The Malta Independent 17 June 2024, Monday
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Hospitals’ court cases: Forced silence, conspicuous absences and an early blunder

Albert Galea Sunday, 2 June 2024, 08:00 Last update: about 15 days ago

The arraignment of Joseph Muscat together with his former associates Keith Schembri and Konrad Mizzi and a host of others was always going to be eventful.

And while hundreds gathered to give the former Labour government triumvirate of power a heroes’ welcome on Tuesday outside the law courts, there was no shortage of drama inside the courtrooms, as the hospitals cases began to be heard.

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From details about what police investigations there were – or, really and truly, weren’t, to the absence of Attorney General Victoria Buttigieg and Police Commissioner Angelo Gafa, to an early blunder by the prosecution, The Malta Independent on Sunday summarises some of the key takeaways from an unprecedented week.

To investigate or not to investigate

Probably the single most important thing to emerge from both sittings is the fact that the prosecution is basing its case solely on Magistrate Gabriella Vella’s inquiry into the hospitals deal.

In both sittings, it was confirmed that there were no police investigations running in parallel with the magisterial inquiry, and there were no police investigations after the inquiry was concluded.

This was confirmed under oath by one of the prosecuting police inspectors, Wayne Rodney Borg, as he testified that there was no police report to be submitted with the charge sheet because there were no police investigations.

“So you signed a charge sheet, but you didn’t investigate the case?” defence lawyer Franco Debono asked.  The inspector replied in the affirmative and said that he relied on the magisterial inquiry.

This would explain why police simply did not summon anybody in for questioning once the inquiry was concluded.  That in itself was already a decision which raised many questions based on just how unusual it was, and the accused have already jumped onto that bandwagon through several judicial protests and in court last week.

Sound of (imposed) silence

Since it emerged that the magisterial inquiry was concluded there has been no shortage of talk surrounding it; not least from the highest profile member of the accused, Joseph Muscat.

Muscat in fact held a press conference and appeared on television in friendly territory such as with Labour Party propagandist Manuel Cuschieri and on F Living to continue perpetuating his narrative against the inquiry.

It was clear that Muscat banked on using his profile and his still evident rabid popularity amongst some demographics to continue to try and discredit inquiry and court case against him.

That, however, was stopped in its tracks at the end of Tuesday’s sitting.

The prosecution requested that the court issue a ban on any of the accused from discussing the case in the public realm, stating that this was being done “after seeing certain comments about this case which do no good for the administration of justice in public, but which are only good enough for some Netflix television series.”

Pushed to indicate who exactly he was referring to, the prosecutor had no issue in mentioning Muscat.

Despite vehement arguments from the defence, Magistrate Rachel Montebello acceded to the request, leaving Muscat forced to emerge from court and cancel a press conference that he had planned for immediately after the sitting.

Conspicuous absences

While there was a whole cast of characters in the courtroom on Tuesday and Wednesday, there were two particularly conspicuous absences.

Despite this being one of the most high-profile cases in Malta’s history and the first time that a former Prime Minister is being charged, Attorney General Victoria Buttigieg was nowhere to be seen.

She didn’t even sign off on the charges herself, instead leaving it to the team of three lawyers in her office – Francesco Refalo, Rebekah Spiteri, and Shelby Aquilina – and Police Inspectors Wayne Rodney Borg and Hubert Cini.

Perhaps it shouldn’t come as a surprise: Malta’s justice sector is currently subject to the anomaly that its Attorney General has rarely stepped foot inside a criminal courtroom before, having specialised in civil, administrative and constitutional law and holding a master’s in financial services.

There is precedent however for the Attorney General taking personal lead on high-profile cases. 

Former Attorney Generals Anthony Borg Barthet and Silvio Camilleri, for instance, had led the prosecution of former Chief Justice Noel Arrigo and former judge Patrick Vella when they were charged, and later convicted, with receiving a bribe to reduce the sentence of a drug trafficker.

Then Police Commissioner John Rizzo had also played a pivotal role in the case and the subsequent arraignments – contrasting with the second conspicuous absence from the court room, that of current Police Commissioner Angelo Gafa.

