Lawyer Gianella De Marco on Wednesday decried the system used by the courts for magistrates and judges to appoint technical experts as a “racket”, as the system came under scrutiny in court as the case against former Health Minister Chris Fearne and Central Bank Governor Edward Scicluna over the hospitals deal continued.

Tuesday's sitting was the final one before parties in the case will make submissions on whether there is enough prima facie evidence – evidence at first glance – for the charges against the accused to stick.  The court heard close to 40 witnesses produced by the defence across the last four sittings, and the majority of – if not all – the defendants are expected to contest the prima facie.

Fearne and Scicluna are among a slew of individuals charged in relation to the hospitals deal, together former permanent secretaries Alfred Camilleri and Joseph Rapa, current permanent secretary Ronald Mizzi, tender 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.

The procedure used to appoint court experts – with particular focus on the appointments made by magistrate Gabriella Vella as part of her inquiry into the hospitals deal – came under the spotlight on Tuesday.

It has already emerged from previous testimonies that members of the judiciary have access to a list of experts in various subjects – however this list is not exhaustive: a judge or magistrate may choose to appoint somebody who is not on this list should they so wish.

Katia Caruana, the director of the Department of Justice, explained while testifying on Wednesday that inclusion on the court’s list is subject to the person or company applying through an open call which is issued in the newspapers and submitting a due diligence form, police conduct and any applicable qualifications. 

They are then assessed by MRC Audit Ltd, but their warrant is taken as evidence of the expert’s knowledge in the given subject, and the discretion on their appointment is ultimately up to the magistrate or judge appointing them.

“There are no parameters for excluding a person holding the relevant qualification from the list and confirmed by the service provider,” she said.

“There is the basis for a strong reform, but maybe not in this sitting,” lawyer Franco Debono observed.

Payments are issued by the Court Services Agency, Caruana said, while she was then grilled on whether the department had carried out any further checks when it saw an €11 million bill for experts who were not on the court’s list.

She replied however that the department could not carry out such cheques. Two particular experts: Harbinson Forensics and Miroslava Milenovic were in the spotlight.

Lawyer Gianella De Marco, who is representing Aron Mifsud Bonnici, asked what happens in cases where, like in the case of Milenovic and Harbinson, the experts do not feature on the court’s list, Caruana replied that there was no procedure covering them.

De Marco suggested that these experts were therefore free to set their own rate – a suggestion that the witness had no reply to. “Incredible!  What a racket,” the lawyer exclaimed before she sat down in her seat.

A representative from the Court Services Agency meanwhile was tasked with bringing information about the payments to foreign experts as part of magistrate Vella’s inquiry.  “These experts were the fulcrum as to why all these people were charged,” Debono said, justifying the request.

Hollywood actor Alec Baldwin, who was this week cleared of involuntary homicide after fatally shooting a camera operator on a film set, meanwhile got a surprise mention earlier in the sitting, as Franco Debono cross-examined the police inspector who led searches at the offices of DF Consultancy Services Ltd.

George Frendo, a Financial Crimes police inspector until October 2022, led searches at the offices, and he testified how he was asked to seize anything which featured certain keywords as he executed a search warrant.

In a testimony which at times got tense, Debono argued that the police had breached the law governing lawyer-client privilege when it seized documents from DF Advocates, when their search warrant specifically mentioned DF Consultancy Services Ltd.

Frendo however said that he had simply been following orders – which were to seize anything which featured the keywords that had been provided. 

Frendo quoted from the search warrant, reading that he was authorised to carry out a search at the address of DF Consultancy Services and elevate documentation as necessary.  There is no distinction, he argued, in who the documents he had to elevate had to belong to.

An argument broke out when Debono asked the witness whether he considered DF Consultancy Services – or Kenneth Deguara and Jean Carl Farrugia, who also had documents or devices elevated during the searches – as suspects, to which Frendo replied that he didn’t.

Such was the tension that Magistrate Leonard Caruana stepped in himself, as Debono accused the witness of “contradicting” the search warrant.

The Magistrate asked the witness to read out the search warrant again, and pointed out that the articles of law specified that the warrant includes offences related to bribery and trading in influence – however Frendo replied that when he carried out the search “they weren’t suspects at that point.”

“They held information which could be useful to an investigation,” Frendo insisted.

After Frendo stepped off the witness stand, Debono said that he would be requesting that everything elevated during this search be expunged from the case.

