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Vitals fallout continues: Case stalls after prosecution fails to inform all parties
LIVE | Chris Fearne, Edward Scicluna and 13 others face fraud-related charges, a day after Joseph Muscat’s arraignment
29 May 2024, 9:45am
Matthew Agius
Matthew Agius
1 min read
The fallout from the hospitals inquiry continues today with the arraignments of former Deputy Prime Minister Chris Fearne, Central Bank Governor and former Finance Minister Edward Scicluna, and 13 others on fraud-related charges.
The 15 defendants are to be accused of fraud, misappropriation and making fraudulent gain.
They will be charged the day after disgraced former politicians Joseph Muscat and Konrad Mizzi, as well as Muscat’s Chief of Staff Keith Schembri and a dozen others were also arraigned on more serious charges relating to fraud and corruption.
Those to be charged alongside Fearne and Scicluna include former permanent secretaries Alfred Camilleri and Joseph Rapa, current permanent secretary Ronald Mizzi, adjudication committee members James Camenzuli, Manuel Castagna, and Robert Borg, financial controller Kenneth Deguara, and five lawyers: Kevin Deguara, Jean Carl Farrugia, Aron Mifsud Bonnici, Deborah Anne Chappell, and Bradley Gatt. DF Advocates and DF Corporate Advisory Ltd will also be charged today.
Magistrate Leonard Caruana will be presiding over the arraignment, which is set to begin at around 11am.
Police Inspectors Wayne Rodney Borg and Superintendent Hubert Cini will be prosecuting, assisted by prosecutors Francesco Refalo, Rebekah Spiteri and Shelby Aquilina from the Office of the Attorney General.
Matthew Agius is Senior Reporter on Law and Court Affairs at MaltaToday.
He is also a Leg...
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"This means that one of the defendants is not notified with these proceedings, with all the legal consequences of this shortcoming. For this reason, the case is being adjourned to June 11 at 11am for the court to proceed according to law."
"Everyone knows what the legal consequences are," says the magistrate.
De Marco: the consequences are nullity.
"It's not me saying it, it's the law," replies the magistrate
The court to the prosecution: “For something like this, the court expects the prosecution to inform the court at 11am. This is a most serious shortcoming by the prosecution. Had this point been raised at 11am everyone here would be at home with their families right now."
Lawyer Giannella De Marco reads a statement by the Advocates Chamber, in which it asks its members to not continue working beyond 10pm.
The magistrate informs the parties that he will be ending the sitting in 30 minutes' time. He asks the prosecution to exhibit the notifications.
"The court notes that from these notifications it is amply clear that the defendants have been notified in their personal capacity and there is no reference to representation of DF Advocates."
We are approaching hour eleven of this arraignment and have not yet concluded the examination in chief. Only the defence lawyers remain in the courtroom. They appear to be in high spirits. They are laughing and slapping each other on the back.
The submissions on the requested freezing orders are pleasures yet to come.
Debono says he will be requesting the present proceedings be declared null. “Nobody is here representing DF Advocates.”
The other lawyers concur.
For what feels like the millionth time, the magistrate suspends the sitting again.
The magistrate asks the defence what it has to say.
Debono complains that “half the sitting had been wasted because of mistakes.” The magistrate tells the lawyer to stop, but he continues. “At 9:30pm the prosecution has requested an amendment to the charges. Fact.”
“We have a situation where they are requesting a correction which alters the nature of the charges. Unless the prosecution is going to request that the charges be declared null, but for the purposes of notification we are going to request it be notified anew.”
The court asks the prosecution to confirm who they had notified with the summons.
Spiteri replies that there had not been a notification to DF Advocates per se, because Jean Carl Farrugia, Kevin Deguara and Kevin Deguara had all been notified in their individual capacity and as representatives of DF Advocates.
Magistrate: “You have chosen to charge it as an entity. So, it needs to be notified.”
Spiteri underlines that the money had been channelled through DF Advocates.
Debono accuses the prosecution of stretching their case and repeats his claim that they had rushed to prosecute. “I am going to be clear. If they continue to insist, they are going to expose the Maltese State to €20 million in damages!” he shouts.
The magistrate orders the lawyer not to raise his voice.
We’re back in session.
Prosecutor Rebekkah Spiteri reiterates that the prosecution will not be withdrawing the charges against the partnership in question.
She says the prosecution is requesting a correction to remove the C registration number for DF Corporate Services. This change would not have any effect on the other defendants.
While the court is in recess, Debono continues to rant at the prosecution, accusing them of rushing to file the charges and protesting at the magnitude of the freezing orders they are requesting.
Senior court reporter Matthew Agius says only thing which appears to be certain at this stage is that “we are in for a long night”.
“I hate to say it, but they have sworn a false oath. I am giving them an opportunity, indicating that the number is wrong. It might have been a mistake before, but now we are inviting them in open court to, on oath confirm their position.
The €20 million freezing order is based on a premise that the sworn charge is correct, argues the lawyer. “This is how serious it is.”
Jabbing his finger angrily, Debono warns that he would be requesting the proceedings start again from the beginning should the prosecution insist on continuing in this manner.
The magistrate suspends the sitting again for the prosecution to decide on how it wants to proceed.
“We are being practical here and if it is going to be withdrawn, we are not going to request certain things we are entitled to.” Debono is referring to the possibility of having to restart the arraignment.
The magistrate notes that there are several documents in the file before him where the lawyers state that they are acting on behalf of DF Advocates.
“We have already explained our position,” Refalo says.
Debono insists that the prosecution had “clearly made a mistake” and that they must confirm on oath.
Refalo draws the court’s attention to the fact that DF Advocates is referred to as a civil partnership before the Contracts Revision Board. He also notes that the entity had filed applications which were signed by individuals who are present in the courtroom today.
