A judge has rejected a request made by brothers George and Alfred Degiorgio, who asked for the expunging of all evidence that had been heard by the court after the bill of indictment was issued against them.

In a decision handed down this morning, Madam Justice Edwina Grima, presiding the Criminal Court, observed that the Attorney General had made several requests for the hearing of new witnesses after the presentation of the indictment. The requests had been made as the evidence had not been exhibitable at the time of the men’s arraignment.

All of the requests had been upheld, leading the accused brothers to complain that the court had been “acting as a prosecutor” and had not remained independent and impartial, as it had admitted evidence after the closure of the compilation of evidence.

The judge noted that the law laid down criteria which must be satisfied in order for the Criminal Court to allow new witnesses to be heard by the Court of Magistrates after the completion of the compilation of evidence stage.

“From a reading of [the relevant legal dispositions] it is evident that the intention of the legislator had been to allow this procedure to “be used only in exceptional cases…” said the judge, going on to point out that “it is only in those circumstances where there could be an obstacle or prejudice to the revealing of the truth that this procedure can be invoked.”

Madam justice Grima pointed out that the law gave the Criminal Court the power to grant special permission to order, on its own initiative, the exhibition of new evidence that had not been previously declared by the parties in the case where the court believes this evidence is needed or useful. The Criminal Code also “absolutely and comprehensively” endowed the Criminal Court with wide discretion to do what it believed to be necessary to uncover the truth.

What the court had to protect was “essentially that the accused is given a fair hearing through the safeguarding of the principle of equality of arms.”

Part of that duty involved allowing the parties to know what evidence would be exhibited and allow sufficient time for the examination of this evidence, said the judge. “This can be done, if evidence could not be exhibited during the compilation of evidence, be gathered by the compiling court so that before the start of the jury every party would have all the evidence before it…”

On the specific case before her, the judge said that the Attorney General had been precluded from indicating Melvin Theuma as a prosecution witness at the time the indictment was issued, in the same manner as he had also been precluded from summoning him as a witness during the compilation of evidence. This was because at these two stages, Theuma was not a competent witness as he had to be treated as a co-accused at the time.

It was only after Theuma was granted a Presidential pardon that he acquired the legal competence to testify and this had happened sometime after the Attorney General had presented the bill of indictment, observed the court.

As a result of Theuma’s evidence, the compiling court had subsequently heard several other witnesses which the prosecution could not have known about before the indictment was issued. “There is no doubt that there was no obstacle to the admissibility of these people as witnesses,” observed the judge, quoting jurisprudence on the matter.

Not only was the witness evidence admissible, but it was also relevant to the facts in issue, Grima added.

But the accused had complained that this power of the court to order the production of necessary evidence ex officio violated their right to a fair hearing before an independent and impartial court and had requested a constitutional reference on the issue.

“The right to be judged by an impartial judge is vital in every justice system. In fact, that courts act independently and impartially it is one of the pillars of democracy…” said the judge, before highlighting that the request for hearing new witnesses had been made by the Attorney General and not because the court had decided so of its own accord.

The judge said that the accused were wrong when they complained that the court, by so ordering, had undermined its independence and impartiality and this because every piece of new evidence exhibited had been exhibited at the request of the parties and not on the court’s initiative.

In addition to this, said the court, the accused would have every opportunity to attack this evidence in court, as it had been gathered under the umbrella of the compilation of evidence, to allow the accused sufficient time to prepare their defence. The court had also ordered the prosecution to exhibit the terms of Melvin Theuma’s pardon, it said, and the defendants had copies of all of Theuma’s exhibited recordings and the relevant transcripts, as well as granted the defence additional time to cross-examine Theuma properly.

All this meant that the principle of equality of arms was followed, said the judge, ruling that “it therefore cannot be said that the Court, when authorising the hearing of new witnesses was twisting the concept of independence and impartiality…”

The judge rejected all of the arguments raised by the accused and ordered that the list of witnesses attached to the bill of indictment be amended and all exhibited recordings and their transcripts also be added to the indictment.