“Kevin Deguara, Jean Carl Farrugia and DF Advocates request the expungement of all documents and devices and any material which was elevated from a search warrant dated 31 August 2021 as this was done in very clear breach of Article 355G and 355AUA [both of which govern privileged documents],” he said.

The prosecution objected to the request, and the Magistrate said he would decree on it from his chambers.

“I’ve been working here for 24 years and everyone recognises that a search warrant places you in the status of a suspect,” Debono said after making the request.

He also commented on the importance of disclosure that this implies: in Maltese law, once someone is declared a suspect, they have a right to receive a certain level of disclosure about the crime they are suspected of.

“In other countries, disclosure is given a lot of importance … when we speak about it in Malta, it’s like we’re talking about space,” Debono said, as he cited the Baldwin case, which he said had seen the actor cleared over a matter relating to disclosure.

George Gregory – the Managing Principal of accounting firm RSM Malta – testified as part of this sitting, which was the fourth where the defence was allowed to produce witnesses for the prima facie process.

Asked by lawyer Stefano Filletti asks about RSM’s involvement in the hospitals concession, Gregory said that in 2015 the company was engaged by Projects Malta to assist in the drafting of the Request for Proposals (RfP) for the concession.

Filletti asked for details about the RfP, why RSM was involved and what their work consisted of, to which Gregory replied that RSM was engaged to work on the financial side of the RfP – Ganado Advocates, he said, handled the legal side.

Gregory testified that RSM then helped the Steering Committee as consultants together with David Galea’s BEAT Ltd. 

Filletti got into the nitty gritty of the process, asking about the payments that Vitals would receive.  The initial set payment was of €51 million which was split across two-years as a transitory period, and a “per-bed fee” would then follow from there, Gregory replied.

Filletti asked whether the concessionaire was bound to spend money on anything particular, but Gregory replied that they weren’t – the money was simply paid to provide the hospitals service.

“Had you looked into Vitals’ Ultimate Beneficiary Owners?”, lawyer David Farrugia Sacco asked. “No,” the witness replied.  He said he can’t recall whether he remembers the name Oxley, but said that it did sound familiar.

Singapore-based Oxley Capital was the ultimate beneficial owner of Vitals Global Healthcare – a fact which became known in November 2016.

Gregory did not recall, when questioned, whether the steering committee had met with any potential investors, but he said that he did recall a very well-attended presentation about the Gozo General Hospital at the Office of the Prime Minister – a presentation which was given again at the offices of Ganado Advocates.

Gregory said he had testified to the National Audit Office as part of their investigations, but not in the magisterial inquiry. 

“Did someone from RSM testify?”, Debono asked; “Not to my knowledge,” the witness replied.

He further testified that the negotiation committee had not received any due diligence reports about Vitals after they were selected as the winning bidder, but he cannot remember whether the steering committee had received any such reports.

Lawyer Andrei Vella, who represented Gateway Solutions – a company which is charged in relation to the hospitals deal in a separate case – also testified briefly, as did Alison Delecia, a former PA for Ram Tumuluri.

Malta Enterprise’s chief finance officer Joseph Zammit was also summoned to the witness stand, but when he got there it transpired that nobody had any questions for him. “You came for nothing, sir, you can leave,” the magistrate, almost apologetically, told the would-be witness.

The parties in the case will make submissions with regards to the prime facie declaration on Wednesday morning.  It is expected that most – if not all – of the defendants will contest the prima facie.

For a minute-by-minute commentary of the court sitting, check out our live blog below.

13:24: That brings today’s sitting to a close – thank you for following.  We will have a summary of the sitting later this afternoon.

13:23: A consensus is reached: the Court Services Agency will bring information about the foreign experts who were engaged as part of the inquiry.

Sciriha says that he also wants to know the grounds on which the payments were justified – whether they were per-hour, per-page, at a fixed rate, or otherwise.  He also asks whether the accommodation of the experts was claimed as an expense, to which the witness replies that it was.  The lawyer would like the information of where they stayed while they were in Malta as well – but the Magistrate says that it’s not feasible for tomorrow.

Bugeja steps off the witness stand. She was the final witness of the day.

The next sitting is tomorrow morning, where submissions will be made on prime facie.

13:15: Magistrate Caruana returns to the courtroom.