Refalo states that the Criminal Court itself had, in fact, issued an attachment order against DF Advocates.
Debono insists that the prosecution is mistaken and must withdraw the charges, or at least amend them.
The lawyer argues that the separate juridical personality of the firm must be supported by a document. "What are they going to exhibit?" He repeats that this is all the result of "excess haste."
Debono says that if one of the defendants is not present today, then today's sitting is null in its entirety. "But we are being practical, and requesting the court to ask the prosecution to state what they are going to do with the C-number listed in the charges."
The prosecution had sworn this charge on oath, said the lawyer, and suggested that they should be asked to confirm whether the C-number on the sworn charges is correct.
The Magistrate returns to the courtroom and the sitting resumes.
Refalo explains that “we have three people before us who can answer for DF advocates: Jean Farrugia, Kevin Deguara and Kenneth Deguara.”
"This entity, DF Advocates is represented in this courtroom today. These three individuals, or any one of them can answer for the charges against it."
The defence suggests that the prosecution withdraw the charges against the companies. The prosecution refuses to.
Charles Mercieca argues that case law has established that if a human being is not present in representation of a company being charged, it cannot be charged.
The magistrate adjourns the sitting for five minutes.
In rebuttal of the argument that DF advocates is simply a trade name, Refalo explains that DF Advocates is a separate entity. “Whether it is a trade name or something else, someone must answer for it.”
Franco Debono tells the court that he wants to make a "small point," at which point the magistrate stood up and walked out of the courtroom.
Lawyer Ezekiel Psaila asks who the prosecution expected to plead on behalf of DF advocates, when it was asked to plead. He argues that it was simply a trade name.
The lawyer appears to be arguing that DF Advocates is not a legal entity. Refalo replies that for the purposes of the law, it is a body corporate.
Chris Fearne, Edward Scicluna, Ronald Mizzi, Alfred Camilleri, Joseph Rapa, Kenneth Deguara, Kevin Deguara, Jean Karl Farrugia, Deborah Ann Chappell, Bradley Gatt, Aaron Mifsud Bonnici, James Camenzuli, Manuel Castagna, Robert Borg all plead not guilty.
We are finally moving on to the plea stage of the arraignment. It’s taken over seven hours to get here.
Refalo rebuts the submission, arguing that every defendant had been given a copy of the 1,216-page report and therefore knew on what basis they were being charged.
The court said it deemed that at this stage, the proces verbal could not be exhibited, because the defendants had not yet entered a plea and the prosecution had not begun its evidence.
“My decree is not a discussion,” adds the magistrate, ruling the request for a constitutional reference to be frivolous and vexatious.
Tonna Lowell tells the court that even though he and his clients had read the 1,216 pages, they were still not sure why they were here.
Inspector Borg, in reply to a question from De Marco clarified what he had used as a basis to issue the charges. “I went through the inquiry proces verbal, the 1,070 pages stating what the experts found and the magistrate’s recommendations.”
The magistrate orders the defendants to stand up.
At that moment, another defence lawyer, David Farrugia Sacco for James Camenzuli, stands up to tell the court that he was also going to request a constitutional reference.
The magistrate tells the people in the dock to sit down, warning the defence that this arraignment would be completed today even if it took till 10pm.
He justifies his request for a Constitutional reference with the argument that a requirement is missing. Anticipating the prosecution, he says this is not a frivolous or vexatious request, because the law requires a person who is to be charged be informed of the evidence against them.
The magistrate tells the lawyer that her question about what part of the inquiry was, was not about the testimony which the inspector just gave.
Franco Galea asks what had led him, as a prosecutor, to issue the charges. Refalo: “this is simply a rewording of Debono’s question.”
Filletti says the court cannot proceed to the examination of the defendants without the report.
The lawyer explains that she was trying to establish what part of the inquiry he had based his charges. So, you simply relied on the recommendation of the charges made by the magistrate.
Refalo objects to the question, because it was not about the question that the inspector had testified, that is the investigation, and was about the inquiry.
Inspector Wayne Borg takes the witness stand. The magistrate asks him whether a police report had been made in this case. “No.”
Debono asks the witness what he meant by report. “That I would have conducted the investigation myself. In this case I signed it as a prosecutor.”
“So you signed the charges but you did not investigate it. On what basis did you issue the charges?”
“On the magisterial inquiry,” Borg replies.
Probed further, the inspector states that he had acted upon the recommendation of the inquiring magistrate.
The magistrate also notes that it is 7:20pm and the examination in chief had not yet been made.
“I was the second inspector in charge of this inquiry. Neither he, nor I, conducted this investigation,” Inspector Borg tells the court.
Lawyer Giannella De Marco suggests that the witness had issued charges on the basis of the recommendation by the magistrate, but that he did not know on what evidence the recommendation had been made.
Debono argues that for the police officers to have sworn the charges on oath, they must know what led to them.
Tonna Lowell explains that here there was no police report, but a private citizen’s report to the magistrate.
“If the Superintendent and Inspector signed this charge without having investigated anything is their signature simply a formality?” asks Debono.
The court, having heard the defence’s submissions in particular the confirmation that there is no police report, said it doesn’t see that police officers can confirm something which hadn’t taken place.
After hearing a series of legal arguments, the magistrate turns to the prosecution and asks if the lawyers are correct to understand that there is no police report.
Refalo confirms that no police report had been made and that the charges had been issued on the basis of the magisterial inquiry. “But this will be confirmed by the police inspectors when they testify.”
Debono: there should be a brief statement about the police investigation. “These procedural points are a series of safeguards against injustice,” argued the lawyer. “The law doesn’t want or contemplate an investigation and charges where the police are not involved… The law requires a brief statement about the investigation under oath.”
