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Magistrate shuts down recusal request in case against Chris Fearne, Edward Scicluna and others
15 defendants were originally summoned to be charged in court on 29 May, but at 8pm, some 11 hours into the arraignment, the proceedings were declared null
17 June 2024, 9:09am
Matthew Agius
Matthew Agius
3 min read
Former deputy prime minister Chris Fearne, Central Bank Governor and former finance minister Edward Scicluna and 13 others were validly arraigned this morning, on the prosecution’s second attempt.
The 15 defendants are charged with fraud, with Fearne and Scicluna being additionally accused of misappropriation and making fraudulent gain by abusing their position. Money laundering is amongst the charges facing other defendants.
Charged alongside Fearne and Scicluna are 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.
Over the weekend, Magistrate Leonard Caruana had upheld the prosecution’s request to authorise a correction to the charges, namely removing a company registration number that had been listed in error.
In that decree, the court also said that because of this, it had been incorrect of the court to demand evidence of the summons on May 29, because at that point in time, the defendants had already declared themselves to have been served with the updated charges that the prosecution had presented during that same sitting.
The defence lawyers, who had been expecting their clients to be charged today - with the full 30 day period to contest prima facie ahead of them - suddenly found themselves with 19 less days to complete that task.
The lawyers were clearly less than pleased to find themselves in this situation, first warning that they would be seeking a constitutional reference, which would suspend the proceedings until its resolution by the superior courts, and soon after that, also requesting the recusal of the magistrate.
Magistrate Caruana gave short shrift to the latter request, decreeing that the Criminal Code stipulated the conditions under which a magistrate could be asked to recuse himself.
Jurisprudence had established that a request for a recusal “is not simply a matter of convenience,” said the magistrate.
“The grounds for recusal must be concrete, and not simply because one of the parties feels that the court would not be impartial. There must be an objective reason to question the impartiality of the presiding magistrate.”
The court also put paid to the defence’s allegation of bias, decreeing that “just because a lawyer feels frustrated by the court’s refusal to allow him to repeat submissions, this does not mean that the court is showing bias against him.”
It was possible to extend the 30 day prima facie period by another month, said the magistrate, also pointing out that he had also rebuked the prosecution when it had stepped out of line.
Time will tell whether the defence will follow through with its threat to file constitutional proceedings.
The court then proceeded to hear three witnesses today: Tax Commissioner Joe Caruana, the Registrar of Criminal Courts and Tribunals, Franklin Calleja and Police Superintendent Rennie Stivala.
The sitting was adjourned at 3:30pm and will continue June 21.
Matthew Agius was Senior Reporter on Law and Court Affairs at MaltaToday from 2014 to 2024...
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Magistrate Caruana upholds the defence’s request. He suggests Friday 21 June for the next sitting.
Tonna Lowell points out that on Wednesday and Thursday, the lawyers would be appearing in the parallel proceedings against the other batch of defendants and would be exhausted.The defence asks that the Friday sitting be from 10:00am till 1:30pm.
In view of a request from the defence to control the document filed together with the application on 6 June, the court ordered the prosecution to bring as a witness in the next sitting, a person who can testify about that document on oath.
The case is adjourned to 21 June at 10am.
Stivala steps off the stand. The magistrate asks the prosecution how many witnesses they have for today.
One, replies Refalo, but adds that submissions on the freezing order were still to be made. Debono protests that this cannot be done before the evidence is disclosed to the defence.
The magistrate says today’s sitting will end here.
In view of this, Refalo asks the court for an order to impose conditions and guarantees on the defendants, to ensure they attend sittings and prohibit them from making public statements about the proceedings.
Tonna Lowell points out that the defendants had all attended every sitting so far and requests the court grant the defence some time to reply. Debono seconds the request. “This type of request is normally made when the defendant is proving difficult to notify or appear in court.”
De Marco asked whether any of the people he had notified to testify were also suspects. This was not the case, replies the superintendent.
She suggests that Aaron Mifsud Bonnici had not featured in this. He had not been sent for, replied the witness.
Psaila asks about Manuel Castagna. The witness had been present for his deposition, he says. During the testimony, only the magistrate, the registrar, the court messenger and himself would be present, he specifies in reply to a follow-up question.