Buttigieg’s absence – together with that of Gafa – has been noted by civil society, with Repubblika, who had prompted the magisterial inquiry in the first place, accusing them of “occult manoeuvres” and saying that they will hold them personally responsible if the judicial process is messed up.

Defence delving into the details

The profile of the case coupled with the sheer amount of people who have been charged was always going to mean that the defence was going to be equally high profile.

What transpired throughout both sittings was an all-star line-up of the best criminal defence minds in the country, and we got a glimpse of how they will be doing everything possible to poke holes in the prosecution’s case.

Franco Debono, Stefano Filletti, Stephen Tonna Lowell, Gianella De Marco, Michael Sciriha, Vincent Galea, Edward Gatt and a supporting cast of other lawyers took turns to barrage the courts with legal points as they sought to gain the upper hand.

It’s clear that a key part of the strategy will be to focus on every technical aspect of this case, with microscopic focus on ensuring that every legal provision – however small – was suitably adhered to. 

Decrees from the magistrates turning down defence requests were plentiful, and Wednesday’s sitting even saw two constitutional references – which would have effectively stopped the case pending a decision on the matter at hand from the Constitutional Court – filed and subsequently refused.

The defence is of course doing its job: it’s up to the prosecution after all to ensure that it does absolutely everything in line with the law and without breaching anybody’s rights.  If it didn’t, then chances are that it will be caught out and the consequences will be laid bare for all to see, as happened late on Wednesday night.

But either way, this will no doubt contribute to this being a case which will take years before approaching anything resembling a conclusion.

The first blunder

Wednesday’s sitting was perhaps unprecedented in terms of its length.  Starting at 11am, it was still going at 10pm.  Such was the absurdity of the matter that the Chamber of Advocates even instructed lawyers to not work beyond 10pm.

Magistrate Leonard Caruana managed to negotiate an extra half-hour – but it turned out he needed a lot less than that to effectively quash what had been done throughout the sitting and to blast the prosecution for what one can say is a pretty significant blunder in the case.

While much of the sitting – which was the one where Chris Fearne and Edward Scicluna faced charges– was characterised by hours upon hours of legal wrangling, it all came to a head when it became apparent that there was some debate over a company which had been charged.

The original charge sheet had already been substituted by a new one at the start of the sitting to remove a different company which didn’t exist at the time that the criminal charges are alleged to have happened.

As the sitting dragged into the night however more debate came up, this time over a company called DF Advocates.  Defence lawyers argued that DF Advocates didn’t even exist as a company because it was simply a trade name, and therefore couldn’t be charged.

The sitting was suspended three times as legalisms and legal provisions were flung from side to side, with the prosecution ultimately rejecting an invitation from the defence to simply admit that a mistake had been made and to drop the charges against DF Advocates, in which case they promised not to take the matter any further.

As the prosecution continued to insist that it would be persisting in charging DF Advocates, defence lawyer Franco Debono asked who exactly had been notified to appear on the company’s behalf.  The prosecution argued that the entity had been notified because its representatives – Kevin Deguara, Kenneth Deguara, and Jean Carl Farrugia – had been notified.

Decreeing on the matter however, Magistrate Leonard Caruana disagreed saying that it was clear from the notifications issued to the trio in question they had been summoned in their personal capacity only, with no reference to them representing DF Advocates.

This means that one of those accused in this case – DF Advocates – was not notified for these proceedings.

“Therefore, the case is being deferred with all the legal consequences of this case,” the magistrate said.

“This is a most serious shortcoming on the part of the prosecution,” he said.  “Had this been pointed out at 11am then everybody could have been home with their families by now,” he said, with the clock showing 10.15pm by then.

It is a significant blunder which will no doubt add scrutiny the prosecution as a whole: activists have already started to blame the Attorney General Victoria Buttigieg and Police Commissioner Angelo Gafa for the scenes witnessed on Wednesday.

In what is probably the highest profile set of court cases that this country has ever seen, it’s also an early blunder that the prosecution could have well done without.

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