Pilatus nolle prosequi 'not last word' insofar as charges are concerned, State Advocate tells judge

Former Pilatus Bank official Claudeanne Sant Fournier has asked to be a party in Repubblika’s case challenging the Attorney General’s decision not to charge several senior bank officials.

Claudeanne Sant Fournier, who was the bank’s money laundering reporting officer, was the only bank official, apart from the bank itself, to be charged with money laundering by the police.

However, a magisterial inquiry into the bank’s operations had indicated several other officials apart from Sant Fournier, who were never charged by the police after the Attorney General issued a nolle prosequi.

Repubblika is challenging the AG’s decision to issue a nolle prosequi.

Sant Fournier’s lawyer Stefano Filletti explained to Madam Justice Doreen Clarke this afternoon that this case was for administrative review of the AG’s actions on the Pilatus inquiry.

When Sant Fournier was arraigned, the charges had been issued against her personally, said the lawyer, adding that this had come as a surprise because she had been assured that this would not happen just two hours before her arraignment. “More importantly to this case,” Filletti said, “she was also arraigned vicariously.”

“So, she is carrying the responsibility for Pilatus Bank, because she had been one of its directors.”

There was a “vast difference” between Antoniella Gauci’s request to join the same case, which had been rejected and Sant Fournier's, argued the lawyer. This was because the AG had chosen not to proceed against Gauci, another former senior bank official, and had instead opted to only charge the MLRO.

“Antoniella Gauci’s fears were hypothetical, but Claudanne Sant Fournier’s are not. She stands charged vicariously, answering for the behaviour of the bank and all of its officials, including Gauci,” said the lawyer.

“So, she has an interest in understanding the decision taken by the AG. Because that decision has an impact on her, good or bad.”

The experts appointed to assist in the inquiry, Duff and Phelps, had placed Sant Fournier and Gauci on the same level at the bank,” he said. “Sant Fournier should have been Gauci’s superior, but the experts concluded that they both carried out the same function, operationally. Sant Fournier had also spent a long time away from the bank and so Gauci had been elevated as acting MLRO in her place.”

“If they are at par, doesn’t Claudeanne have an interest in finding out why this decision was taken with regards to her colleague?”

This was discrimination, argued Filletti. “What benefit did Gauci receive that Sant Fournier didn’t? Why did the AG choose to only charge her? Why is she answering for someone else’s actions?”

The decision not to prosecute Gauci, called a nolle prosequi, also affected Sant Fournier’s defence, Filletti pointed out, because had Gauci also been charged, she would have been a co-accused in the eyes of the law and therefore could not be forced to testify against her.

“The fact alone that Gauci was given a nolle prosequi, means that she is now a competent and compellable witness against Sant Fournier,” explained the lawyer.

Filletti told the court that at law, the bank as a legal entity did not have the capacity to intend the consequences of its actions, and so that had to be deduced from the actions of its employees, which included Gauci.

“The AG is playing god with people’s lives,” stated the lawyer. “I have the conclusions of an inquiring magistrate, irrespective of whether I agree with him or not. We know the State was under immense pressure to charge people at the time, and the only person to be charged is a mother of two children. Is she Pilatus Bank?”

Replying to the defence, lawyer Fiorella Fenech Vella, representing the State Advocate in the proceedings, explained that the AG had not objected to Gauci’s nolle prosequi, because should there be a change in circumstances, charges could still be pressed.

“At this stage, proceedings haven’t been filed against Gauci, but it is not excluded that proceedings could be filed in future.”

Fenech Vella suggested that this was not the correct forum to handle the arguments raised by the opposing counsel.

Filletti counter-argued that there was "no coming back" after a nolle prosequi is issued. “A nolle prosequi is fatal [to the criminal action].”

His client had an interest in protecting herself against actions taken by the State against her, said the lawyer, “but I also have an interest in this case because Sant Fournier is essential to conclude whether the AG’s decision is just and reasonable in the circumstances.”

“The difference in treatment, the discrimination, it is the antithesis of justice. The AG doesn’t have the luxury of using people as pawns. She cannot exercise her discretion arbitrarily and unjustly.”

Jason Azzopardi dictated a note on behalf of Repubblika, pointing out that today’s submissions meant “that the AG took the decision in under six months, with great haste to issue a nolle prosequi… and now, to cover her back, is leaving the door open for it to be revoked.”

He described it as a “legal heresy,” to say that a nolle prosequi could be revoked.

Fenech Vella replied to the arguments by saying that the AG had not issued a warrant under her signature, to order the discharge of the accused, but had used a different section of the Criminal Code which allowed her to direct that no proceedings were to be taken regardless of the instructions specified by the inquiring magistrate.

“Any order made by the AG is without prejudice to the AG’s right to order otherwise whenever new evidence becomes available,” she said.

The case was adjourned to Thursday for decrees on the applications filed today.