He accused the prosecution of “charging people haphazardly”.
‘We are in a position where the defence is saying “hey, where’s the evidence? Can you please testify about the evidence?”
“Nobody seems to want to testify. They should be falling over themselves to tell me what my client did wrong.”
Filletti submits that the law only gives the police power to investigate crimes. “The inquiring magistrate is meant to only preserve the evidence collected by the police,” he says.
The court should be assured that the charges are not an invention, a fairy-tale, but the result of a police investigation, Filletti argues.
Filletti requests that before the defendants are required to plead, the law required the court to hear the police testify about the report on oath. The other defence lawyers state they wish to joint Filletti in this request.
Refalo objects to the request on the grounds that in this case there was a magisterial inquiry which is the entire investigation. “It is for this reason that there is no reason to hear the report. And neither does nullity arise if it is not heard.”
The request was also being made at the wrong time, Refalso says. After the defendants enter their pleas, and the inquiry will be exhibited and this requirement will be fulfilled.
Galea: “The prosecution is telling us without telling us that it has no report to exhibit… procedure is not optional and binds everyone. If there is no report at this stage, it will be noted and we will take it from there.”
De Marco submits that the law does not state that the police report is optional. This resilience on the part of the prosecution makes me think that not even they know. The oath on the charges implies that they know the evidence on which they issued the charges, but their reticence indicates otherwise.”
Neither the police nor the AG seem to know on what basis they issued the charges. “What are we expecting? That the inquiring magistrate be brought to testify on what basis she recommended the defendants be charged?”
The magistrate, addressing the defendants directly, is now explaining to each of the defendants what they are being charged with and what constitutes the crime in simple terms.
When the sitting resumed at 6:31pm, the magistrate decreed that the Criminal Code explicitly lays out the procedure and states what the defendant may do.
The court says that if this request is upheld at this stage, it would stultify the proceedings and so rejects it.
The arraignment will now proceed to the examination of the defendants, who now will be entering their pleas. The court explains the consequences of pleading guilty, not guilty and not replying, to the defendants.
With the court in recess, Franco Debono turns his guns on the Registrar of Criminal Courts and Tribunals, Franklin Calleja, lambasting him for the delays in obtaining transcripts of witness testimony. “There are people who have been waiting six months for a transcript. Pastazata.” Kurt Sansone
Franco Debono argues that, as today, the AG is now part of the evidence gathering process, and must therefore submit to questioning. The lawyer bickers with the magistrate, after being stopped from making similar submissions.
Franco Galea: “This is how it has always been done. Now if the prosecutor has difficulty in testifying about the charges she has sworn on oath, then there are consequences to that.”
The magistrate suspends the sitting and retires to chambers. Kurt Sansone
It took us five hours plus to get the charges being read out after several contestations by defence lawyers. And after that hurdle was overcome, we’re in a fresh bout of legalese as to whether the defence can cross-examine the prosecutor who actually read out the charges.
So far, nothing related to the merits of the case proper has been heard. You are right, it’s been all legalese until now. Kurt Sansone
Prosecutor Francesco Refalo insists the reading of the charges is not testimony. “Therefore, prosecutors are not witnesses in this case. The prosecution summons witnesses before this court,” describing the defence’s request as legally unsustainable. Kurt Sansone
Defence lawyer Stephen Tonna Lowell replies that where a court denies a request without good reason, this brings about the nullity of the compilation of evidence.
The defence insists that the prosecutors, who participated in the investigation, must testify. “The AG cannot summons the Tax Commissioner and two police inspectors to testify and deny the defence the opportunity to bring witnesses in support of its evidence.” Kurt Sansone
The magistrate dictates a decree. Although the prosecutors took an oath on the charges, the court says that it could not be interpreted as an oath administered to a witness who is testifying on facts they personally know. This is because the oath serves as a confirmation of the charges issued against the accused and that are read out in court.
The magistrate thus denies the request. Kurt Sansone
Franco Debono: “My question, which I addressed to the court, was to have the prosecutor indicate the part of the law where the prohibition of cross-examination of the prosecutor after reading out the charges on oath is.”
He argues that this question had not been addressed by the prosecution.
Franco Galea submits that once the prosecutor had chosen to take an oath on the charges, the defence had a right to cross-examine him about it. The defence would have no other opportunity to do so. “WIth all due respect, what a court decided yesterday is irrelevant. There is no rule of precedent.” Kurt Sansone
Franco Debono cites section 390 (1) of the Criminal Code, arguing that nowhere does this section of the law prohibit a cross-examination of the prosecutor.
What it actually says: “The court shall hear the charges read by the Attorney General or the officer of the Executive Police and the report of the Police officer on oath, shall examine, without oath the party accused and shall hear the evidence in support of the charges read. Everything shall be reduced to writing.”
He says that it would be “incredible” if the court were to refuse this request and would be a further breach of the defendants’ fundamental rights.
Lawyer Franco Galea submits that the prosecutors had confirmed the charges on oath and that they were therefore testimony.
He repeats his earlier request about disclosure of evidence, which had been refused as premature in view of the fact that the charges had not yet been read out.
Prosecutor Francesco Refalo replies that the charges were read out and that no witnesses had been subjected to an examination. He asked how come the defence was asking for cross-examination, when there had been no examination in chief.
“We are saying here that the prosecuting officials, not as individuals but as an office, have taken an oath on the charges and not as witnesses.”
An identical request had been made yesterday before Magistrate Rachel Montebello and had been denied, Refalo says. Kurt Sansone
The prosecutor has read out the charges against all individuals.
