Daren Debono ordered to testify against Vincent Muscat in connection with 2010 HSBC heist

Magistrate to decide on complying with judge's order for Daren Debono to testify against Vincent Muscat in connection with 2010 bank robbery attempt

A magistrate has ordered Daren Debono to testify against Vincent Muscat in connection with a 2010 bank robbery attempt.

The order came at the end of a marathon sitting which took up most of Thursday afternoon.

This was the latest round in the complicated game of legal ping-pong that has played out in the courts ever since the failed heist at the HSBC headquarters in 2010.

This morning lawyer Franco Debono, representing Muscat together with lawyer Roberto Montalto, told Magistrate Monica Vella that the defence had filed an application yesterday, requesting the magistrate to send the acts back to the Criminal Court.

This request was made in the light of Madam Justice Edwina Grima’s decision ordering Daren Debono to testify before the Court of Magistrates.

Describing the judge’s decision as minimal, the lawyer said the defence “believes, with all due respect, that her decision almost runs contrary to that given previously by Mr. Justice Aaron Bugeja”. He had reduced Debono’s punishment for dishonouring his plea deal.

Mr. Justice Bugeja, after hearing Debono’s case, had felt the need to sentence him to imprisonment, because he felt that his reluctance to testify and dishonour his oath had nothing to do with being afraid, argued the lawyer.

“If he had, he wouldn't have sentenced him to six months in jail, the maximum possible sentence for the offence.”

Had Mr. Justice Bugeja, and Magistrate Victor Axiaq before him, believed that the witness was terrified, they would not have imposed the maximum sentence but would have handed him a milder punishment, argued the lawyer.

During his hour-long submissions, Debono repeatedly accused Madam Justice Edwina Grima of having misquoted the defence’s submissions.

“In her decree she said: ‘contrary to the defence’s submissions, Daren Debono was not found guilty of perjury,’” the lawyer quoted.  He asked whether it was possible to administer an oath to such a person. “I read the charge, which stated that Debono, ‘as a witness, refused to testify’.”

“We are disappointed. When was Daren Debono ever accused of perjury? Doesn’t the AG know that there is a difference between perjury and the offence of refusing to testify?”

“This man can never have a fair hearing if the Criminal Court is misquoting the defence,” Debono argued, mooting the filing of a Constitutional reference.

He asked the court to remit the acts back to the Criminal Court and failing that, to request a Constitutional reference for a breach of fair trial rights.

The claims of both sides had to be analysed and considered for a fair trial, said the lawyer, arguing that the defendant could never have a fair trial if the court thought that he had based his claim on a non-existent perjury conviction.

“If a person refuses to take an oath or solemn declaration, can this person testify?” the lawyer went on. “The defence says it can’t because the law requires an oath or a sworn declaration. But if that person testifies without an oath, there is no sanction, because you did not testify under oath. An oath, besides the burden on one’s conscience, also has legal consequences.”

Daren Debono had said he would be testifying selectively, claimed the lawyer, repeating that he did not believe the witness’ failure to cooperate had really been down to fear. “A half truth is worse than a lie. This is the wisdom of common sense. We don’t even have half a truth here, because we are contesting everything he said.”

The defence lawyer argued that Muscat had already suffered a breach of his fair hearing rights because the submissions he made “had not even been analysed and worse than that, had been misquoted.”

“I don’t think this court can revise or revoke a decree issued by the Criminal Court, so we are humbly requesting this court to send the acts back to allow us the opportunity to file an application and be heard properly.”

Lawyer Anthony Vella from the Office of the Attorney General made his counter arguments next, pointing out that when the acts had been assigned to Madam Justice Edwina Grima from Mr. Justice Giovanni Grixti, the judge had asked the defence whether they had any objections and they had replied that they did not.

“Listening to the defence’s submissions, it felt like I was listening to an appeal. We cannot enter the merits here, there is a proper forum where the issue can be addressed.”

The application filed yesterday asks the court to remit the acts to the Criminal Court and it is only this issue that we must decide here.

Vella explained that the AG is objecting to the request on the basis that the law precludes the Court of Magistrates from sending the acts to the Criminal Court before the witness is heard, except in very limited circumstances.

“This issue had already been raised last year. We now have guidance from the Criminal Court which has decided that the Court of Magistrates cannot send the acts back to it, before it carries out the task specified by the superior court.”

Vella criticised the “useless lengthy submissions on the merits” that had been made by the defence, saying that they had already been made elsewhere. “This court…is precluded from dealing with merits.”

Debono replied that the defence had to make the request for a change in the decree in order to allow it to exhaust its ordinary legal remedies. “Then, if that doesn’t succeed, we will have to resort to an extraordinary legal remedy - Constitutional proceedings.

Obviously we must use this remedy before the witness testifies.”

After hearing the submissions from both sides, the magistrate then retired to chambers to decide on the matter.

When the sitting resumed at 2:15pm, the magistrate rejected the requests detailed in the court application and ordered the proceedings to continue. The court ordered that Daren Debono be brought before it to testify.

The defence requested a constitutional reference, which would mean that the testimony would have to be postponed, but the court rejected it, saying that it could see no possible prejudice being suffered by the defendant as a result. 

But no sooner was this hurdle overcome, than another obstacle emerged to take it's place.

Daren Debono's lawyer, Edward Gatt dictated a note, requesting that his client not testify today because he would be filing a Constitutional case, in the coming days, in view of the developments in today's sitting, “In a case that has been ongoing for 12 years, I feel it would be more opportune that before the court decides whether to hear a witness, it awaits the direction of the Criminal Court.”

Reading between the lines of the Criminal Court’s decree, he said, it laid bare the difficulties faced by his client. “I am saying that a person has a right to silence, given by the Constitution and the European Convention. The Criminal Code creates a sui generis offence that whenever a witness ordered to testify avails himself of this right, he commits a fresh offence.

“I will be filing a Constitutional reference asking why this right to non-self incrimination is subject to conditions in this particular circumstance.”

Franco Debono embraced Gatt's submissions as his own. Debono said that the defence also needed time to analyse the Criminal Court’s decision. "Nobody is infallible and we need to have peace of mind that we were not misquoted."

The magistrate refuted the defence's insinuation that it was rushing things, saying that it wanted to hear the witness today because she had no other slot available for a sitting in the 30 day time frame established by the Criminal Code.

Magistrate Vella pointed out that the misquoting issue Debono was repeatedly raising had no bearing on whether the witness testified today or not.

“We are complaining because the decision is incorrect as it is based on a mistaken premise,” replied the lawyer.

It would have been the “simplest thing in the world” for the court to send the acts back to the Criminal Court. “Now the AG is objecting. No problem, but what difference is it going to make in a case that has been ongoing for 12 years, with this defence team for just the past year.”

Prosecutor Anthony Vella objected to the request for the adjournment, replying that Daren Debono is not at this stage a party to these proceedings and therefore could not request the substitution of these proceedings.

Remaining in the courtroom while she deliberated on the request after hearing the submissions by the prosecution, defence and the witness’ legal counsel, the magistrate subsequently adjourned the case to a date later this month for the testimony and cross-examination of the witness, Daren Debono.

Vincent Muscat is being assisted by lawyers Franco Debono and Roberto Montalto.

The Office of the Attorney General was represented by prosecutors Anthony Vella and Francesco Refalo. Supt. Fabian Fleri and Ins Joseph Mercieca appeared on behalf of the Commissioner of Police.

Daren Debono’s lawyers Edward Gatt and Mark Vassallo were also present this morning, observing the proceedings.

Vincent Muscat was assisted by lawyers Franco Debono and Roberto Montalto