Melvin Theuma's testimony to stand in proceedings over fake government job, court says

Magistrate Monica Vella has rejected a request to expunge testimony given last week by Melvin Theuma in the criminal case concerning his phantom government job.

Charges were filed against several government officials, including former OPM chief of staff Keith Schembri, and Daphne Caruana Galizia murder mastermind suspect, Yorgen Fenech.

During today’s sitting, the police also denied allegations made in court by Keith Schembri’s lawyers, who claimed that Melvin Theuma had recently been arrested in connection with the fake job investigation.

Theuma, the self-confessed middleman in the plot to murder Daphne Caruana Galizia, had been granted a pardon for a number of crimes in return for his testimony against the alleged perpetrators.

The criminal proceedings against Keith Schembri, the former chief of staff at the Office of the Prime Minister, Yorgen Fenech, former OPM customer care chief Sandro Craus, former private secretary in the family ministry Anthony Ellul and former Housing Maintenance and Embellishment Co Ltd CEO Anthony Muscat, continued before Magistrate Monica Vella on Tuesday afternoon.

As the sitting began the magistrate issued a decree confirming that Melvin Theuma’s testimony before her last week, was not to be expunged from the evidence in these proceedings.

The magistrate noted that the proceedings before her were intended to gather and preserve evidence, and not to take decisions about the evidence, explaining that to do so would be usurping the functions of the Criminal Court. 

The point of the proceedings was to collect the evidence indicated by the Attorney General, she said. The Criminal Court will then use this evidence to decide on guilt or innocence.

The previous sitting had been an unmitigated disaster for the prosecution, who had called Melvin Theuma to the stand, only for him to back out of testifying after the defence raised the possibility that his Presidential pardon might not extend to granting him immunity from prosecution in this case.

In the light of the court’s rejection of the request, one of Keith Schembri’s lawyers, Edward Gatt, informed the court that he would be filing an application to request a constitutional reference, acknowledging the tight time frame faced by the court at this stage, but saying that the decision raised an issue of equality of arms and his client’s fair trial rights would be prejudiced.

“What equality of arms do I have at prima facie level if I wasn’t able to cross-examine a witness?”

The formal request for a constitutional reference will be filed within two days, he said.

Police inspector Nicholas Vella denied the defence’s assertion that the prosecution had impeded Theuma’s cross-examination. Asked by Gatt whether he knew whether Theuma had been arrested earlier today, he said he was not aware of this.

Anthony Muscat’s lawyer, Stefano Filletti, also addressed the court, accusing the prosecution of summoning a witness who really should be the co-accused. “The circumstances are unique: We have a witness who admitted to the crime with which my client is charged and who is asked to testify. Therefore the rule preventing the testimony of a co-accused should be triggered. But instead of charging him, they summoned him as a witness.”

“Whoever is playing this game knows that the court’s hands are tied. Instead of searching for the truth, the prosecution is using this legal loophole to bring a person who should be a co-accused to refuse to testify so he could prevent cross-examination,” Filletti claimed, alleging a breach of the principle of equality of arms.

Lawyer Edward Gatt asked the inspector to make the necessary inquiries and then confirm on oath whether Theuma had been re-arrested or not. “The court must respect the law, if he is confirmed as a co-accused, the Criminal Code applies.”

Gatt and Mark Vassallo for Schembri also asked the inspector to verify whether Theuma had been arrested in connection with these proceedings.The lawyers repeatedly insisted that the prosecution immediately act on this request and verify whether it was true or not.

Inspectors Nicholas Vella and Brian Camilleri both informed the court that they were not aware as to whether Theuma was under arrest and were then ordered to check. Vella asked the court to allow him to inform the court in camera, if it turns out that he was. The request was denied.

Craus’ lawyer Michael Sciriha submitted that he had examined the conclusions of the inquiry into the phantom job, telling the court that the inquiring magistrate had told his client that he was being treated as a witness before he testified. “Therefore Mr Craus should be a witness, not an accused. I cannot let this stand. I cannot fail to contest prima facie, because there is no prima facie.  His involvement was described as marginal… Not even the elements of the alleged crimes are present.”

Anthony Ellul’s lawyer Vince Micallef, backed Gatt’s submissions and reserved his right to file constitutional proceedings in this regard. Yorgen Fenech’s lawyer, Charles Merceica, pointed out that Theuma’s situation could also change in the light of what emerged.

After leaving the courtroom to make inquiries with his superiors, Inspector Vella returned and informed the magistrate that both Police Commissioner Angelo Gafa and Deputy Commissioner Alexandra Mamo had confirmed to him over the phone that Melvin Theuma was not presently under arrest.

The court pointed out that this was not the question he had been ordered to ask, which was whether Theuma had been arrested in connection with this case after his refusal to testify, or not.

The inspector confirmed that Theuma had not been arrested in the days since his refusal to testify. Gatt asked that the confirmation be sworn on oath, implying that he did not trust the sources of Inspector Vella’s information, but the court refused this request.

Gatt accused the prosecution of playing with words and warned that he was not going to let the matter slide. “Let me be clear, if I find out that this is not true, I will do what I have to do,” he said.

The case was adjourned to 18 October for submissions.