Melvin Theuma evidence will not be expunged from phantom job proceedings, court declares

A court hearing evidence against five men accused of putting Melvin Theuma on the government’s payroll, just months after he had helped arrange the assassination of journalist Daphne Caruana Galizia, has rejected a request to expunge Theuma’s evidence from the proceedings.

Theuma had been supposed to give evidence in criminal proceedings against Keith Schembri, the former chief of staff at the Office of the Prime Minister, Yorgen Fenech.

The other three men are 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.

When Theuma took to the witness stand in a previous sitting, lawyers defending the five men accused the prosecution of misleading the witness into testifying. The lawyers claimed that Theuma’s presidential pardon did not cover his actions in this case and he would be incriminating himself under oath.

Lawyer Stefano Filletti insisted that in the absence of any physical evidence that Theuma’s Presidential pardon also extended to his involvement in the crimes with which the men were accused, Theuma had to be treated as a co-accused in these proceedings.

“The inadmissibility of a co-accused’s testimony is established by the operation of the law! This request tends towards frivolity,” submitted the lawyer.

Filletti also pointed out that even were the pardon to be exhibited, Theuma must still submit to cross-examination. “This battle is not one about relevance, it is motivated by the right to a fair hearing and equality of arms in the courtroom, when we see this situation unfolding where a witness is refusing to be cross-examined, on a crime which he had already admitted to and for which he had been pardoned.”

“The Attorney General is not understanding that this is a court and not a bazaar,” Filletti added, describing the situation as “surreal.”

After hearing the final submissions on the issue, presiding Magistrate Monica Vella denied the defence’s application for a constitutional reference about Melvin Theuma’s testimony. This request, had it been upheld, would have stalled the criminal proceedings until the issue was decided by a court of constitutional jurisdiction.

In her decision, Magistrate Vella pointed out that the court’s function at this stage was to compile and collect the evidence. Making reference to the law regulating the powers of the magistrate during the compilation of evidence as well as citing from case law, she said proceedings were at an early stage.

She noted that it had been established that for the purposes of deciding claims about human rights breaches, proceedings needed to be examined as a whole, after their conclusion and not while they were still underway.

“While odious that a co-author is not arraigned with the other co-accused, this is up to the prosecution, at this early stage, the request for the expunging of his evidence is being denied.”

Gatt, for Keith Schembri, declared that in view of this decree, the defence was unable to reply as to whether or not it is contesting prima facie, “because the same accused respectfully contends that the court is going to decide on the issue of prima facie on the basis of testimony that his defence was precluded from controlling or cross-examining. This is our position.”

The other defence lawyers agreed with these submissions.

Lawyer Michael Sciriha added that his client, Craus’ would add that in spite of all the setbacks that the defence had endured, with respect to Craus, it was “evident that the prosecution had not reached the lowest level of proof, on a balance of probability. In order not to close the doors of investigation completely on Craus, the inquiring magistrate had described his involvement as marginal.”

“The court must make a profound examination of the issue of whether a person who has been criticised from all sides, yet who testified nonetheless, when deciding on whether Craus has a case to answer, the court cannot rely on the testimony of a man who despite claiming to have been pardoned, yet refuses to testify in order not to incriminate himself.”

“Otherwise, we would be using the system adopted by Pilate,” said the lawyer.

The court adjourned the hearing till tomorrow when it will issue a decree on prima facie for all of the accused.

Clarification: A previous version of this article stated that Melvin Theuma took to the witness stand today. This is incorrect since the reference was to a previous sitting when Theuma was going to testify. This error has been rectified.