Debono says that the defence believes that because the experts are the fulcrum of the case – because the inquiry was based off their conclusions – then the more information they can have the better. 

If any information can be supplied until tomorrow, Debono says that the defence would appreciate it. “These experts were the fulcrum as to why all these people were charged,” he says.  He continues that they were leaving the decision up to the court.

Prosecutor Refalo says he doesn’t wish to stop the defence from having all the information available, but he doesn’t see the relevance of the information for the prima facie declaration.

There is a discussion between the Magistrate and the witness on what evidence can be brought by tomorrow morning.  It appears that the agency doesn’t have the data on a per-inquiry basis stored digitally – something some of the defence lawyers are quite shocked by.

13:04: The last witness for today is Mary-Louise Bugeja, the financial controller of the Court Services Agency.

Debono asks about the payments to court experts and how the general process is before a payment is issued.

He is seeking a list of the experts and how much they were paid, but Bugeja says that the list isn’t readily available and she doesn’t think it can be brought by tomorrow morning – which is what Debono is requesting.

Magistrate Caruana asks Debono whether this information is vital to the prima facie process – if it’s vital, he says, then the court will cater for it, but if not then it can be brought at another sitting.

The magistrate suspends the sitting for a couple of minutes so the defence can discuss between them.  The regiment of defence lawyers are now huddled around each other – with Debono leading the debate.

12:57: Debono asks whether the witness had testified in the magisterial inquiry.  “No,” Gregory replies.  Debono is asking on behalf of Robert Borg.  Gregory says he had testified to the National Audit Office as part of their investigations, but not in the magisterial inquiry. 

“Did someone from RSM testify?”, Debono asks; “Not to my knowledge,” the witness replies.

Farrugia Sacco now asks whether the negotiating committee had received any due diligence, but Gregory says that no such reports had come to them.

He asks the same about the steering committee, but Gregory says he cannot remember.

His testimony ends there.

12:52: Lawyer Gianella De Marco, who is representing Aron Mifsud Bonnici, is now asking the questions.

She asks whether the steering committee had met with the potential investors, to which Gregory said he didn’t remember but he does recall a presentation about the Gozo General Hospital at the Office of the Prime Minister which was very well-attended.

She asks about the meeting when a presentation was made: Gregory mentions that a presentation had been given to the Office of the Prime Minister, and then again to RSM at the Ganado Advocates offices.

12:45: Lawyer David Farrugia Sacco now asks the questions.

Gregory testifies, in reply to the lawyer, that Vitals was subject to bank financing – 25% of the financing was to come from the shareholders and the remaining 75% was from the bank, as stipulated within the contract.

“Had you looked into Vitals’ Ultimate Beneficiary Owners?”, Farrugia Sacco asks. “No,” the witness replies.  He says he can’t recall whether the name Oxley Group familiar but said that it did sound familiar.

The addenda to the services agreement, Gregory says, were developed by the hospitals CEOs and were about the services which the concessionaire would ultimately provide.

12:40: Gregory testifies that RSM then helped the Steering Committee as consultants together with David Galea’s BEAT Ltd. 

Filletti is getting into the nitty gritty of the process, now asking about the payments that Vitals would receive.  The initial set payment was of €51 million which was split across two-years as a transitory period, and a “per-bed fee” would then follow from there.

Filletti asks whether the concessionaire was bound to spend money on anything particular, but Gregory replies that they weren’t – the money was simply paid to provide the hospitals service.

12:20: George Gregory is the next witness.  He is an accountant, and he seeks the court’s permission first and foremost to be exempted from professional secrecy.  He works with RSM Ltd.

Lawyer Stefano Filletti asks for RSM’s involvement in the hospitals concession.  Gregory says that in 2015 the company was engaged by Projects Malta to assist in the drafting of the Request for Proposals (RfP) for the concession.

Filletti asks for details about the RfP, why RSM was involved and what their work consisted of.  Gregory replies that RSM was engaged to work on the financial side of the RfP – Ganado Advocates, he says, handled the legal side.

12:17: The representative from the treasury department is back on the stand.

She exhibits a number of documents which had been requested by the defence.  They appear to be a list of payments to Steward Health Care and Vitals Global Healthcare, but the list is incomplete because the accounting system had changed and she had been unable to retrieve information from the old system.

The Treasury, she says, is simply an intermediary when it comes to these things.  Her testimony ends there.

12:05: The sitting is back in session.

