Yorgen Fenech lawyers say bribery prosecution ‘entirely malicious’ in AG appeal

A judge is to rule on whether there are grounds to continue hearing the Attorney General’s appeal against the acquittal, on bribery charges, of two of Yorgen Fenech’s lawyers.

The decision will be delivered next January before the case can continue being heard on its merits.

Lawyers Charles Mercieca and Gianluca Caruana Curran had been charged with attempting to bribe Times of Malta journalist Ivan Martin by handing him a wad of cash at the end of a meeting at their Valletta office. Martin had refused the offer and disclosed the incident to his editors, who then reported the matter to the police.

The criminal case was thrown out last June, with Magistrate Natasha Galea Sciberras noting that the police’s prosecution on the charge of active bribery in the lawyers’ regard had been fatally undermined by the articles of the law cited by the Attorney General in her note of referral, which dealt with passive bribery in the private sector.

The Attorney General’s Office had subsequently filed an appeal, which continued before Mr Justice Aaron Bugeja this morning.

On behalf of the Attorney General’s Office, prosecuting lawyer Anthony Vella summed up the salient point of the Attorney General’s argument - that the court of first instance had not analysed the merits of the case and had simply proceeded to acquit the accused because the AG had cited the wrong offence - so called “passive bribery” - in submissions, a different offence to that of “active bribery” as had been specified in the charges issued by the police.

“We are not here to find the appellants guilty at all costs. We are here so that an analysis of the merits of the prosecution’s evidence is carried out,” Vella said. He rejected the defence’s allegation that the appeal “was another step in the malicious prosecution of the defendants.”

“Here the AG exercised the legal right to file an appeal, which arises from the law. Exercising a right cannot result in a malicious prosecution, and was founded on legal grounds…This is not an incident which we invented, but was a result of an investigation triggered by a report in the media. I don’t know what the defence is trying to argue here.”

“We are making this request so that in the eventuality that this legal point is overcome, the case is heard on the merits, something which has not happened so far.” 

Vella likened the situation to the way the crime of bodily harm is dealt with in the Criminal Code, in which one section of the law lists the essential elements of the offence while other sections go on to establish the punishments.

Lawyer Stephen Tonna Lowell, representing Mercieca and Caruana Curran, insisted that the prosecution was “entirely malicious,” however, going on to detail stratagems allegedly employed by the police during the lawyers’ interrogation.

“Let’s begin with disclosure. When the lawyers were being questioned, the Assistant Attorney General was in the corridors, directing operations,” Tonna Lowell said, also pointing out that Martin had not filed a criminal complaint, but had only made a declaration.

The lawyer told the court that the prosecution had refused, in writing, to show him a copy of Martin’s declaration. It was the courts who had eventually granted disclosure of the evidence to defence, not the AG, he said.

After Caruana Curran had released his statement to the police, and before Mercieca’s questioning began, police interrogators had told Mercieca that Caruana Curran had “thrown him away,” and suggested that if he continued to use the services of Giannella De Marco to defend him, she would “spit him out.”  This was not true, he said. Lies are not permitted to be used as a stratagem during interrogation, pointed out the lawyer.

Around the same time the statement was taken, the Attorney General had “abusively” told De Marco that she could not represent her son and had then reported her to the Chamber of Advocates over a conflict of interest. The Chamber had swiftly replied, telling the Attorney General that conflicts of interest are issues that are dealt with between the lawyer and the client.

Tonna Lowell pointed out that the Attorney General’s application for the appeal did not mention corruption, instead leaving it to the court to raise the issue.

Martin had testified to having agreed to meet Charles Mercieca in order to discuss Martin’s investigations into former Police Commissioner Lawrence Cutajar.

“How was the allegation investigated? They sent for Ivan Martin, then some Times of Malta employees, and then they sent for the appellants.” 

