HSBC Heist: Koħħu lawyers say Daren Debono cannot testify due to perjury conviction

Tempers flared in the courtroom on Friday afternoon, as lawyers defending Vince Muscat clashed with a prosecutor over whether or not convicted bank robber Daren Debono could legally be allowed to testify against Muscat in criminal proceedings about that same bank robbery, as he is currently interdicted for perjury.

Magistrate Monica Vella heard the, at times heated, submissions in the first sitting of the newly re-opened compilation of evidence against Muscat. Muscat’s trial for his part in the 2010 botched hold-up of the HSBC Headquarters was supposed to start earlier this month, but was derailed by the last-minute admission made by his co-accused by Daren Debono it-Topo, following a plea deal with the prosecution.

Debono was sentenced to imprisonment for ten and a half years and had an attempted murder charge dropped, in return for his testimony in the trial against Muscat, in a deal reached at around 8pm on the eve of the trial.

When the trial was convened, Muscat’s lawyers had vociferously objected to the newly convicted Debono being produced as a prosecution witness. They argued that he had not been heard as part of the compilation of evidence and that this had deprived them of the opportunity to hear what he had to say and prepare their defence accordingly.

The Criminal Court subsequently sent the case back to the court of magistrates, so that compilation proceedings could resume and the new witness be heard.

Magistrate Monica Vella scheduled a sitting this afternoon, so that Debono’s testimony could start being heard, but when the case was called on Friday, Muscat’s Lawyers Franco Debono and Roberto Montalto objected to his testimony, arguing that any testimony he would tender would not be admissible, in view of the fact that he was an accomplice in the trial for which Muscat was on trial for. In addition to this, they brought to the attention of the court the fact that in 2017, Debono had already been convicted of perjury and fabricating evidence in a similar criminal case.

As a result of that case, in which Debono had admitted guilt, the court had placed him under a 20-year general interdiction, which rendered him an inadmissible witness, argued the defence.

Prosecuting lawyer Giannella Busuttil, from the Office of the Attorney General, rebutted, saying that these were submissions that should have been made before the Criminal Court, and arguing that the scope of these proceedings before the Court of Magistrates had been limited by the superior court to only hear Debono’s testimony and allow for his cross-examination before he tendered evidence in Muscat’s trial by jury.

Lawyer Franco Debono then challenged the AG’s right of audience in these proceedings, saying he had doubts “that the AG even has a right of audience before the compiling court, as this is reserved to the police.”

The magistrate announced that she will be delivering a ruling on the issues raised and scheduled the next sitting for the morning of February 3, in which she is expected to give a decision. If the prosecution’s requests are upheld, Debono will testify on that day.

15:26 The magistrate will be giving a ruling on the issue. Meanwhile, the case was adjourned to 3 February at 9:30am. She makes it clear that if the court allows the witness to testify, it has allocated the entire day to hearing him. Nicole Meilak

15:24 Busuttil insists that the magistrate cannot even do this, as the scope of its powers is so limited. Nicole Meilak

15:23 The court sums up what it had been told. It upholds the defence's request to file a note of submissions, giving the lawyers of both sides till February 1st to do so.

The court also makes a recommendation to the director of Corradino Correctional Facility to grant the accused contact visits with his lawyers to allow him to prepare his defence properly. Nicole Meilak

15:18 With his voice rising, Debono says he doubts that the AG even has a right of audience before the compiling court, as this is reserved to the police. The magistrate comments that she had expected this argument to crop up and it will be dealt with in her decision. Nicole Meilak

15:17 Busuttil stands up. "Are you going to object to this request?" asks the magistrate.

"No, but this court is only empowered to hear the witness specified," Busuttil insists. The lawyers start to bicker again.

Debono submits that if a bail request is made, this would be the competent court to hear it. Nicole Meilak

15:12 Whilst Debono looks up a section of the law, Montalto informs the court that the defence was not satisfied with the current arrangements for lawyers to speak to their clients in prison. The court says that it can only make a recommendation as it has no power over the prison administration. Nicole Meilak

15:10 The Criminal Court's order was to be executed within a month of 6 January 2022, she said, in view of section 406 of the Criminal Code, which regulated the issue, added the prosecutor. Nicole Meilak

15:06 What Busuttil had just dictated was also reflected in the decree of the Criminal Court made earlier this month. She reads from the decree: "The acts be sent back to the Court of Magistrates so that this witness be heard and the Court of Magistrates is to then send the acts back to this court in order to dispose of the AG's request." Nicole Meilak

15:05 "Arguments about the admissibility of a witness, including Daren Debono, can only be heard before the Criminal Court and not this court, which has a limited role as explained earlier." Busuttil said. The same applies to any other requests that the accused may make, concluded Busuttil.

The lawyers are leafing though the case file. Nicole Meilak

15:01 These requests by the defence must be made to the Criminal Court, as it was the only competent court to decide on these issues at this stage of proceedings, dictated the prosecutor. Nicole Meilak

15:00 Giannella Busuttil asks that the witness be heard before the lapse of one month because of legal timeframes.

