Daren Debono ‘it-Topo’ must still testify in HSBC trial, judge rules

Rejecting lawyers claim that Daren Debono is not an admissible witness, the Criminal Court orders Debono to testify before a magistrate in proceedings against Vincent Muscat

The Criminal Court has ordered that Daren Debono gives evidence before a magistrate in proceedings against Vincent Muscat, ruling that the defence was legally mistaken in arguing that Debono was not an admissible witness.

Muscat’s trial for his part in the 2010 botched hold-up of the HSBC Headquarters had been derailed by the last-minute admission made by his co-accused Daren Debono it-Topo, following a plea deal he reached 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 8:00pm on the eve of the trial.

When the trial was convened the next day, 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 case was sent back to the court of magistrates so that compilation proceedings could resume and the new witness be heard. But the case took another twist, when Daren Debono then refused to testify, citing fears for his safety and that of his family.  He was found guilty of refusing to testify and jailed for six months,later reduced to three on appeal.

Muscat’s lawyers, Roberto Montalto and Franco Debono had then filed a request to the Criminal Court,asking that the prosecution be prevented from using Debono as a witness during the trial, arguing that he could not be trusted and because he had been placed under general interdiction in 2017.

Judge: Defence is arguing under mistaken premise

In a decree handed down earlier today, Madam Justice Edwina Grima, presiding the Criminal Court, dismissed the request to bar Debono from testifying in the trial.

“It is the view of this court that the defence is basing its objections on a mistaken premise. This is because, contrary to what the defence is arguing, Daren Debono was not accused and convicted of… perjury, but of the offence of refusing to testify as a witness. 

“That a witness mixes things up in his testimony or otherwise does not want to take the oath or testify as requested, does not render that witness inadmissible…”

“The law grants the Court wide discretion in how it manages witnesses and the wording of the law implies that a witness who is not telling the truth on the stand can be forced to tell the truth and remain a competent witness, in spite of his reticence or reluctance to testify truthfully.”

The defence’s claim that Debono had refused to be administered the oath was untrue, said the court. “Not only, but when the court had repeated the oath more than once, he had once again confirmed his oath, although he had been indicating that he feared for his safety and that of his family should he be obliged to name these anonymous third parties.”

After examining his abortive testimony before the court of Magistrates in February 2022, the judge ruled that it was evident that the witness had been ready to testify and in fact had started to give his testimony, “but was finding it difficult to answer those questions which in his opinion could result in endangering himself and his family.”

The judge stated that once the Attorney General had reached a plea deal with the witness that rendered him competent to testify in these proceedings, the AG, with the help of the Commissioner of Police, must also see to placing the witness and his family in a witness protection program, as is his right. The last word on granting this protection was the AG’s said the court, pointing out that the public prosecutor could also request that Debono testify via video link from a remote location.

Rejecting the defence’s contention, the court said it did not have a situation where a witness was refusing to be administered the oath as it was alleging, and neither was it the case that the witness was refusing to obey the oath capriciously or that circumstances indicated that the witness was not going to tell the truth.

“Above all, neither is it true that the witness was found guilty of perjury in the 27 October judgement against him but of the offence of refusing to testify. A reticent or recalcitrant witness could be compelled to testify by the court and this attitude did not render his testimony as inadmissible a priori."

The judge wrapped up her decree by pointing out that the law under which Daren Debono had been placed under a general interdiction in March 2017 for perjury or taking a false oath, expressly stated that he was prohibited from serving as a witness “except before the courts of justice," which therefore meant that could serve as a witness in the trial.

Ruling that there was no reason for this development to displace the Criminal Court’s order, given as part of a decree on January 6, 2022, the judge ordered the acts of the case be sent once again before the Court of Magistrate for Daren Debono to testify, also ordering the AG to see to it that the witness received all the protection that could be deemed necessary, with the assistance of the Commissioner of Police.