Defence lawyer Stefano Filletti on behalf of his clients, Ronald Mizzi, Alfred Camilleri, Joseph Rapa and Deborah Chappell, requests the court to allow the defence to cross-examine the officials who had read out and confirmed on oath the charges which they had drafted.
Filletti: “The defence reminds that this document was drawn up by them after they evaluated the evidence at their disposal - all the material evidence. It must therefore be established how, in what manner and on the basis of what evidence, they reached the conclusion that the extremes exist to charge Mizzi, Camilleri and Rapa; why they added an aggravating factor as a crime; how in the case of Deborah Chappell they arrived at moral conviction that there is a justified reason for the issuing of a €40 million freezing order, because according to them that is the amount of the proceeds of crime she had received.”
Filletti says after they are to submit to cross-examination, which is a sacrosanct right for the defence to confirm something said on oath. Kurt Sansone
15 defendants stand charged today in connection with the Vitals hospitals corruption case. These include former deputy prime minister Chris Fearne and former finance minister and current Central Bank governor Edward Scicluna. Other notable names are those of permanent secretary Ronald Mizzi and former permanent secretaries Alfred Camilleri and Joseph Rapa.
Charges have also been filed against lawyers and accountants who lent their professional services to the deal.
Fearne and Scicluna are accused of fraud, misappropriation and making fraudulent gain.
They are being charged a day after former prime minister Joseph Muscat, Konrad Mizzi and Keith Schembri and a dozen others were arraigned on more serious charges relating to corruption and criminal conspiracy. Kurt Sansone
Meanwhile, in a Facebook post on Wednesday afternoon, former prime minister Joseph Muscat thanked supporters for showing solidarity with him and his family on Tuesday. He said the demonstrations were peaceful, which shows the country has reached a level of maturity which allows people to voice their opinions respectfully.
He also said he would have liked to share his views on Tuesday’s sitting, but court proceedings prohibited him from doing so. Muscat stated he is preoccupied about an Attorney General in a European member state that denies someone’s freedom of expression.
Prosecutor Rebekah Spiteri begins reading out the lengthy charges against each individual and company in today’s proceedings. This will probably take quite a while. Kurt Sansone
Franco Debono continues to work himself up, telling the court that its role includes ensuring that his clients rights are not breached.
“What else, dottore? I have heard this argument at least six times now,” replies the magistrate.
The magistrate decrees that at this stage, as the charges have not been read out, the criminal process has not yet started and rejects the defence’s request for a constitutional reference. The magistrate asks prosecutor Rebekah Spiteri to read out the charges. Kurt Sansone
In reply, AG prosecutor Francesco Refalo makes reference to the Constitution which establishes that the court may refuse to uphold such a request for a constitutional reference if the court is of the opinion that the request “is merely frivolous or vexatious.”
Refalo says the defence’s request is totally frivolous and vexatious. “The proceedings have not yet started and so a constitutional reference can never be requested at this stage,” he argues.
Refalo points out that the Constitution states that the right to protection from deprivation from property without compensation does not apply if it is “a penalty for or consequence of breach of the law, whether under civil process or after conviction of a criminal offence.
Franco Debono interjects: “So are we saying that the past five hours do not count as part of the proceedings?”
The magistrate points out that the defence itself had said it was making preliminary points and tells the lawyer to move on to his next point. Kurt Sansone
The magistrate returns to the court hall and asks what the defence’s position is.
Franco Debono says the defence would be requesting a constitutional reference on behalf of Kenneth Deguara, alleging a breach of fundamental rights.
Debono: “We are saying the law itself breaches human rights. As soon as Kenneth Deguara’s charges are read out, there will be a request for a freezing order for €14 million. He is in the strange position, and I don’t understand the resilience, where the prosecution will be requesting a freezing order for €14 million from a court which has no evidence before it. The majority of the evidence is in the inquiry which the prosecution has already said it cannot exhibit here.”
Describing the situation as ridiculous and highly unjust, Debono says the law on freezing orders had changed for nothing. “It’s probably made it worse. I might want to contest prima facie this month. How am I going to do it without the evidence? The defence humbly submits is a breach of the constitution and of the basic rights held by every person in the Maltese islands.”
Debono, together with Ezekiel Psaila and Jonathan Thompson submit, on behalf of Kenneth Deguara alone, that the situation constitutes a breach of Deguara’s right to a fair hearing.
Debono adds: “Article 534AF of the Criminal Code is also incompatible with the defendants’ human rights, because it permits a state of fact where the prosecution may deprive the defendant of material evidence that is in its possession for a long time.”
Debono asks the court to uphold the defence’s request for a constitutional reference. Kurt Sansone
While we wait for court proceedings to resume, we suggest you read what Justice Minister Jonathan Attard had to say about the request by the prosecution in yesterday’s hospitals corruption case sitting for the imposition of a gagging order on all those involved.
Attard criticised the prosecution’s request for a gagging order, calling it disproportionate.
Meanwhile, Opposition justice spokesman Karol Aquilina condemned the minister describing his criticism as an “attack” on the prosecutor and the magistrate.
Kurt Sansone
The magistrate has once again suspended the sitting, apparently to allow the defence to discuss the development and come up with a position. Kurt Sansone
The magistrate is now reading out the decree in full. The court notes that it had ordered the prosecution to provide access to the inquiry.
“A reading of section 534(2) of the criminal code deals with material evidence and not all the evidence in the police’s possession.”
The court notes that it had been told that the defence was complaining about a document which had not even been exhibited yet because the charges had not yet even been read out.
“The court is also informed that the inquiry in genere is now exhibited in other proceedings. The court cannot order the exhibition of this evidence because as a state of fact, it is not in its possession anymore.”
As the evidence is now in front of another magistrate, he said he was unable to comply with the request. Kurt Sansone
Magistrate Leonard Caruana is back in the courtroom. He reads out the decree denying the defence’s request and orders the charges be read out.
