Police were told Theuma pardon meant he could not be charged on phantom job

Police inspector testifies in court that lawyers from the Office of the Attorney General had said no charges could be issued against Melvin Theuma on phantom job due to presidential pardon

Melvin Theuma. Photo: James Bianchi/Mediatoday
Melvin Theuma. Photo: James Bianchi/Mediatoday

The magistrate presiding the compilation of evidence against five men accused of giving a phantom government job to Melvin Theuma – the middleman in the murder of Daphne Caruana Galizia – has rejected a request to expunge testimony given by Theuma to an inquiring magistrate, from the record.

Rejecting the request from the defence to expunge Theuma’s inquiry evidence as he had refused to testify in these proceedings, Magistrate Monica Vella said that as the case was still at the defence evidence stage, the defence still had “every opportunity” to summon Theuma as a witness.

Lawyer Edward Gatt, in view of the decree, asked the prosecution to summon Theuma to the stand to see whether he would opt to reply to the defence’s questions. “We’ll play cat and mouse, then,” he said.

Lawyer Stefano Filletti cross-examined police inspector Nicholas Vella, asking him whether any charges involving undue payment had been filed against Theuma. “The police investigated and requested a magisterial inquiry, which was carried out. So far neither the police nor the inquiring magistrate felt the need to press charges,” replied the witness, who no longer forms part of the fraud and money laundering squad, and is now working in the traffic section.

“So your investigation concluded that Theuma had received money which he shouldn’t have and you prosecuted the person who paid him. Don’t you consider Theuma to be an accomplice in the same crime?” probed the lawyer.

“To date. No.”

“What is the difference between the defendants and Theuma?” asked Filletti. “The pardon,” explained the inspector.

“Are you of the opinion that Theuma should have been arraigned, but he wasn’t because of the pardon or that he should not be charged at all?” “Because of the pardon,” Inspector Vella said, going on to confirm that had the pardon not been issued, Theuma ought to have been charged.

FIlletti then suggested that the pardon didn’t protect Theuma from prosecution for this offence. But the inspector disagreed. “That’s not my interpretation.” The magistrate interrupted, pointing out that it “wasn’t a matter of interpretation but of what is written in the pardon, which was not yet exhibited in the acts.”

“The advice we were given was that it covered Theuma in this case,” clarified the inspector, naming prosecutors Francesco Refalo and Andrea Zammit from the office of the Attorney General as having advised him that Theuma’s pardon also covered these proceedings.

“The AG advised you that he’s covered and Theuma stills says he risks being incriminated,” “There’s something wrong, right?” suggested the lawyer, asking whether the AG had given the police any further instructions after Theuma’s refusal. There weren’t any, replied the witness.

Edward Gatt addressed the court saying that the defence lawyers wished to jointly express a concern about today’s decree. “We have a situation where Theuma appears, on this issue, to be neither here nor there… He testified, then refused to be cross-examined. We need this issue to be addressed immediately.” The lawyer requested that Theuma be brought to court today so that he can at least declare what his position on testifying will be.

The sitting resumed at 2pm, when Theuma was escorted into the courtroom by bodyguards.

Yorgen Fenech’s lawyer, Charles Mercieca, suggested that the court might want to caution the witness that his testimony could be self-incriminating. Theuma’s lawyer Kathleen Calleja Grima said her client would be invoking his right not to incriminate himself.

The Magistrate said the witness would be asked the questions anyway and left it up to Theuma to decide on how to reply.

Filletti asked Theuma whether he had ever received money that he hadn’t been entitled to, or had been employed by the government, but Theuma replied to every question, even those as to whether he was confirming what he had previously testified about, by saying “I choose not to answer.”

The mantra-like refrain was repeated when asked whether he confirmed that his testimony before the magisterial inquiry was not precise, having referred to buildings and addresses that did not exist, or that he had visited Castille for reasons different to those which he had claimed.

“Do you remember testifying in the inquiry? Do you confirm what you testified? Is there a reason why you don’t want to confirm today, that which you had said before?” asked lawyer Mark Vassallo, representing Keith Schembri in the proceedings.

A final catch-all question: “Do you confirm that what you told magistrate Ian Farrugia was not true?” But Theuma stepped off the stand at around 2:30pm, having said nothing but “I choose not to answer” around two dozen times.

Lawyer Charles Mercieca dictated a note on behalf of Yorgen Fenech, the man accused of commissioning the assassination of Daphne Caruana Galizia, asking the court to order the expunging of Theuma’s testimony from the acts.

Testimony that was not subjected to cross-examination could not be used as evidence, submitted the lawyer. The other defence lawyers joined in with the request.

But the police inspector disagreed with expunging the testimoy. In a cutting reply on behalf of all the defendants, Filletti said that the basic principle of the right to a fair hearing was the right to cross-examine prosecution witnesses and nobody can deny this. “That the prosecution, in particular the AG, doesn’t know of the existence of Article 6 of the European Convention on Human Rights or Article 39 of the Constitution, which are taught in the first year of the law course, is also surprising...”

The lawyer submitted that the defence had been denied the opportunity to cross-examine a witness, solely because of the work of the AG. “The most ironic and prejudicial thing to the defence is that despite the AG having advised the witness Melvin Theuma that he is not under the control of the court in terms of a pardon, which is not available to the court – and which is therefore hearsay – the witness is still afraid that his testimony will incriminate himself.”

The defence said since the witness had exercised his right not to reply, his testimony to the magisterial inquiry – in which the defence had no right of audience – should be expunged. “This is the first occasion where the defence can conduct a cross-examination of the witness,” Filletti observed.

“The prosecution is agreeing with the defence arguments made about the lack of cross-examination of the witness, but is not agreeing with the removal of the testimony from the acts,” said inspector Vella for the prosecution.

The magistrate said the court did not need to issue a decree if all the parties were in agreement that Theuma’s evidence was to remain part of the acts but be ignored. “The prosecution is agreeing with the defence’s arguments about the lack of cross-examination of the witness and that the testimony should be disregarded, but not that it should be expunged from the acts.”

The defence, reserving its position on the removal or otherwise of the testimony, at this stage said it would only agree "that Theuma’s testimony be disregarded in full.”

The case was adjourned to 12 July for further cross examination and defence evidence.

Lawyer Stefano Filletti is representing Anthony Muscat in the proceedings. Anthony Ellul is being represented by lawyers Vincent Micallef Jacob Portelli. Lawyers Edward Gatt and Mark Vassallo are appearing for Keith Schembri. Lawyer Michael Sciriha is defence counsel to Sandro Craus. Yorgen Fenech is being defended by lawyer Charles Mercieca.