Stivala had been involved in the police side of the inquiry up till April 2021, after which he handed over to Inspector James Grech, who subsequently handed over to Inspector Anthony Scerri.
“If there is information which is important for the police it would be kept on file. For example, if the CMRU sees a media report relevant to the inquiry, and needs information, it would send a request to me and I would refer to the relevant section of the file.”
Answering a question from De Marco, the witness says he doesn’t recall court experts being present during inquiry sittings. Experts had assisted the police during certain searches but not during the sittings, he said.
Cross-examined by Debono, Stivala said he would be present during the witnesses’ depositions to the inquiring magistrate. Debono confronts him with his statement that his role was simply to notify the witnesses.
“During the questioning of the witness, my presence was not necessary, but I would remain in the courtroom.” He estimated that he had been present for around 15 sittings. No other police officers would be present, due to the departure of Inspector Chetcuti.
“If the magistrate requests the presence of 15 witnesses, common decency dictates that if I had notified them myself, I would be present.”
“Your role as police officers was to question the people requested by the magistrate.” Stivala confirmed. “I ask the magistrate to say what she needed and I would comply.”
He confirms that Chappell and Camilleri had not been questioned while he was involved. Rapa had, however. Filletti asks whether disclosure had been granted to him.
“To a witness? I had summonsed him as a witness, not a suspect. I don’t believe that I had given him any documents.”
He said he vaguely remembered that a number of individuals had turned up with their lawyers and that the magistrate had told them that they did not need to be assisted.
Stivala said the police would not be the ones to seize devices - that would be carried out by the court-appointed experts. They would be exhibited to the magisterial inquiry, either on the day they were seized or the next day at the earliest opportunity.
Refalo asks what visibility the police had of the seized items after this. “We were the long arm of the inquiring magistrate,” he explains, adding that it was not the same as an investigation he was carrying out.
Franco Galea asks him whether the names Bradley Gatt, James Camenzuli and Joseph Rapa had featured in the inquiry when he was involved. He recalled Camenzuli and Rapa as possibly having been asked to testify, but was unsure about Gatt. He did not exclude the possibility that after hearing a batch of witnesses, the magistrate had then requested further witnesses.
Stivala says searches were carried out on addresses related to Technoline and its officers. Documents and a number of devices had been seized as evidence, he said. Later cloud hosting service providers used by the defendants were also subpoenaed.
Before he was transferred to the Asset Recovery Bureau, Stivala said he had carried out the final searches at the Sladden residence and Nexia BT’s offices and warehouses. A number of boxes of evidence were seized.
That was his last involvement in the inquiry, Stivala says.
Superintendent Rennie Stivala, now stationed at the Asset Recovery Bureau is called to the stand to testify about his involvement in the inquiry.
Stivala had been involved in the early stages of the inquiry. Inspector Antonovic Muscat and Inspector Christabel Chetucti had been detailed to assist, but Chetcuti was assigned to a different unit soon after.
“My job was that if the magistrate asks to hear witnesses, I order the necessary arrangements be made.”
Debono stands up and points out that after Caruana’s testimony, he felt that the police inspector should be called to the stand to testify first, because he was present in the courtroom.
Refalo points out that in this case they were also prosecutors, but Debono insists that usually an inspector testifies first and then calls his witness to the stand.
"We were told that they haven't investigated, so why be reticient?" Debono concludes.
Tonna Lowell suggests that the witness had transmitted the acts to the Attorney General, and not to the police. Calleja confirms this.
“Where do your powers emerge from, the magistrate or the law?”
“I don’t know off-hand, but the magistrate’s instructions are supposed to be consonant with the law.”
Calleja is unable to say offhand whether the acts were still in court on 25 May and would have to confirm.
Replying to Debono, the registrar confirms that the inquiry is stored in a special room in the court building, together with the devices seized.
Filletti points out that the law states that “the magistrate shall order that a copy of the same procès-verbal shall be transmitted by the registrar to the Commissioner of Police,” yet in this case, the original had been sent. “In every case, the original is passed on to the AG,” he says. “This happens with every inquiry.”