Franco Debono immediately informs the court that he will be requesting a constitutional reference on behalf of Kenneth Deguara. “In view of the denial, I will be requesting a constitutional reference.”
Constitutional references, if granted, will suspend the case until the constitutional issue is decided. The court can, however, reject the request if it deems it to be frivolous. Kurt Sansone
Although five hours have now passed since the arraignment began at 11am, the defendants have not yet been officially charged. Instead, we have heard hours of legal bluster about whether or not the prosecution had complied with the court’s previous order to provide a copy of the inquiry to the defendants.
The court adjourned the sitting for an hour and is expected to emerge from that recess shortly with a decree on the defence’s request not to allow the charges to be read until the prosecution complies with the court’s disclosure order.
Once the charges are (hopefully) read out, the defendants will be asked to enter their pleas. After that, we can expect a few more hours of submissions on the requests for freezing orders. Kurt Sansone
Hello. We’re back. Journalists have been allowed back into the court hall. Kurt Sansone
This blog will pause until the sitting resumes at 3:30pm. Kurt Sansone
Lawyer Franco Galea on behalf of Bradley Gatt submits that the court cannot grant the defence an extension to the legal time limits in view of the amount of evidence, because the law does not permit it.
“If truly, the prosecution obeyed this court’s decree on what it had to disclose to this side, I would like the prosecution to declare whether it has any evidence against my client meriting disclosure, beyond a single email from 26 January 2015, sent at 6:12pm. If he can confirm this I can regulate my position,” Galea says.
Francesco Refalo from the AG’s office objects, because this deals with the merits of the case.
Franco Debono asks the court to consider a break, as normally happens in jury trials. The court rebuts: “But Dr Debono, in jury trials, there is a structure. Here we have not yet even read out the charges.”
Magistrate: “Lots of submissions, thank you. But not a single request for me to decide on.” The sitting is now adjourned till 3:30pm. Kurt Sansone
Franco Debono says time to prepare a defence includes a defence against prima facie in the 30-day period laid down by law. But, he insists, this is also important with regards to the freezing order.
“When the charges are read out and the freezing order for €20 million is imposed on me, how am I supposed to contest it without the evidence? If the court is going to order the reading out of the charges before disclosure, it is going to be committing a breach of the right to property,” argues the lawyer, loudly and animatedly.
The magistrate asks Debono to conclude his lengthy and repetitive argument.
“I understand that your point is that the moment you will be prepared to contest the freezing order is after you have examined the entire proces verbal and all the evidence.”
Debono stresses the gravity of the implications of the prosecution’s decision to impose a €20 million freezing order. “I would expect the prosecution to show me how that figure was reached.”
Should the court not press the prosecution to substantiate the amounts to be frozen, Debono says he respects that decision but it is his obligation to protect his client’s rights. At a minimum, he has to be allowed to see the evidence that led to the freezing order, Debono insists. Kurt Sansone
Several individuals and companies stand charged with having aided and abetted fraud and money laundering linked to the Vitals hospitals concession. Today’s accused include former deputy prime minister Chris Fearne, Central Bank of Malta Governor Edward Scicluna, Economy Minister permanent secretary Ronald Mizzi, and former permanent secretaries Alfred Camilleri and Joseph Rapa.
Fearne and Scicluna are charged with fraudulent gain with the inquiry finding they failed to use the power they had to put a stop to the concession agreement. Kurt Sansone
Almost three hours into the sitting and the charges have not yet been read. Lawyers have been making procedural and legal objections related to the manner by which the charge sheet was changed and afterwards claiming lack of disclosure that breaches their clients’ fundamental human rights.
By this time yesterday, not only had the charges been read but the accused had replied whether they were guilty or not. It seems that today’s proceedings will drag on… and on. Kurt Sansone
Defence lawyer Giannella de Marco submits that she had filed applications to this court to inform it that the prosecution had not complied with its decree about material evidence. “This court should know that the prosecution is the best friend of the accused, providing all evidence in favour and against the accused. So, if there is other evidence emerging from the parallel police investigation we wanted to see it. They ignored this request.”
She says that the magistrate herself, in the conclusion to the inquiry report, stated that the police investigation was to form an integral part of the proces verbal. Kurt Sansone
Stephen Tonna Lowell says it is pointless to spend hours having everyone interpret the court’s intentions in making its distinction between the proces verbal and the material evidence.
The law is clear in saying that the proces verbal includes the experts reports, and there is nothing saying that those reports do not include the appendices. We were never allowed to see those appendices.
“The proces verbal is not there to be interpreted, it is defined at law,” he says. “When the AG does not disclose the entire proces verbal, it is breaching the court’s order.”
He insists that the transcripts of the witnesses also form part of the proces verbal. “The AG thinks us idiots who don’t know the law and is using a definition that is not in the law, but possibly in his head.”
Tonna Lowell insists the court must clarify what meaning it was giving to proces verbal; whether it was that arising from the law or another one.
The lawyer explains that the inquiry says ‘X sent an email’ but the email itself is not available to the defence. Kurt Sansone
The magistrate turns to the prosecution to make their submissions. AG lawyer Francesco Refalo mercifully says that he will be brief.
“At no point did the prosecution breach any of the defendants’ rights. The law was followed at all times,” he argues.
With respect to the court’s 20 May order for disclosure, Refalo points out that the court itself had made a distinction between the copy of the proces verbal of the inquiry and other material evidence.
“When the court made that distinction, to us, it means that the prosecution, either the Commissioner of Police or the AG, gives access to the proces verbal in the prosecution’s possession and other material. That other material is not the magisterial inquiry, because had the court intended for the magisterial inquiry, it would have said so,” Refalo says.