"The AG objects to the requests made by the defence, due to the fact that in this case, the Bill of indictment has already been tabled before the Criminal Court and therefore the task of this court is a limited one, in the sense that the only task of this honourable court at this stage is that of hearing the witness indicated in the Criminal Court's decree so that this evidence is preserved and afterwards, send the acts of the case back to the Criminal Court for the trial to continue." Nicole Meilak

14:56 Montalto says the defence is objecting to the witness as he had been condemned to interdiction for the crime of perjury. The defence also objects because he is an accomplice in the attempted robbery of the HSBC HQ in 2010.

Thirdly, without prejudice to the previous two requests, should the court decide to hear the witness, he should testify once, with the examination and cross-examination being heard in the same sitting. Nicole Meilak

14:52 The court asks the defence to dictate a note listing its three points. Debono asks whether his submissions had been recorded. It appears that part of them had not been. Nicole Meilak

14:51 The lawyer is dictating a note. The defence requests the court to summon ex-superintendent Norbert Ciappara to testify about the admissibility of the witness Daren Debono in view of the fact that he had been sentenced for perjury and condemned to the punishment of interdiction. Nicole Meilak

14:50 Debono, as the defence, has the final word. He says he cannot agree with the AG's submissions as it is the "denaturing of the Court of Magistrates".

"Let us not interpret the Criminal Court's decree in a simplistic manner... We all know that is not the correct interpretation, this court has all the powers of the Court of Magistrates as a Compiling court."

"Not one valid reason at law has been made as to why our requests are not to be upheld," Debono argued. Nicole Meilak

14:46 The function of this court is limited to hearing this witness, she concluded. "The case will be decided by the Criminal Court and the functions of this Court of Magistrates are very limited" Nicole Meilak

14:46 Busuttil makes her closing submissions. "The bill of indictment has already been issued. This court is competent only to hear this witness and is competent because of the decree of the Criminal court. With all respect to this court, as the bill of indictment has been issued, this court is not competent to decide on any request for a Constitutional reference or anything bar that specified in the Criminal Court's decree." Nicole Meilak

14:45 Montalto stands up, telling the magistrate that the AG seemed to be saying that the court should hear the testimony and then refer the issue to the criminal court. "These are games," he said. "We don't have evidence to show that his evidence is relevant and admissible.." Daren Debono turned up as a witness at the worst possible time for the defence, on the morning of the trial, said the lawyer.

He disagreed with the AG's interpretation of the Criminal Court's decree, he said, insisting that when the acts are sent back to the Court of Magistrates, that court had all of its usual powers. Nicole Meilak

14:42 Debono agrees, saying that he must first exhaust his ordinary remedies before proceeding to file Constitutional proceedings. Nicole Meilak

14:40 "If the court doesn't uphold our request, we will be making the arguing that as the law makes a general principle, barring the witness from testifying but also then creates an exception to this general rule, which allows him to testify in a case of attempted murder."

The magistrate points out: "but that is the law." Nicole Meilak

14:37 The defence wants to prove that the witness had been interdicted for 20 years in a similar case of attempted murder, explains the lawyer. "There is no legal impediment under the criminal code that precludes the court from upholding our request. We want Inspector Norbert Ciappara to testify about the interdiction.”

It was not true that the defence was not allowed to summon a witness on the credibility and admissibility of evidence at this stage, insisted Franco Debono. Nicole Meilak

14:34 "My able colleague, during the oral submissions before Judge Grixti, agreed that there were two ways of going about it." There was an extraordinary development at the last minute, Debono says. "But she didn't give reasons to deny our requests."

"What court of criminal jurisdiction is not going to accept to hear witnesses on the admissibility of evidence, not on the merits?" Nicole Meilak

14:32 The lawyer turns to the case, emphasising the reciprocal respect between the lawyers of the two parties. "We agree that the parties were all doing their jobs."

"If we are going to make a reference to the facts, we should make a reference to the facts as they happened. We must be loyal to the facts. The application doesn't mention section 406... we understood that the AG wanted to add the witness to the list of witnesses for the jury and we would then proceed with the jury." Nicole Meilak

14:28 It’s Franco Debono's turn. He says that the parties were therefore in agreement. "I think this is not the best time for the witness to start to testify at 3pm in the afternoon.... if we use logic and common sense, if we are going to agree that the witness testify in one go, it isn't a good idea for him to start at this time."

"We could have a cross-examination that takes hours. We could be here till late at night," Debono says. Nicole Meilak

14:25 Busuttil said the defence could make its request before the Criminal Court, but not before the Court of Magistrates.

With regards the admissibility of the witness and other arguments, these, too should be made before the Criminal Court. "This court is bound solely to follow the decree of the Criminal Court. This because the case is being heard by the Criminal Court... this court is not competent to decide on any pleas or requests for a Constitutional reference." Nicole Meilak

14:23 The sitting is punctuated with loud, overlapping exchanges of arguments between the lawyers. There appears to be no love lost between Montalto and Busuttil. Nicole Meilak

14:21 Montalto interrupts the prosecutor, claiming that she had "forgotten" her request.