Franco Galea asks who had provided him with the copy of the proces verbal. “Was it the Attorney General?”
Calleja replies in the negative.
There were some 1.5 million pages that had to be scanned, he says. Asked whether the Attorney General already had a copy of the proces verbal, Calleja replies that the public prosecutor has had a copy since April.
The first time he had contact with it was in April when he passed it on to the AG. He had received it from the inquiring magistrate. “On the same day, 25 April, we sent it to the AG.”
Filletti asks whether he had any control or oversight of the evidence while it was in the AG’s possession. After the acts were deposited at the AG’s office, they were signed for and his responsibility for them ceased.
The Registrar of Criminal Courts and Tribunals, Franklin Calleja, testifies next. He says the court administration is currently scanning the 78 volumes of the related inquiry into Joseph Muscat and others. The inquiry is voluminous, he says.
Franco Debono remarks: “What I’m interested in is that today you do not have a copy of the inquiry to provide us with.”
Calleja confirms that this is the case, but says it should be ready by later today.
After leaving the court briefly to check, he returns and informs the court that the permission had been requested on the same day it was granted. Replying to questions from the defence bench, Caruana says that no administrative investigation had been carried out.
Lawyer Franco Debono begins his cross-examination by asking the witness to confirm that he had not carried out any investigations into Deguara or Chappell. The witness repeats his previous answer about investigations being the police’s remit.
He is asked about the date this permission had been requested. The witness doesn’t have this information to hand. The court suspends the witness’ testimony so that he can carry out the necessary verifications.
The first witness is Tax Commissioner Joe Caruana. He had been asked to grant permission to the police to proceed with charging Kenneth Deguara and Deborah Chappell and complied. He says that the law states that no proceedings shall be taken except with the sanction of the Commissioner, and may also be withdrawn at the Commissioner’s discretion.
Lawyer Roberto Montalto confronts the witness with a recommendation he signed for criminal charges be pressed against Deborah Chappell. “The police investigate and prosecute criminal charges, but require the consent of the VAT department.”
Montalto suggested that the police had not investigated at all, and asks the witness to confirm that the police had told him nothing about Chappell except to issue charges against her.
“They asked me to issue charges on the basis of their investigation. It is the responsibility of the police to investigate tax-related crimes.”
The lawyer asks whether he saw that Deborah Chappell did anything wrong, and asks what documents Chappell is supposed to have forged. Caruana replies that it is the police’s role to investigate.
The subject of a magistrate’s recusal is governed by the Criminal Code. Jurisprudence had established that recusal is not a matter of convenience. A ground for recusal must be concrete, not simply because one of the parties feels that the court would not be impartial. There must be an objective reason to question the impartiality of the presiding magistrate.
One of the defence’s complaints is that it had suffered irremediable prejudice by the court’s decrees on the matter of notification, and had resulted in 19 days being taken away. The court is perplexed by this argument because the law itself provides a remedy to this situation.
On the bias claim, the court pointed out that it had directed the defence lawyers not to repeat each other’s submissions, but allowed every one of them the right to raise new points. Just because a lawyer feels frustrated by the court’s refusal to allow him to repeat submissions, does not mean that the court is showing bias against him, said the magistrate.
The magistrate highlights the fact that Article 401(1), cited by the defence, provides for the extension of the one month period and underlines that he had also rebuked the prosecution when it deemed it was necessary to do so.
Therefore, the request for Magistrate Leonard Caruana's withdrawal was dismissed.
The lawyers return to their places in the courtroom, and the magistrate enters the courtroom.
He begins reading his decree about the request for his recusal.
Peter Fenech, the President of the Chamber of Advocates, has just come into the courtroom and called all the lawyers to go outside.
And outside they troop.
Lawyers on both sides, as well as the defendants, have taken their places in the courtroom, as we await Magistrate Leonard Caruana's return.
In effect, this means that the defence’s filibustering tactics have backfired on them, for now at least, leaving them with a shorter time window to contest prima facie. Asking for the magistrate’s recusal on what are shaky grounds, is unlikely to succeed. But we can expect the defence to then file constitutional proceedings, once that request is denied.