This “other material” usually emerges from a parallel investigation carried out by the police. “In this case, the investigation was carried out by the inquiry and the results are in the proces verbal.”
The arguments about witnesses should be raised at a later stage, Refalo says. “At this stage, we are dealing with the charges. This court itself said that the point of the compilation of evidence is that the defendant has a view of all the evidence that will be used against him and control that evidence with cross-examinations.”
Any plea the defendants wish to raise they will be able to raise, but at the correct juncture, the prosecutor continues. “We have to follow procedure.” Kurt Sansone
Lawyer Michael Scirha for James Camenzuli submits that his client had been interviewed for just 3 minutes and sent on his way. Ezekiel Psaila, for Castagna, informs the court that when his client had been spoken to by the inquiring magistrate and had taken his lawyer with him, that lawyer was not allowed to join him, while Castagna was questioned by the inquiring magistrate.
“He was not given any of his rights or indication that he was a suspect and was then faced with notification of these charges,” Sciriha says.
Tonna Lowell, for Fearne and Scicluna, explains that he had several points to raise about admissibility and other matters but that this was not the point of this note. He had been given a copy of the inquiry report, but not the testimonies.
He says that if the charges are read out today, the defence would not have enough time to go through all the prosecution's evidence.
Lawyer Giannella de Marco, for Mifsud Bonnici, submits that because the prosecution did not want to indicate on what basis it had decided a freezing order for such an amount was required, this was a fishing expedition.
She and Charles Mercieca had written to the AG and filed an application informing the court that the AG had not followed its order for full disclosure.
Aaron Mifsud Bonnici was not mentioned anywhere in the conclusions of the inquiry, the lawyer says. No searches had been carried out in his regard either. Once the charges are read out, the defence would have a time limit to contest prima facie, explains the lawyer.
De Marco cites a European Court judgment which held that human rights had been breached in a similar situation. Kurt Sansone
Franco Debono argues that some defendants have a freezing order and others who don’t. “There is a request for freezing orders to the tune of 10, 20, 40 million… if we are coming here and accepting to freeze these millions without hearing any evidence, we are nullifying the effect of the amendments to the law on freezing orders,” he says.
Debono adds: “Yesterday I asked the prosecutor to substantiate a €20 million freezing order and he countered. Today I want to head off that counter-argument.”
The requisite to allow adequate time to formulate a defence requires the defendant to know what evidence there is against him, Debono argues.
“We are saying that before the charges are read out…” Debono says before having his sentence completed by the magistrate. “You are saying that before the charges are read out, you are granted disclosure of the evidence. I got that about 12 minutes ago,” the magistrate says.
Debono concludes his request, saying that it is in the spirit of respect to the right of a fair hearing. Meanwhile, Filletti adds that the boxes of evidence collected had been exhibited in court yesterday. The lawyer had filed an application requesting the inquiry proces verbal as well as the material evidence in the prosecution’s possession.
“This is more of the same,” remarks the magistrate. Kurt Sansone
Our senior court reporter Matthew Agius tells us that progress is awfully slow. The charges for each individual and company have not even been read out yet. Defence lawyers initially objected to the issuance of an amended charge sheet since the prosecution requested the removal of a company from the list of accused. After acquiescing to the request, defence lawyers for some of the clients are now arguing that the accused’s right were breached when they were not cautioned when questioned by the magistrate or in some cases were oblivious to the fact that they were under investigation. Kurt Sansone
We are now two and a quarter hours into the arraignment and the prosecution has not yet been able to read out the charges, due to numerous objections raised by the defence lawyers.
Franco Debono informs the court that the defence would be filing constitutional proceedings in order to obtain a remedy for the breaches of the defendants’ rights.
With respect to the defendant Robert Borg, the court is told that while he was required to testify during the inquiry, he was not afforded any of the rights normally granted to suspects, in breach of his constitutional right to a fair hearing and reserves his right to file the appropriate constitutional proceedings.
Franco Debono makes reference to a previous decree by the court where the magistrate had ordered the prosecution to disclose all its evidence to the defendants. “In today’s sitting we are asking that before the charges are read out… there are a number of issues which must be overcome and this is one of them.” Kurt Sansone
The magistrate dictates a note with Franco Debono’s objections. “Before the charges are read out and confirmed on oath, Franco Debono’s clients had not been spoken to by the police and neither had they been given disclosure of all the evidence relating to these offences and therefore their rights were breached.”
Lawyer Stefano Filletti lists the rights. “You have a category of defendants who were spoken to, but not given the right to a lawyer, their right to silence, and neither full disclosure.” He clarifies that he is referring to Ronald Mizzi and Joseph Rapa.
“At that stage, they were persons of interest, so much so that today, these permanent secretaries are inexplicably charged with the crime of fraud. Had they been given their rights, had the alleged suspicion been disclosed to them, which is still unclear because the inquiry did not attribute any incorrect behaviour to them, they would have addressed the irregularities at that stage,” Filletti argues.
When the acts were sent to the AG, they were once again deprived of the opportunity to clarify any misinterpretation that might have been. “This is a clear violation of their fundamental rights.”
The court hears how Alfred Camilleri and Deborah Chappell had never been spoken to or given the opportunity to provide an explanation.
Camilleri was arraigned after nobody sent for him. In Chappell’s case, while she had been spoken to as a suspect, but not given the rights to legal assistance, silence or disclosure, in her regard it was decided that she was withholding information, when she, as a lawyer, was bound by professional secrecy and, after seeking advice from the Chamber of Advocates, had been advised that she could not disclose.
