I’ve been sent this very interesting write-up by a lawyer specialised in financial crime which explains why the Magistrate was wrong to heed the defendant’s demand to abrogate charges due to the error of the Attorney-General in its charge sheet. Allegedly, the error was because DF Advocates is not a registered entity. The lawyer is offering a different perspective altogether.
I’ve been reading your blog with interest and simply wanted to offer my expertise on a small matter related to the prosecution brought in the Vitals case. Before doing so, please allow me to introduce myself. (…)
You will see from reports in the press that the defendants at this stage are essentially asking the presiding magistrate to declare the charges brought as invalid because the police are not attaching ‘a report’ to the charge sheet (i.e. their own ‘account’ setting out the facts separately from the magistrate’s procès-verbal + the 78 boxes). The criminal code (chapter 9 of the laws of Malta) at article 390(1) sets down the criteria which must be fulfilled for compilation proceedings to be able to legally kick off without breaching the rights of the accused; failure to respect them means that the whole compilation may be declared null at a later stage once the parties raise preliminary pleas on what evidence may be produced before the jury (known as the pre-trial hearings, ex. Yorgen Fenech’s case is currently at this stage). The three requisites are: (i) hearing the AG’s charges, (ii) hearing the police report under oath and (iii) finally, hearing the plea of the defendants. Before 2021, the AG charges did not need to be heard and the law did not even mention them because only the police could initiate prosecutions before the Court of Magistrates. Article 390(1) was therefore amended to reflect 2021 amendments which saw the AG directing the prosecution of certain proceedings at compilation stage too.
The Code does not define the notion of ‘report’ at article 390(1). The defence is arguing that since a more ‘factual’ report containing police conclusions separate and distinct from the magistrate’s procès-verbal is not being presented with the AG’s charges then proceedings cannot be brought and everything is to be declared invalid (i.e. the kumpilazzjoni cannot even begin).
This is nonsense for two reasons, one legal and one practical. The legal is easy to understand since it has been decided several times by courts. Francesco Refalo is right to state that the charge sheet serves the function of the report and once the police officer declares on oath that he/she are bringing the charges and confirms their veracity then the requisites of article 390(1) are fulfilled (see the pdf attached, pp. 3 & 4). If the report is taken to be a charge sheet then it would be absurd to require both the AG and the police to file two separate charge sheets to prosecute the same case when one charge sheet would enough to inform the accused of the charges they will face (which is what the spirit of the law requires at this early stage).
Of course, Franco Debono, Stephen Tonna Lowell, Stefano Filletti and Giannella de Marco all know this because it is taught at university. But they want to waste court time by saying that ever since the AG has become prosecutor at compilation stage, the police must also file their own distinct charge sheet. They are relying on cumbersome drafting in the law where the conjunction ‘and’ has been used instead of ‘or’. Deep down they know that the charges brought against the 3 main culprits are pretty solid and will require commercial justification from those defendants, who have absolutely no cogent narrative to offer for payments they were to receive (from reading the inquiry’s findings, Muscat, Mizzi & Schembri’s dealings all bear the hallmarks of a get-rich-quick money-laundering scheme with criminal conspiracy/bribery/corruption/trading in influence and possible tax evasion in the Caymans as core predicate offences). Their main fear in these types of cases is that, once proceedings are made to continue, defendants may eventually be forced to take the stand to explain what their business consisted of.
As for the practical reason, the defence wants to split the prosecution in two by requiring both the police and the AG to file their own separate reports (one based on the procès-verbal and the other based on an independent police investigation), thereby giving distinct accounts based on parallel investigations of the same matter. They are doing this strategically since, if the police were to draft their own independent report, there is a good chance that it may leave facts out or narrate things differently to the way the financial experts and inquiring magistrate did. The mere confusion produced by having two reports mixing up facts and findings can then be relied on by the defence to show that the prosecution’s hypotheses are not at all persuasive and that there is consequently room for ‘reasonable doubt’ (with the usual, ‘ara dawn lanqas bejniethom m’huma qed jaqblu’ phrase in court). Of course, this is once again complete nonsense. There is nothing in the Code that requires duplicate investigations and to require them would be a whole waste of resources and time. Authorities will have to duplicate their expenditure on every financial crime investigation which involves the AG’s office and/or an inquiring magistrate.
Hope this helps to shed some light on the matter,
p.s. very telling is the fact that the incompetent State advocate has not filed a note to be admitted as an injured party into the proceedings. Nor has he sent someone to follow proceedings. The Curia was admitted as an injured party in the Marsaxlokk donations scandal where money donated to the Church was allegedly misappropriated for private ends, so there is nothing stopping a legal entity from filing as an injured party to recoup millions which were stolen from it through fraudulent schemes.
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