It appears that the defence intends on following the time-honoured playbook of prolonging the case with constitutional references amongst other tactics, in a bid to buy time for mistakes to happen, wear down the prosecution and the court, as well as to allow time for public and press interest to wander elsewhere.
Over the weekend, the court had upheld a request made by the prosecution and had authorised a correction be made to the charges, namely removing a company registration number that had been put there by an oversight.
In that decree, the court also said that as a corollary to this, it had been incorrect of it to demand evidence of the summons on May 29, because at that point in time, the defendants had already declared themselves to have been served with the updated charges that the prosecution had presented during that sitting.
When the defence objected to this, prosecutor Rebekah Spiteri rebutted by saying that the prosecution was standing by what the court had decreed on June 14. That decree stated that the defendants had declared themselves as notified with the charges and that during that sitting, every defendant had also been notified with the date of today’s sitting. This meant that DF Advocates had also been validly notified at law.
The magistrate is suspending the sitting until 1:30pm. We will be back with our live reporting then.
The magistrate starts to say that the sitting was being suspended, but Franco Debono interrupts him to make a “small submission.”
After pledging his respect to the court and the lawyers on the other side, he says “this court will have to hear the lawyers for 16 defendants and cannot adopt the same attitude as if it has just one”.
He repeats the argument about the defendants having been under one impression, only to be surprised by the court’s decision to uphold the Attorney General’s application. There were consequences to that decision, Debono says.
“Everyone had understood the consequences. At one point the court gave a decision, which I repeat we bow our heads to, that the compilation of evidence had started. With all due respect, this situation is not only illegal but creates an irremediable prejudice.”
The decision was “intrinsically unjust,” argued the lawyer.
Refalo dictated a note that the request for recusal did not fall within the parameters laid down in the law and should not be upheld. “Nothing has been brought to sustain the argument brought by the defence, to show that the Attorney General has received favourable treatment.” He says that the court had, in fact, rebuked the Attorney General when it deserved to be rebuked.
The Attorney General’s choice to arraign the defendants in this manner has no relevance to the request for abstention. “Finally, if decrees are given that don’t please some party or other, this does not necessitate the recusal of a court which is trying to keep order and ensure the correct administration of justice.
Refalo suggests that the court had been misled during the previous sitting, but Psaila interrupts, objecting to being accused of misleading the court and waving a copy of a judgement he had cited.
“Any time wasted, has not been wasted by the prosecution,” Refalo argues, telling the court that the prosecution too had to do its best by its client.
Debono objects to having his submissions being cut short several times today. “We have rights too. When we stand up to speak, we have a right to be heard. It was the prosecution who chose to arraign 16 people at once…”
He warns that the defence would have to seek constitutional redress.
“All the points we raised are pertinent. We do it because we love what we do. The court gave a decree, and everyone, if not the entire country, was under the impression that the proceedings had not started. Now 19 days later, we find out that the court decided that they had,” Debono says.
Pledging undying respect and obedience to the court, the lawyer says the situation is all the result of bad choices by the prosecution. The prosecution had notified the defendants “in the most confused manner I have ever seen in my life.”
People had been charged “by mistake”, he says, and then the Attorney General had corrected its position in the space of a week.
It had been the court itself which raised the issue of notification, argued the lawyer. Psaila had immediately drawn the attention of the court to the problems with his client’s notification., Debono argues.
Debono adds that in charging 16 people at once, the prosecution should know that every defendant has the right to make their own submissions.
“We are doing our jobs. We shouldn’t come here saying that we’re veteran criminal lawyers facing only two prosecutors. The Office of the Attorney General has 60 lawyers working there.”
Debono, who spent hours last sitting making submissions on behalf of everyone, now tells the court that every lawyer had the right to make their submissions. He appears to be accusing the court of trying to rush things, and adopting an “almost antagonistic” attitude towards the defence.
It had been the prosecution’s decision to arraign the 16 people involved in this case together, argues Psaila. This had brought about a situation whereby every defendant is represented by his or her lawyer, who will make submissions for that defendant.
Tonna Lowell adds that in May 2024, this court had made a decision. In an application filed by the Attorney General days later, it was argued that the court had been mistaken and the court subsequently upheld the Attorney General’s argument.