Had she been informed that she was a suspect, she would no longer be bound by lawyer-client privilege and would have been able to provide that information “There was only one reason for this. They were not spoken to in order not to give them disclosure of the material evidence against them. This situation persists to date, as we have not been given access to this evidence.”
Debono wants to add something, which the court is unhappy about. “This forced attitude worries me,” remarks the lawyer.
The magistrate replies that he is not saying the lawyers cannot make submissions, but the court cannot with this number of defendants and lawyers, have every lawyer make the same submissions. Kurt Sansone
“Shall we read out the charges?” asks the magistrate, not as a question but more as a statement.
But Franco Debono says there are other irregularities that must be cleared first. The court asks him to briefly say what they are.
“You have people who were not spoken to by the police, not given disclosure, not given the opportunity to have their version of events heard. The decision to arraign a person is taken by the AG and the Commissioner of Police…” Debono begins.
The magistrate reminds the lawyer to keep it brief.
“Alfred Camilleri was not even aware that he was being investigated. It is a very anomalous situation where people are arraigned in court without having been spoken to by the police beforehand. This deprives them of their rights. Perhaps we have forgotten that there is a part of the Criminal Code which states that the prosecution must present all evidence for and against the defendant.”
“When investigators decide to prosecute and issue charges, they breached our rights by not sending for us to give a statement. I doubt I have ever encountered this before in 24 years practising law.” Kurt Sansone
Magistrate Leonard Caruana asks the defendants whether they were declaring themselves to be notified with the substituted charges.
Lawyer Ezekiel Psaila informs the court that his clients cannot accept notifications on behalf of DF Ltd because the company is today defunct.
Francesco Refalo recites what the law states that when a crime is committed by a company, every person who had decision-making authority or representation of that company at the time, the legal representation of the company in question is taken as being vested in that person.
The lawyers, however collegially accept that they have been notified with the charges. Kurt Sansone
Lawyer Franco Debono makes an observation, telling the court that the AG had, in fact added something. “Everyone heard him say that he had added nothing, bar the cancellation… but in truth, he has added something.” The court gives short shrift to the objection, observing that the difference was trivial and did not have an impact on the charges. Kurt Sansone
Our reporter Matthew Farrugia who is stationed outside the courthouse tells us the situation in Republic Street and Great Siege Square is pretty much business as usual. Meanwhile, while we wait for proceedings inside the courthouse to continue, let us hear what Chris Fearne told journalists earlier this morning when he arrived in Valletta.
The court has just upheld the request to register the new charges. It offers the defence additional time to acquaint itself with the ‘new’ charge sheet.
Stefano Filletti says the defence wishes to acquaint itself with the ‘new’ charges. Refalo for the prosecution tells the court it has no objection.
The court upholds the request and gives 20 minutes for the defence to review the charges. Kurt Sansone
The prosecution formally registers its request to substitute the charge sheet it had filed on 6 May with another one filed on 29 May, which has been circulated amongst the lawyers.
Lawyer Giannella de Marco informs the court that her clients Chris Fearne, Edward Scicluna and Aaron Mifsud Bonnici would not be joining the other defendants in this request.
The court, after having heard the submissions from both the prosecution and the lawyers, said it finds that, it is true that charges are usually registered with the court’s registrar.
“Naturally, this gives an identity to the act being registered in court. In these proceedings, that process has already taken place and in fact the charge sheet has been given sequence number 383/2024. What the prosecution is requesting is not the filing of new proceedings, but the substitution of the charge sheet. For this reason, the court is upholding the prosecution’s request and orders the substitution of the charge sheet.” Kurt Sansone
Stefano Filletti alleges that the new charges are not identical to the previous ones, but before he can explain why, the magistrate interrupts and points out that the new charges have not yet even been presented. “Let us not put the cart before the horse,” Magistrate Caruana says.
The prosecuting lawyer dictates a note on behalf of the prosecution, referring to an Article of the Code of Organisation and Civil Procedure, which states that the court may permit the substitution or change an act as long as this substitution does not affect the substance or merits of the case.
“Our point is that the case remains the same, the charges remain the same. There is no obligation, I repeat, that it goes through the registry [again] as they had already done so,” Refalo says.
Lawyer Franco Galea says it is up to the prosecution to choose what to do, but there are legal consequences to the course of action chosen. “This is not an issue of debate between lawyers, but a matter of public order. That a court has the correct set of charges before it, is a matter of public order.”
Filletti submits that it was the AG’s prerogative to charge everyone together, but adds that this meant any changes will cause the charges to be "denatured". “The manner of prosecution chosen means that he cannot even correct the acts were he to ask to.” Kurt Sansone
We are an hour into the sitting and the charges have not yet been read out to the accused. Our senior court reporter Matthew Agius gives us a quick recap of what has been happening in court so far:
The defence is arguing that the removal of one of the defendant companies means that the charges had not been properly presented in the registry. And because the charge sheet had been changed, the defendants still need to be notified with the new charges. Defence lawyers are raising their objections to the manner by which this is being done. Kurt Sansone
Franco Debono addresses the court to add to his previous argument, repeating that this is the result of a hasty prosecution. This is not a minor issue. “The prosecution is not in order when it comes here and exhibits a charge sheet without registering it.”
He points out that if the new charge sheet is registered today, it would be given a new number. Magistrate Caruana is seen to nod, while taking down a note.
Stefano Filletti adds that had it been a correction of the charge sheet, it would be understandable, but substitution is in fact the filing of a new charge sheet. “This course of action annuls the effects of the previous charge sheet, no matter what name you give it,” Filletti says.
“This document, which I am now looking at, on page 10 is not only talking about… The AG, through this document, is requesting the court to issue a €40 million freezing order against my client Deborah Chappell. So, it is not simply a piece of paper like any other,” says the lawyer, but a new set of charges being filed during the sitting.
