A Magistrate today threw out a challenge filed by Dr Lynn Zahra against the Police Commissioner, demanding he investigate an inspector for allegedly recording a conversation he had with the lawyer and handing it to journalist Daphne Caruana Galizia after ruling that there was no prima facie evidence to support her claims.

Dr Zahra, the partner of former tourism minister Joe Grima, had challenged the Police Inspector to investigate inspector Jason Francis Sultana, claiming that he had recorded their conversation at the Sliema police station. Dr Zahra claimed that the inspector then passed on the recording to the columnist, something which Daphne Caruana Galizia has always denied. The lawyer had gone to speak to the inspector to file a harassment complaint against Caruana Galizia. The Inspector has also initiated defamation proceedings against Dr Zahra to court, claiming that she insulted him in public as he replied to an attempted burglary call at the lawyer’s residence in Sliema.

In a 22-page sentence, Magistrate Aaron Bugeja said the court had been tasked with determining whether there was enough prima facie evidence to support Dr Zahra’s claims and for the inspector to be indicted.  The court noted that an internal investigation had been carried out and the police had spoken to Inspector Sultana, Superintendent Raymond D’Anastasi, who had also been present for part of the lawyer’s interrogation, Dr Zahra and Mrs Caruana Galizia.

Both police officers had categorically denied recording the conversation. Daphne Caruana Galizia had sworn under oath that the recording was not given to her by Inspector Sultana. She denied having ever spoken to him in her life before this incident.

The court said Dr Zahra admitted that she had not seen the inspector use his mobile phone to record the conversation but had assumed that this was the case since parts of the conversation, during which only she and the two officers were present, had ended up being published online.

She claimed that the inspector placed the phone right in between them, on the desk, after answering a call. Before answering, the phone had been in his trouser pocket. When she saw Mrs Caruana Galizia’s blog she came to the conclusion that the inspector had done so because he was recording her.

But the court said it could not supplement evidence with conjecture and assumptions. Dr Zahra’s claims, it said, were based on circumstantial rather than direct evidence. There was, in fact, no proof that the recording actually existed as no copy of it was ever presented in court.  Even if assuming that Mr Sultana had recorded the conversation, that was no proof that he was the one who handed it over to Mrs Caruana Galizia.

The court also noted that Mr Sultana’s phone had not been placed on the desk at the start of the meeting but only after he had answered a call. Dr Zahra said she could not remember if she saw him fidgeting on the phone before placing it on the desk, as if activating its recorder. Here, the court noted that she had previously stated the contrary.

The Magistrate also said it did not make sense for the inspector to place his phone right in front of Dr Zahra if he was in fact secretly recording her. It would have been a rather odd for him to record her in that manner and then give the clip to Mrs Caruana Galizia. In doing so, he would have signed his own conviction.

For these reasons, Magistrate Bugeja ruled that there was no prima facie evidence to corroborate Dr Zahra’s allegations and threw out her request.

Dr Lynn Zahra’s statement

In a statement sent to this paper, Dr Zahra insisted that Magistrate Bugeja had brought several “poorly thought out” arguments when delivering his sentence.

“The real news from Magistrate Aaron Bugeja's decree is that it says that the prima facie evidence which the Police must have in hand before arraigning someone must be "unequivocal".  This notwithstanding that prima facie evidence means evidence ‘at first glance.’

Several poorly thought out arguments, in my view, were elicited by the Magistrate to negate my claims against Inspector Jason Sultana, whilst all cogent points were set aside.  For example the Magistrate states:  If Inspector Jason Sultana really recorded our conversation on his mobile surely he wouldn't   have placed it in in the middle of his desk where I could see it? Well, what can I say?
Maybe the Magistrate thinks that this was the first time that a mobile phone was placed in full view of a victim who was being secretly recorded?”

Dr Zahra said that for Magistrate Bugeja, the fact that Mr Sultana was sitting opposite to her while Superintendent D’Anastasi stood at a distance was not proof that he was recording her.

“According to the Magistrate, someone could have been eavesdropping outside the room and recorded   our conversation. With respect, this cannot hold water since in that case, the recording would have been made from a distance would therefore be unintelligible. According to Mrs Caruana
Galizia, the recording was quite clear.

The deduction that I make from this decree which refers to an incident in which I was definitely recorded at a Police Station, and my conversation with a Police Inspector published, is that walls in
Police Stations have ears and therefore, confidentiality and  privacy, obviously cannot always be guaranteed,” Dr Zahra said.