“This is prejudicing the defence in the sense that 19 days had passed since the arraignment, while the defence was under the impression that the compilation of evidence would begin later this month,” argued the lawyer, saying that the defence was now in an “impossible position”.
Before the first witness can be called in, Ezekiel Psaila informs the court that the defence was requesting the magistrate’s recusal.
Between the handling of this case and the changing of a decree by this court on how the prosecution is to deal with DF advocates, the defence submits that there had been no material change meriting the decree being upheld by the Attorney General.
Subsequently, the defence also requested the court pronounce itself on the relevance or otherwise of the article 121D (Corporate liability) and the court abstained.
“The defence feels that this court is approaching its submissions differently to those of the Attorney General. Besides this, the defence feels it is being prejudiced by the manner in which the proceedings are being conducted because everything being submitted about its clients can apparently only be done by one lawyer.”
Magistrate Leonard Caruana, after writing down notes for several minutes, begins his decree.
The court said it had heard the defence’s request that its decree be revoked contrario imperio (on it’s own power) and seen the judgement it had filed in support of its arguments.
“The defence is insisting that the timeframe for the compilation of evidence should begin running from today’s date, because the last plea was entered today. This changes nothing from the fact that the compilation of evidence begins with the reading and confirmation of the charges on oath, which happened during the sitting of the 29 May 2024. For these reasons, it denies the request and confirms the decree it handed down earlier today.”
The defence, after delaying the compilation by weeks, is now complaining that it doesn't have enough time to prepare a contestation for prima facie.
Mercieca immediately stands up and asks the court to revoke the decree that it had just read out. He too asks the court for patience. “Patience? I have already decreed!”
The magistrate orders him to make his submission by dictating a note in the acts of the proceedings, which he proceeds to do.
Lawyer Roberto Montalto makes an analogy with trials by jury. Does it begin with the reading of the bill of indictment or when the plea is entered? “It is an identical situation in a different setting,” he said.
Ezekiel Psaila says that he had acted under the impression that the timeframe would start today. “My client’s defence is going to suffer because of a mistake by the Attorney General.”
Refalo, for the prosecution, informs the court that it was maintaining its original position - that the countdown for prima facie had started on 29 May.
The magistrate was about to start reading out his decree when he was interrupted by Charles Mercieca, who continues to talk over him. He says he has the official transcript about the charges being read out.
The court registrar had furnished him with an official copy of the decree relating to the tandem proceedings. From the 30 May decree, it is clear that in those proceedings, the charges were not read out and neither had the defendants entered a plea.
However, the magistrate says the charges had been read out and confirmed on oath on 29 May. Therefore, it is that date which must be taken as the starting point of the 30-day period stipulated in the criminal code.
While we wait, it’s good to recap what has been happening behind the scenes.
On Friday the magistrate decreed and upheld the Attorney General’s application requesting a reconsideration of the nullity declaration, arguing that DF had always been notified.
In his decree, the magistrate had stated that a mistake had been made because of what was said in court.
On Saturday, lawyers representing DF filed an application, asking to have Friday’s decree overturned once again. That was the application which was refused at the beginning of today’s sitting and why everything has continued from where it left off.
The magistrate has adjourned the sitting for around 15 to 20 minutes. We will continue reporting when the hearing is back in session.
Franco Debono asks the court to bear in mind that all this trouble was because of the choices of the prosecution and its excess haste in issuing charges. He repeats the question about when the prima facie period began.
The magistrate responds: “You have been a lawyer for 20-30 years. Some of the best legal minds in Malta are here and they can’t figure out when the proceedings began?”
Adopting a more gentle tone, Giannella De Marco asks for clarification whether the time frame begins today or at the last sitting. “So we do not commit mistakes like the other side.”
Tonna Lowell explains that if it began on the 29, it would mean that the lawyers had to read thousands of pages in a much shorter timeframe.
Filetti insists that the defence of his clients is going to be fatally compromised.
“Today, 19 days have passed since the first appearance, after a postponement because of the prosecution and therefore only 11 or 12 days remain for the close of prima facie. At the time of this note, the defence has not been provided with anything except the conclusions of the inquiring magistrate, when it is well known that both the Attorney General and the police had far more information in their hands than what they gave us.”