Caruana is back on the witness stand, and says that neither Harbinson nor Milenovic featured on the list of experts.  Schiriha asks whether that means that due diligence wasn’t done on them, and Caruana replies that since their names weren’t on the list, then it means that there was no due diligence on them.

Caruana’s testimony ends and she is allowed to depart.

11:38: We’ve got one witness left for today – George Gregory – but the court says that there will be a short break before.

The sitting is suspended and we will reconvene at 12pm.

11:34: Caruana is still testifying: the questions and her replies have delved into the real technicalities of how court experts are classified and how the judiciary can choose experts – even if they’re not in the list.

There isn’t a procedure for how an expert is chosen if they are not on the court’s own list of experts. Members of the judiciary are free to do so, but the authorities do not vet whoever they appoint or how much they cost.

“Incredible… what a racket,” lawyer Gianella De Marco – who was running the latest line of questioning – comments as she sits down.

11:24: Justice Department director Katia Caruana is the next to testify.

She is asked by Debono where the experts in the inquiry are paid from, but Caruana says that the justice department doesn’t issue payments – that’s in the hands of the Court Services Agency.

Lawyer Michael Sciriha asks what due diligence was done on two particular experts: Harbinson Forensics and Miroslava Milenovic – but Caruana says that she will have to check.

Debono now asks some questions, particularly on who considers applications for one to be considered a court witness – and it emerges from Caruana’s testimony that experts are not necessarily vetted before being added to the list.

“There is the basis for a strong reform, but maybe not in this sitting,” Debono quips.

Caruana says that the justice department doesn’t have the competence to exclude one expert or another – the discretion is ultimately in the magistrate’s or judge’s hands.

11:11: Joseph Zammit, the chief officer for Finance from Malta Enterprise, enters the courtroom next – but it soon turns out that none of the defence actually has any questions for him.

“You came for nothing, sir, you can leave,” the magistrate tells the would-be witness, and he departs.

11:10: Alison Delecia is the next witness.  She is a British national who lives locally, and she is testifying in English.

She testifies that she was the PA to the director of Vitals Global Healthcare Ram Tumuluri, and that after Steward took over the concession she continued to work with Tumuluri in his personal capacity.

Deborah Chappell, she says, also worked for Tumuluri.  That is all that is required of her, and she steps off the witness stand.

11:04: Lawyers are continuing to discuss the matter with the magistrate.  Debono cites the recent case concerning Hollywood actor Alec Baldwin, and locally the case concerning Ali Sadr – both were liberated because they weren’t given proper disclosure.

“In other countries, disclosure is given a lot of importance … when we speak about it in Malta, it’s like we’re talking about space,”  Debono says.

Magistrate Caruana says he will decree on the matter from Chambers.

10:57: The witness is allowed back into the courtroom – and it is Magistrate Caruana who leads the questioning this time.

He asks the witness to read out the search warrant again, and points out that the articles of law specified that the warrant includes offences related to bribery and trading in influence – however Frendo replies that when he carried out the search “they weren’t suspects at that point.”

“They held information which could be useful to an investigation,” Frendo insists.

Debono tries to ask another question, but the court deems it to be direct and stops the question.  The lawyer says he doesn’t have anything further for the witness, and Frendo departs the witness stand.

Debono now stands to verbalise a request:

“Kevin Deguara, Jean Carl Farrugia and DF Advocates request the expungement of all documents and devices and any material which was elevated from a search warrant dated 31 August 2021 as this was done in very clear breach of Article 355G and 355AUA [both of which govern privileged documents],” he says.

“I’ve been working here for 24 years and everyone recognises that a search warrant places you in the status of a suspect,” Debono says after making the request.

The prosecution objects to the request, saying that the court is in a compilation stage and therefore doesn’t have the power to expunge any document.

If anything, this is a question to be brought up at a later stage, Refalo says.

10:42: Frendo steps out of the courtroom and more arguing between Debono and the Magistrate ensues.

“If this isn’t the answer you are looking for I cannot tell you anything,” the magistrate tells the laywer. “He is contradicting the document!,” Debono says.

Psaila now speaks to the magistrate:  he says that the DF Consultancy Services offices is laid out in such a manner that what belongs to DF Advocates is clearly labelled.  He raises an example that if he, in his own personal capacity, had to rent office space within the same building, then he certainly shouldn’t be subject to a search if the search is meant to be on DF Consultancy Services Ltd.