In court today it was claimed that Martin had then suggested to the two lawyers that he had been told of a 14-minute recording of a phone call between Edwin il-Gojja Brincat and former police commissioner Lawrence Cutajar.

Tonna Lowell emphasised that Martin had only been asked this in cross-examination, saying that during the examination in chief the prosecution only asked the journalist four questions. “But during his cross-examination, Martin had explained that what had happened tallied with what Caruana Curran and Mercieca had said.”

Despite this, the prosecution had not sent for the lawyers again to investigate this discrepancy, the lawyer alleged.

Pointing out that the Attorney General had not consented to summary proceedings, allowing the case to continue as a compilation of evidence, instead, Tonna Lowell accused the Attorney General of “controlling things from behind the scenes.”

Accusing the public prosecutor of trying to mislead the court, the lawyer highlighted the fact that the Attorney General’s appeal application only stated that the Court of Magistrates had made an error in its interpretation of the law.

“We have no problem with the court examining the case in detail, there is no corruption and never was…There are none of the facts which could lead to the crime of bribery in the acts, much less the evidence,” Tonna Lowell submitted.

But in view of the single ground cited by the Attorney General in the appeal, Tonna Lowell argued that jurisprudence had established that the appellate court could not look into the evidence should that ground be rejected. “When the court arrives at the conclusion that there is no incorrect interpretation of the law, the court must stop there,” he said.

Taking aim at the Attorney General’s other arguments, Tonna Lowell argued that “the singular element of the crime is missing, so to argue that the crime is described in one section of the law and the punishment in another is absurd.”

The prosecution had avoided quoting jurisprudence or doctrine in support of its arguments “as it is an invention, which is contrary to both jurisprudence and doctrine,” alleged Tonna Lowell. Quoting a list of eminent judges, jurists and presidents of the Criminal Court, the lawyer said that none of them were in agreement with the AG’s interpretation, going on to say that Magistrate Galea Sciberras had correctly followed the principles they established.

The lawyer then proceeded to cite a long list of judgments; the earliest from 1901 and the latest from 2002, in which various courts had taken the same position as that adopted by the Court of Magistrates in its judgement.

“It is clear that the AG is trying to feed the court a point of law that is disagreed with by everybody and that has been consistently rejected for 102 years…the AG is trying to tell us that because magistrate Natasha Galea Sciberras followed this line of reasoning, this constitutes a wrong interpretation of the law.”

“The AG says that there is no distinction between passive and active corruption. It does exist, so much so that the Council of Europe and GRECO had also confirmed that the distinction does exist in Maltese law.”

Tonna Lowell, himself once a prosecutor with the Attorney General’s Office, pointed out that the offence of active corruption in the private sector was introduced in 2004, “but the Attorney General is telling us that this distinction doesn’t exist.”

He pointed to Section 601 of the Criminal Code which states that no accused person may be found guilty of an offence which is not expressly stated in the indictment, or which is not comprised or involved in the indictment.

“Why am I mentioning all this? It is evident that this rule, that you must only answer to the crime with which you are accused, also has constitutional implications…We must be careful, because it is tragic that the AG comes before this court and with a straight face tells us that the charges have a basis in law. That he comes here to tell us this is an insult not only to us, but also to the intelligence of the court.”

The lawyer insisted that “there is absolutely no evidence and there was no evidence,” as only three persons were present during the meeting, two of them being the accused and the third being Ivan Martin, who had previously confirmed under cross-examination that there had been "no quid pro quo, no contract." 

“The AG, possibly because she is being investigated by her minister, is trying to introduce new evidence.”

The judge pointed out that the Attorney General had not asked for this, and that the aggravating factor “is what it is.” 

Vella submitted that the Office of the Attorney General had mentioned that the first court did not hear any evidence, arguing that this issue needed to be overcome first.

The prosecution and the defence agreed that the court had first to establish whether the appeal could continue in the absence of the evidence on which the appeal was grounded.

The case will continue on 31 January for a decision on this issue.