The defence said it wished to underline that it was still currently impossible to see the evidence for prima facie
Filletti continues saying that an application was filed late by the AG asking for the court to revoke its decree on DF Advocates.
"What's the point of your note?" the court asks.
"Ħu paċenzja..." Filletti says, roughly translating to “be patient”.
"Nieħu paċenzja? The court wants to know what's your point as this has been settled," the magistrate replies.
Lawyer Stefano Filletti asks whether the 30-day period for prima facie begins today or began at the last sitting.
He dictates a note stating that on 29 May, the court had decreed that a party to these proceedings had not been validly notified, with all the legal consequences this carried with it.
He said that the court had decreed the proceedings null.
“No no no no,” interrupts the magistrate. “If you’re going to attribute something to me, quote the decree correctly.” That was the defence’s interpretation, he says.
Refalo says the prosecution obeyed every decree handed down by this court, and every document that should have been provided to the defendant or his lawyer, has been done so.
But Galea rebuts: “I am asking a direct question. Besides this email is there any other evidence?”
Franco Galea dictates a note, asking that before the evidence is exhibited in these proceedings, the court should ensure that its decree on disclosure is adhered to.
Secondly, he asks that, in relation to his client, that the prosecution declare if it has other evidence, except an email dated 26 January 2015, which it should provide to his client.
Meanwhile Franco Debono returns to the courtroom and takes his seat once again.
Debono is shouting: “Our position is first we must know where the documents were obtained from. If we aren’t told, we are going to demand an investigation. I will make this clear.”
However, the magistrate says this complaint would be dealt with at a later stage.
This does not go down well with Debono, who is fidgeting with clear annoyance. He stands up and storms out of the courtroom.
Debono continues: this document was filed in an anomalous manner and we are asking to have the person who filed it testify. “It’s a very simple request.” Debono continues to complain from his position.
Spiteri dictates a note: Identity documents are never exhibited by representatives of the entities but are then confirmed by those representatives at a later stage, if required, during the prosecution evidence.
Debono, on behalf of the defence, requests that once a document has been exhibited by the prosecution, the person who exhibited should testify about it. Lawyer Franco Galea, on behalf of Bradley Gatt, submits that in spite of the court’s decree last Friday, authorising the prosecution to correct the charges without needing to notify the defendants once again, he was reserving his position.
“We aren’t discussing this, sit down,” replies the magistrate.
Galea goes on: “The Criminal Code does not allow him to contest this at this stage, but his lack of contestation should in no way be interpreted as acquiesence to the procedure being adopted in this case.”
The court makes reference to its previous decree and says it was holding firm.
Rebekah Spiteri, a lawyer from the Attorney General’s office, hands over copies of documents, including the birth certificates of the individuals and a letter from the tax commissioner, one by one.
Debono agitated: “Where did she get that document from? Since when do we exhibit documents without authorisation?”
Magistrate tells the defence to wait its turn, as the prosecution was currently addressing the court.
Francesco Refalo, also a lawyer from the Attorney General’s office, points out that the documents had already been exhibited.
The court read out its decree: It noted that it had been asked to revoke its decree about the notification on DF Advocates as it was not a separate legal entity. Magistrate Caruana observed that this complaint had already been raised and dealt with, and therefore saw no reason to revoke its previous decree.
The court directs the deputy registrar to proceed with the examination of Jean Carl Farrugia and Kenneth Deguara as representatives of DF advocates. Franco Debono says they will not be replying and would be remaining silent.
The magistrate was handing down a decree when defence lawyer Franco Debono interrupted him, demanding to know whether DF Advocates had been notified.
Dictating a note on behalf of DF Advocates, Debono, Jonathan Thompson and Ezekiel Psaila said they were only appearing to contest the existence, the notification and the charges against the firm. “This must in no way be interpreted as meaning that DF Advocates was notified with these proceedings.”
“The fact that I came here contesting, doesn’t mean the notification is valid. Otherwise I would end up in a legal void.”
Senior court reporter Matthew Agius is reporting live from the courtroom where prosecutors will try a second time to arraign former deputy prime minister Chris Fearne, Central Bank governor Edward Scicluna, and 13 others.