Judge expresses displeasure at slow pace of Lilu King prosecution, hints that bail may be close

The Criminal Court has warned prosecutors that its inclination to uphold future bail requests filed on behalf of Mohamed Ali Ahmed Elmushraty will increase as time passes.

Elmushraty’s lawyers, Franco Debono and Jose Herrera made submissions in yesterday’s bail hearing, arguing amongst other things, that although a statement about their client, made by a person accused in separate drug trafficking proceedings, had been mentioned by the prosecution, Elmushraty was not facing any drug-related charges.

“Not conspiracy to traffic, not trafficking, not importation, not aggravated possession and not even simple possession, and now you are saying there is an incriminating statement,” said Debono.

It was also argued that the fact that the compilation of evidence was being heard by magistrate Donatella Frendo Dimech, who normally presides over money laundering cases, demonstrated that even the prosecution considered it to be a case of money laundering and not related to drug trafficking, which would have been dealt with by magistrate, now judge Natasha Galea Sciberras.

The lawyers also submitted that the prosecution was dragging its feet in exhibiting the evidence against their client.

In a decree handed down yesterday, Mr. Justice Aaron Bugeja rejected Elmushraty’s latest request for bail, saying that in the circumstances of this case, he believed there was still place for the prosecution to be given a little more time to exhibit its remaining evidence as quickly as possible, stressing that this must be done without the risk witnesses being suborned or other evidence tampered with.

READ ALSO: Three months on, prosecutors struggle to substantiate allegations against 'Lilu King'

But although he rejected bail request, the judge chided the prosecution for the languid pace it has adopted in this case, ruling that “...the rhythm with which this evidence is exhibited must be speeded up, because although comparisons are odious, as rightly contended by the defence, this case about which an enormous fuss has been made in the media, is not too different from other similar cases where bail was granted, but which took place far from the eyes and ears of the mediatic army of Facebook, Instagram or Tik Tok.”

The judge noted that although Elmushraty’s current situation was not the same as it had been at the time of his arraignment in May, neither had it changed substantially since his last bail request was denied, on October 12.

Bugeja, himself a former prosecutor, ended his decree with what has been interpreted in some quarters as a stinging indictment of the way the case against Elmushraty has progressed. “However, the more time passes, the more this court becomes inclined to positively consider this request [for bail], particularly should there not be substantial progress in the collection of evidence.”

The judge, while saying he appreciated and understood that the case was complicated, as was the related ongoing investigation, said that he was of the opinion that these investigations ought to be carried out before charging individuals and not afterwards. “As much as possible, the prosecution of a case must happen after the investigators have closed their investigations and not have the investigations happening during the compilation of evidence itself.

“The aim of compilation proceedings is the gathering and exhibiting of evidence and not to fish for this evidence,” was the judge’s scathing observation.

One of the prosecutions objections to bail had highlighted the fact that Elmushraty had gone abroad while on bail, in relation to other ongoing criminal proceedings, without the court's authorisation, although he had still returned to Malta.

The judge rejected this argument, saying that it only showed that the State was failing to carry out its duties to the public. “... if this is true, it simply means that this country has a severe lack of control over persons granted bail by these court, in ensuring that their bail conditions are being obeyed. This is also a way in which the State would be failing in its duties.”