard submissions on an application by the AG in which he requested the addition of Daren Debono’s name on the list of witnesses.

Prosecutor Giannella Busuttil from the Attorney General explained that in the meantime, Debono had admitted in court and was sentenced by this same court. He had also renounced to his right of appeal. Debono’s case was therefore a res judicata. The AG said that there was no impediment to the court hearing Debono testify during the course of the jury and asked that he be added to the list of witnesses.

In his reply, lawyer Franco Debono said justice should not be rushed. “This is a classic case where a rushed request is made. The case has been ongoing for seven years and then suddenly he admits and we blindly admit him as a witness without knowing what he wants to say.”

Justice within a reasonable time implied a reasonable minimum as well as a maximum, Debono argued. “What position am I going to take with regards to my client?”

Debono said that the only thing he had in his Vince Muscat court file relating to Daren Debono was that he admitted this morning. “All I know is that he was convicted in March 2017 by Magistrate Ian Farrugia for perjury and was interdicted for 20 years. This is the witness that the prosecution wants to summon.”

Montalto added that the perjury conviction was made on an admission by the accused.

The right of appeal is a matter of public order, submitted the lawyer. “In truth, he could still appeal. Is anyone going to stop you because you renounced the right? I don’t think so. So therefore, the sentence is still not a res judicata.”

The defence insisted that if Daren Debono is admitted as a witness it will be a grave breach of right to a fair hearing. The defence insisted that Debono should first testify before the lower courts in the compilation of evidence just as had been done with Melvin Theuma.

This could be arranged to happen tomorrow or next week, said the lawyer, but insisted that the defence had a duty to their client which “should be discharged from a position to give advice to our client according to law.”

What if Daren Debono also mentioned other people in his testimony, asked the lawyer, describing the potential situation as “a miscarriage of justice that will go down in history.”

“We are only asking the court to proceed in the same manner as it did in the Melvin Theuma case,” said Debono.

But the court said the request in that case was different. “You cannot compare as the circumstances were different.”

The court said that in that case the AG had asked that Theuma be heard by the lower courts, but today the AG is asking that Daren Debono be admitted to the list of witnesses in the trial.

The defence lawyer insisted that these weren’t things that should be rushed or given as a surprise. He asked why the AG had not requested the witness be heard before the lower courts.

“It doesn’t even cross my mind, as a lawyer with 20 years’ experience, to have a jury where the principal witness has not even testified yet,” Franco Debono argued.

Prosecutor Giannella Busuttil said that in the application filed last night, the AG did not bind himself to any disposition of the law. This was because the court had two options, she said. Either Daren Debono be entered in the list of witnesses by the court ex officio – on its own steam– or, if the court disagrees with that, the other alternative would be that the acts be sent to the compiling magistrate to be heard there.

She argued that Muscat’s rights would not be prejudiced, as he was assisted by two capable lawyers who had the faculty to cross-examine the witness.

In his rejoinder Debono argued that the disclosure of the evidence against the accused was not complete and said that the courts had embraced the rule of disclosure and that juries had been dissolved abroad over the lack of it.

He repeated and insisted that it would be a miscarriage of justice if the case was not sent back to the lower courts to hear the new witness there. Debono asked the court to uphold the second option mooted by the prosecution, adding that it could even be done today, so as not to waste time.

Busuttil said she disagreed with the argument that it would be a miscarriage of justice, as it was an option listed in the law.

The court issued a decree, saying that “it was not in the culture of our juridical system that a witness, who is evidently of a certain importance, as an accomplice in the allegations against the accused, be admitted to testify before a jury without the possibility of the defence being able to attack his evidence.”

As a result, the court ordered the acts be sent back to the Court of Magistrates for this witness to be heard before the trial begins.

The judge ruled that the jury cannot continue today and the case was put off sine die, until the new witness’s evidence is heard by the compiling magistrate.

Prejudicial media publicity

As the sitting began, earlier this morning the defence lawyers pointed out to the court that although it had just ordered the press not to publish the story until otherwise directed, it was already on the front page of In-Nazzjon and was on all the news portals. He reminded the court of the jury of Melchior Spiteri which had been dissolved and trial postponed over a news report.

Debono said he was just bringing the issue to the attention of the court. The press was doing its job, he insisted, adding “but we also have regulations on the right to a fair hearing.”

“Unfortunately, the prejudice which the court wants to prevent has already occurred last night,” Debono submitted.

The judge pointed out that the lawyer was saying the media was doing its job but was also participating in making it an unfair hearing. “You either say one thing or the other. Are you afraid of saying something?” Grixti asked.

Debono argued that the defence believed the jury should be postponed. The court said it agreed with the accused’s first argument in that up till the jurors are chosen and isolated, no reporting on the trial should take place.

Prosecutor Giannella Busuttil from the Attorney General also condemned the leaks, but said she was surprised that Debono was annoyed at the leaks which happened yesterday and today, but not all the leaks in the days and weeks leading up to the trial.

“Look at all those leaks. Didn’t they bother you at all?” She disagreed with the request to postpone the jury.

Debono rebutted, arguing that he and Montalto had only taken up the case a few days ago. “I am not very happy that I am going to defend a jury where the facts are already spread to the four winds, but I believe that in a democratic society you have to be practical. But that the night before the jury starts… some of them [the stories] stultify the judicial process [ is not acceptable].”

He repeated that the trial of Melchior Spiteri had been postponed by six months after a simple court report. “Am I going to defend a trial without knowing what a witness is going to say?”

Franco Debono said that the court had to defend the right to a fair trial. He said he had found out about the development from the media and had not even had the opportunity to consult with his client.

He added that the jurors could not serenely reach a conclusion after reading the news articles. It was clear that Daren Debono, the alleged accomplice, will be one of the principal witnesses if not the principal witness.

The lawyer asked the court to rule on this issue. “I think there should be a decree, a ruling… these are exceptional circumstances. These things happened only a few hours ago. I am not pointing fingers but I am only interested in the fair hearing of my client.”

He said the court’s decree in the previous case only served to show that their request was justified. It would have been very good had it been given before the report was published, Debono argued.

The court said it was of the opinion that what had been reported in the media was speculative towards what could have happened this morning. So much so that the court had preventively ordered the media not to publish anything which happened in the case Republic vs Daren Debono until the jury is isolated.

“This because it is evident that there is reporting and broadcasting, which is uncontrollable, by institutions which are well aware of their responsibilities and the consequences of their actions. In today’s times, the request at hand could in and of itself lead to prejudice, consisting of delays to justice and therefore it would be the duty of this court to explain to the jurors all the consequences of their decision, based on what they could have read in the media.”

A postponement, for however long, is always subject to the repetition of the publication and broadcast of what happened and what is happening now in this courtroom, said the judge. The judge denied the request made on those grounds.