Busuttil rebuts that she had not bound her request to any particular legal disposition in the AG's application to the Criminal Court. "The AG had simply made a request that Darren Debono be added to the list of witnesses," she said. "We had made arguments about it before the Criminal court. We had given two options, either the witness testify before the jury or the acts be sent back to the Court of Magistrates for the witness to testify."

She accuses Montalto of "being disloyal to the court". Nicole Meilak

14:19 Giannella Busuttil quotes section 406(1) of the Criminal Code. It was on the basis of this article that the bill of indictment had been issued. Nicole Meilak

14:16 The magistrate asks whether the defence was going to summon a witness about the perjury conviction. They do, say the lawyers, saying that he had given false evidence in the exact same situation. Nicole Meilak

14:12 Franco Debono says he wants Inspector Norbert Ciappara to testify first.

"It is now 2pm. We are going to request that, if the court allows him to testify, he doesn't get off the stand until his examination and cross examination is completed. We don't want episodes," Debono adds. Nicole Meilak

14:10 "We don't know what (Daren) Debono is going to say, but he has another problem. I understand that he is going to testify as an accomplice. The law stipulates that accomplices' testimony is to be treated with great circumspection,” says the lawyer. "It is very dangerous to let him testify."

This is the situation in Luxembourg and Belgium, says the lawyer. Originally the prohibition was extended to every person convicted of a felony, but the doctrine developed over time. Nicole Meilak

14:08 Debono says the defence is planning on making a Constitutional reference. He argues that if the witness testifies, it could cause irremediable prejudice. The law says that if someone is convicted of lying under oath, that person is to be placed under a general interdiction "and cannot serve as a witness," Debono continues. He adds that he had conducted extensive research into how this principle had developed, also in other jurisdictions.

He repeats that if this court will rule against his client, he would be filing a Constitutional reference. Nicole Meilak

14:04 Busuttil and Montalto bicker whilst the court is looking up section 109 of the Criminal Code, which was cited by Debono. The court warns them that if it happens again one of them is going to be sent out of the courtroom. Nicole Meilak

14:03 He questions whether the witness is admissible. "Who is this person? This person is interdicted. He is under a 20-year interdiction after being found guilty of giving false evidence." Nicole Meilak

14:02 The defence said that they had communicated with Inspector Mercieca to summon a particular witness to testify before Daren Debono. Lawyer Franco Debono addresses the court, explaining the backstory to today's sitting.

"We have a person who has reached a plea bargain and for who a charge of attempted homicide has been dropped. The same charge remains with regards to our client." Nicole Meilak

14:00 Montalto argues that the decree of the Criminal Court simply sent the acts back to the Court of Magistrates. The compiling court is endowed with a court's normal powers, he said. Nicole Meilak

13:58 Montalto says he has several points to address before the witness is heard.

"We have, not a doubt, but legal certainty, that the witness due to testify today is not an admissible witness," he begins, as Muscat’s other defence lawyer Franco Debono walks in.

But already AG lawyer Giannella Busuttil interrupts. "This court's sole and exclusive mandate is to execute the order of the Criminal Court and hear Daren Debono. The defence can raise any argument they want, but only before the Criminal Court." Nicole Meilak

13:55 The magistrate emerges from her chambers and the sitting begins. Inspector Joseph Mercieca and AG Lawyer Francesco Refalo are prosecuting. Nicole Meilak

13:54 Vince Muscat has been brought into the courtroom. His lawyer, Roberto Montalto, spent some time talking to him but now he sits alone on the front bench. Nicole Meilak

13:52 We're a step closer to the start of the hearing as the magistrate retires to her chambers. Nicole Meilak

13:34 It seems that the hearing will take place in one of the smallest courtrooms of the building. The sitting is yet to begin. Nicole Meilak

13:12 The other case is still being heard. The magistrate instructed journalists to leave the courtroom as there were "too many people unconnected to the case" in the room. Nicole Meilak

12:50 Magistrate Monica Vella is currently hearing another case, hence the delay in the compilation of evidence. Nicole Meilak

12:36 Our court reporter Matthew Agius is inside the courtroom and will be giving us updates from there. The courtroom is very small, and the security entourage is yet to appear with the accused and witness. Nicole Meilak

12:33 Today’s case follows the sensational admission of guilt by Daren Debono, known as ‘it-Topo’. He submitted a guilty plea on the eve of what was supposed to be the trial by jury of Vincent Muscat, but his admission reopened the compilation of evidence as he will now testify against his former accomplice. Nicole Meilak

12:14 Good afternoon. Follow us live as we report on the compilation of evidence against Vincent Muscat ‘il-Koħħu’ over the 2010 HSBC heist. Nicole Meilak