“Practicality does not mean a course of action is just or legally correct,” Filletti says, pointing out that the only documents they have been notified with are an invalid charge sheet and the conclusions of the magisterial inquiry.
The magistrate points out to the parties that no request has yet been made.
Michael Sciriha says certainty about the charges is a basic aspect of the principle of equality of arms. In order, not to have a defective prosecution, procedure must be followed, he argues.
Debono says the defence is not going to make any requests, but is simply bringing it to the attention of the court. The magistrate replies that without a request, the court will not act as it would be acting extra petita. Kurt Sansone
Lawyer Franco Galea for Bradley Gatt dictates a note to the court: “As the prosecutor had just said, he is requesting a substitution of the act, which is therefore not simply a correction of the charge sheet… Once the prosecution, in its discretion, has chosen to request the substitution of the act in question, these charges must be formally filed in the registry of this court.”
He says this is a court of compilation and not criminal judicature, adding that this happens in every compilation of evidence. “The very existence of the court registry is the reason why every act in every case, more so an initial act, has to be registered.”
“If the prosecution chooses not to register the act in the manner dictated by the law, it is the prosecution’s choice, but it cannot expect there to be no consequences to this action,” he says.
Galea says that a basic principle of Maltese law is that it is a prohibitionist one - it doesn’t tell you what you can do, but tells you what you can’t. “So, unless something is expressly excluded by law, therefore you are presumed to have the faculty of doing so. The court is going to be asked to take decisions; it has its discretion but it also has its parameters.” Kurt Sansone
Prosecuting lawyer Francesco Refalo informs the court that the prosecution, in accordance with a note previously filed on 13 May, will be substituting the charge sheet where DF Corporate Advisory is listed as a defendant. It transpired that this company had no connection to the work associated with the hospitals concession. Kurt Sansone
Our senior court reporter Matthew Agius tells us that the sitting has already gone through 30 minutes of arguments about a single charge being withdrawn. “It is not clear how this could harm the interests of the defendants, but lawyers will be lawyers,” he tells us. Kurt Sansone
Lawyer Franco Debono says the defendants had not yet been notified with the amended charges. At this point the magistrate orders the police to collect the charge sheets and notify the defendants in court that very moment.
Superintendent Hubert Cini goes to collect the charges from the defence lawyers, but lawyer Franco Galea refuses, and a minor commotion erupts.
Once settled, Debono continues, loudly berating the prosecution for handing the defendants “new charges” right before the arraignment. The court tells him to lower his voice.
Lawyer Michael Sciriha says the issue is settled, but remarks that he had never seen a police officer try and snatch charges from the defence lawyers. “At the order of the court,” replies the magistrate.
Debono continues to object to the charges. “I had 13 pages and now I have 12. I would like to see for myself what has changed and what hasn’t. I cannot simply rely on the prosecution’s word.”
Lawyer Stefano Filletti says he remembers reading a news story with the headline: ‘Hospitals case cold’. “If the newspapers knew five years ago that the charges were going to be withdrawn, why wasn’t this done five years ago? I worry when I see the AG surprising the defence.” Kurt Sansone
Prosecutor Francesco Refalo informs the court that the prosecution is removing DF Corporate Advisory from the charge sheet.
Lawyer Franco Debono says: “If we are going to come here, exhibit 78 boxes and request a freezing order for certain people as if we can telepathically read the documents… I understand that the Attorney General went through the evidence very quickly but I am not that fast.”
Debono says the prosecution’s request to remove the company is the result of haste. “Haste causes mistakes.”
Magistrate Leonard Caruana tells Debono that the court has not yet even finished taking down who was present in court.
Debono insists that there is inequality of arms. “If they come here and dictate everything and we are here like spectators, exhibiting things without us even seeing them, I am going to object as forcefully as I can.”
Lawyer Stefano Filletti argues that the prosecution’s request means a new charge sheet is being issued today. “I must rely on his word… it is a matter of concern that the prosecution says it wouldn’t be exhibiting the inquiry again,” he says, adding he would be objecting to any new charges being filed. Kurt Sansone
Chris Fearne: Stephen Tonna Lowell
Edward Scicluna: Stephen Tonna Lowell
Ronald Mizzi: Stefano Filletti and Maurice Meli
Alfred Camilleri: Stefano Filletti, Maurice Meli and Franco Debono
Joseph Rapa: Stefano Filletti, Maurice Meli and Michael Scirha
Kenneth Deguara: Ezekiel Psaila, Franco Debono, Jonathan Thompson and Marion Camilleri
Kevin Deguara: Ezekiel Psaila, Franco Debono, Marion Camilleri and Jonathan Thompson
Deborah Chappell: Stefano Filletti, Roberto Montalto, Maurice Meli and Joseph Mizzi
Bradley Gatt: Franco Galea, Franco Debono and Michael Sciriha
Aaron Mifsud Bonnici: Giannella de Marco and Charles Mercieca
James Camenzuli: David Farrugia Sacco
Manuel Castagna: Ezekiel Psaila
Robert Borg: Arthur Azzopardi, Marion Camilleri and Franco Debono
Kurt Sansone
Elsewhere, former minister Evarist Bartolo warned that the Labour Party is growing ‘smaller’ as people desert it. “It is not yet in danger of losing the election because the PN is not able to attract to its fold those who are distancing themselves from the Labour Party,” he said in a lengthy Facebook post earlier this morning.
Bartolo warned that the Labour Party’s biggest enemies are those within – those who use it for personal ends. “Before a party loses an election, it would have started losing its wisdom and the moral authority to lead,” he cautioned. Bartolo called for strong and focussed leadership at a time when the PL is caught in the crosswinds and rough seas. Kurt Sansone