“I’m going to ask the witness to read the warrant – the warrant is clear that the company was considered as a suspect; why he doesn’t want to say so, I don’t know,” Debono tells the magistrate.

10:36: Debono asks about a tablet, which belonged to Kevin Deguara, and a mobile phone, likewise belonging to Kevin Deguara.  Frendo cannot quite remember how and at what point of the search the devices were gathered.

Debono is going through other documents with his questioning pretty much on the same lines: it appears he is almost producing an indicative list of the documents he’s going to seek to be expunged from the case.

It is pointed out that Farrugia was abroad at the time of the search and Debono asks whether things had been elevated from his desk despite the lawyer being abroad. “It could be,” Frendo says.

The lawyer again asks whether the police inspector considered any of those being searched as a suspect, and whether DF Consultancy Services Ltd was considered as a suspect.  “To me, it wasn’t,” Frendo replies.

Debono doesn’t like the answer and keeps pressing but the Magistrate stops him and says that Frendo has already answered the question twice.  A tetchy argument between Debono and the Magistrate ensues until the Magistrate is handed a copy of the search warrant.

Debono tries again to ask the witness, but the answer is again not to his liking. Lawyer Ezekiel Psaila now asks the Magistrate whether the witness can step out for a bit so they can discuss the legal points surrounding this testimony.

10:21: Debono points out that documents covered by lawyer-client privilege are protected by law, and asks the former inspector whether he was aware that this particular document falls under this classification.

“There were a lot of documents which fall under this, but our instructions from the magistrate was to gather everything where one of the keywords was mentioned,” Frendo replies.

Debono brings up a second document, asking the same question.  He tells Magistrate Caruana that he is asking such questions as he wishes to get evidence which he believes was gathered outside the terms of the search warrant be expunged from the case.

Frendo asks to read the search warrant again: he quotes from it that he was authorised to carry out a search at the address of DF Consultancy Services and elevate documentation as necessary.  There is no distinction, he argues, in who the documents he had to elevate had to belong to.

“It was found in the offices of DF Consultancy Services Ltd, it featured one of the keywords, my instructions were clear, so I elevated the document,” Frendo says, going back to the document on screen.

He continues that police officers knew that any document that was elevated from the scene may have been covered by lawyer-client privilege.

10:12: Former police inspector George Frendo is the next witness to take the stand.  He was part of the force up until October 2022.

Much of his testimony thus far has focused on a search which was mounted at the offices of DF Consultancy Services and lawyer Jean Carl Farrugia – who it turned out had been abroad at the time.  Lawyer Franco Debono grills the witness on his part in the searches: did he know the distinction between DF Consultancy Services Ltd?  Were Kenneth Deguara and Jean Carl Farrugia suspects? What were police looking for in the search?

Deguara and Farrugia, at the time, were not considered as suspects, the inspector says.  What he had was a search warrant, and had the duo been considered as suspects at the time, they’d have been arrested, he says.

Furthermore, he says that he had not mentioned DF Advocates and the searches were for DF Consultancy Ltd. 

He added that he was acting on instructions from those above him who in turn were acting on the instructions of the inquiring magistrate.

DF Advocates, the inspector testifies, was not one of the keywords in the police’s searches.  However, Debono now brings up a page out of the inquiry and says that the document is from DF Advocates Ltd – but the former inspector says that the document contained one of the keywords, and so he had elevated it.

09:56: Lead prosecutor Francesco Refalo has informed the court that lawyer Andrei Vella has filed a court application in his capacity has representative of the company Gateway Solutions Ltd.

He takes the witness stand but says that there are certain things he cannot testify about due to lawyer-client privilege and says that he did not seek permission in order to testify.

Vella says that the company Technoline was never a client of the Camilleri Preziosi law firm, but Gateway Solutions was.  He had helped Gateway purchase some shares from Technoline, but the firm hadn't had any contact with Gateway for a number of years.

09:48: This being said, it appears that the witness has not brought the documents required by the defence, and has been instructed to return to the courtroom later today.

09:45: Today’s sitting, before Magistrate Leonard Caruana, has started, with the first witness – a representative from the Treasury Department - being summoned to the stand.  However, unfortunately we don’t really know for sure what was said: journalists were stuck outside the court room as nobody opened the door to the viewing gallery of the courtroom