Second Vitals case stalls after ‘most serious’ prosecution blunder
The second case in connection with the hospitals inquiry which saw former Deputy Prime Minister Chris Fearne and Central Bank of Malta Governor Edward Scicluna appear in court dragged late into Wednesday night, only to be stalled after a “most serious” blunder by the prosecution.
The case was the true meaning of a marathon, starting at 11am and only being deferred in uncertain circumstances at 10:15pm.
Fearne and Scicluna pleaded not guilty as they were charged with fraud and misappropriation together with dereliction of duty in association with the now annulled hospitals concession.
12 other people, including a sitting government permanent secretary, also pleaded not guilty to the charges against them in what was the second sitting associated to the hospitals inquiry.
These were 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.
However there was one more entity on the charge sheet – which already had to be substituted once during the case owing to a blunder by the Attorney General’s office when the initial charge sheet was issued earlier in May.
This was DF Advocates, and as soon as the charge sheet was read out, defence lawyer Ezekiel Psaila pointed out that DF Advocates did not actually exist as a company, because it was simply a ‘trade name’ and therefore there was nobody to answer on its behalf.
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.
Defence lawyer Gianella De Marco asked whether that means that the day’s proceedings had been declared null, to which the magistrate said that it’s not him saying this, but it is the law.
It is not clear as to what exactly will happen next: the magistrate deferred the case to the morning of 11 June, but did not leave the courtroom before blasting the prosecution for its blunder.
“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.
Prior to that, the sitting was characterised by hours upon hours of legal wrangling, to the point that it took almost a whole working days’ worth of time before the accused were allowed to make their pleas to the charges.
The first matter at hand was a prosecution request to substitute the charge sheet issued on 6 May with a new one which did not include one of the companies charged – DF Corporate Advisory Ltd. This is on the basis that DF Corporate Advisory Ltd did not actually exist between 2013 and 2023 – which is the period of time that these charges cover – as it was established on 1 January 2024.
It took an hour or so of legal debate before Magistrate Leonard Caruana ruled that the charge sheet could be substituted without the case being sent back to the registrar and back to square one.
Next came a host of submissions from the regiment of defence lawyers present in the courtroom who complained on behalf of their respective clients.
Franco Debono – who was speaking for Kenneth Deguara and Kevin Deguara – was amongst the most vocal, together with Stefano Filletti – who was representing Alfred Camilleri, Ronald Mizzi, Joseph Rapa, and Deborah Anne Chappell.
They argued that their clients rights had been breached for a range of reasons: that they were either not summoned to testify, or that if they were, they were not offered their right to legal counsel, their right to silence, or their right to disclosure because it had not been specified that they were suspects.
Further arguments followed – even before the charges had formally been read out – that the Attorney General’s office had not adhered to a decree from 20 May which stipulated that the accused had to be provided with the evidence against them.
Defence lawyers argued that they had only been provided with the magistrate’s 1,200 or so page proces verbal and not the adjoining evidence (78 boxes of it) from the inquiry and said that they were not being given enough time to prepare their defence within the context of the prima facie decree and within the context of freezing orders which were going to be requested.
Attorney General lawyer Francesco Refalo, argued that the decree made a distinction between the proces verbal and the other material evidence in terms of what should be provided, and the Magistrate – after an hour-anda-half of the sitting being suspended – backed the prosecution.
More wrangling followed and Debono requested a constitutional reference – which is in effect a request for the case to be suspended pending this matter being decided by the constitutional court.
However, it had to be granted by Magistrate Caruana, and he did not accede to the request, stating that since at that point the charges were yet to be read out in open court then one couldn’t seek a reference because proceedings hadn’t formally been done.
And so, at 5pm the charges were finally read out by Attorney General lawyer Rebekah Spiteri.
However more legal wrangling followed: the defence first wanted to cross-examine the prosecution in order for them to justify the charges that they had just read out, and when the magistrate rejected that request, they said that the case could not proceed because a police officer had not presented an official report associated to the charges.
Inspector Wayne Rodney Borg, who is part of the prosecuting team, took the witness stand and confirmed that there is no such police report – precisely because there were no police investigations into the matter, as the prosecution had just relied in the magisterial inquiry and its conclusions.
“So you signed a charge sheet, but you didn’t investigate the case?,” Debono asked. The inspector replied in the affirmative and said that he relied on the magisterial inquiry.
Another half an hour or so was spent arguing over what the defence could and couldn’t ask the inspector, before lawyer David Farrugia Sacco – who was representing James Camenzuli – filed a request for another constitutional reference.
This time it was because he felt his client’s fundamental right to a fair hearing had been breached because the proces verbal which had been indicated as the official report was not actually part of the acts of the case.
This too was rejected after the prosecution argued that all of the accused were given a copy of the inquiry’s proces verbal so they should know why they were in the court room.
Lawyer Stephen Tonna Lowell – representing Fearne and Scicluna – noted this and observed that both he and his clients had read the proces verbal and they had no idea why they were there.
It was just before 8pm that the accused were finally asked for their pleas, and all of them – perhaps as expected – pleaded not guilty to the charges before them.
This is when, however, the debate on whether DF Advocates could be charged commenced, and where the case would stall.
If the day’s proceedings were to be declared null on the basis that one of the accused was not notified of the case, then it’s not clear exactly what the next step will be.
There is the possibility that the whole process that was undertaken on Wednesday would essentially have to be repeated after the Attorney General rectifies the mistake by either correctly notifying DF Advocates or simply withdrawing the charges against it altogether.