Julian Delia reported live from Hall 22 as the defence was making its final submissions at prima facie stage in the Vitals criminal case against Chris Fearne, Edward Scicluna and other defendants
LIVE | ‘Fearne knew what was going on’ in hospitals deal
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17:52 | We’re done for today – at least in the courtroom. Watch out for our video summary NEWZ MILL-QORTI later this evening.
17:40 | The next and last(!) submission from the defence today is made by Franco Debono on behalf of his client DF Advocates. Fun fact: He’ll keep it short, he said.
Presenting a group submission by himself and the defence lawyers Thompson and Psaila, Debono refers to legislation concerning criminal acts committed by executives of a body corporate (an entity which has a legal personality distinct to that of its members).
Urging the court to interpret the law restrictively, Debono says that this is relevant to the case because Kenneth Deguara is not (on paper) a representative of DF Advocates.
“DF Advocates cannot answer to any case because it does not reconfigure under the terms of this legislation, it’s like a case of mistaken identity when one person is asked to testify instead of another”, Debono insists.
He argues that since DF Advocates was not a body corporate entity nor a law firm at the time (a fact which was confirmed with the Malta Business Registry and a representative from the Chamber of Advocates), there is no case for them to answer.
17:38 | Yet again, Franco Debono feels the need to add more to Azzopardi’s thorough intervention about Robert Borg.
Debono says that while Borg was given the opportunity to testify twice in court, he was not doing so as a suspect but as a witness, meaning his status as an individual changed when held under suspicion.
He compares Borg’s multiple testimonies to the lack of opportunity given to other individuals who stand accused in this case.
17:33 | Referring to a note written by one of the court experts who were roped in for the inquiry and how the expert specifically said that there was no wrongdoing to be found in his regard, Azzopardi says that this certifies just how meticulously Borg carried out his work.
“Had one of these investigators bothered to speak to Borg directly, matters which he had testified about more than once, they would have known that there isn’t one single shred of evidence that can contradict what he said in those testimonies,” Azzopardi insists.
In conclusion, Azzopardi argues that the experts had listed who the key players were and who were the enablers, and the experts indicate which charges must be levied in whose regard.
Robert Borg is not listed among the experts’ list of potential accused, Azzopardi says, emphasizing that the courts which had rescinded the deal had found Borg not guilty of anything and that these courts had pointed out that the evaluation committee stage was one of the few aspects of the deal which was not totally tainted by fraudulent behaviour that was identified by the court.
17:20 | Arthur Azzopardi, on behalf of defendant Robert Borg, refers to the prosecution’s comments about Robert Borg (possible conflict of interest, dubious appointment process, affinity with key individuals involved with the hospitals concession) and says that whatever jurisprudence the court decides to refer to, it is likely that the evidence threshold for prima facie will still be exceeded, if but slightly.
Azzopardi says that court experts falsely asserted that Robert Borg was involved in the ownership structure of MaltaToday, an assertion which MaltaToday’s known owners are sure to deny.
When the court reviews the inquiry’s report, the experts who supported the inquiry did not mention Borg in connection with specific crimes, only this erroneous reference.
Azzopardi says that the prosecution failed to draw a distinction between the evaluation committee and the negotiation committee, and neither did the inquiring magistrate.
The lawyer also states that this failure to draw this distinction means that individuals like Borg and Camenzuli were accused of committing crimes during time periods in which they were no longer serving on these committees.
He passes the buck onto Cabinet, pointing out that, as had been previously attested to by Cabinet secretary Ryan Spagnol in his testimonies in front of this court, the final go-ahead would need to come from Cabinet.
17:12 | Ezekiel Psaila, on behalf of Manuel Castagna (Nexia BT, served on the evaluation committee) starts his submission by asking the court to consider Castagna’s role on the evaluation committee at the time in which the committee was constituted, and not in retrospect with the information we have at hand today.
Psaila states that in spite of PricewaterhouseCoopers’ solid reputation (remember: PwC had vetted the concessionaire’s bid and formulated its business plan), the evaluation committee nonetheless went out of its way to compile an additional report which stated that “should the medical tourism revenue of the deal be assessed correctly, then the concession is definitely going to be a success”.
Psaila says that the evaluation committee’s additional efforts to vet the bid that was presented to them prove that Castagna and his colleagues on the evaluation committee did their job as thoroughly as they could have at the time.
The lawyer takes aim at the connections which were drawn between Castagna, Keith Schembri, and the other individuals who are considered primary suspects in this case, claiming that there is no evidence which shows that Schembri influenced Castagna directly.
Psaila now pivots back to questions he had asked about the evaluation process and how the fitness and probity of the sole remaining bidder was assessed by this committee, arguing that if the bidders really were unfit for this concession, then they would not have managed to clear the “restrictive criteria” included in the request for proposals drafted (primarily, though not completely exclusively) by Ganado Advocates.
16:47 | David Farrugia Sacco is now making his submission on behalf of his client James Camenzuli.
Besides echoing many of the points already referred to in earlier submissions, Farrugia Sacco refers to an earlier (denied) request for a constitutional ruling about the need for an accusation and an authenticated police report to accompany it in such cases.
When a police inspector confirms under oath that an investigation was in fact carried out, that he received reports from his own team and external experts, he is giving weight to the court’s considerations, Farrugia Sacco explains.
“In this case, there is nothing, it is completely missing. When one of the police inspectors was asked to testify about the police’s findings, it was a correct request to make, because for the court to decide on the prima facie basis, somebody must take responsibility for those findings. In the testimonies we heard from the police, nobody did so.”
Farrugia Sacco now refers to his client, James Camenzuli, who had previously served on the selection committees which were responsible for awarding the concession to VGH. Camenzuli was roped in on the committees in early 2015.
Referring to the case filed by the opposition – which led to the rescission of the deal – Farrugia Sacco notes that the NAO had noted that the MoU had prejudiced the viability of the concession and that the concessionaire’s decision to conceal the MoU is a clear indication of fraudulent intent.
“This confirms that James Camenzuli was unaware of the existence of this MoU given that he was appointed after the MoU was signed”, Farrugia Sacco claims.
The defence lawyer makes another interesting argument, which effectively exonerates the evaluation committee and places the burden of guilt entirely on the signatories of this MoU:
He states that this concession was preconceived and that by the time Camenzuli was involved, there was no way Camenzuli would have been able to know that the VGH bid was the only one that was technically compliant and that there was no evaluation to actually carry out.
The defence notes that Camenzuli’s involvement was limited to just that one month in which he served as an advisor to the then would-be concessionaires.
Camenzuli is a qualified engineer and he was contracted to provide related expertise on the technical aspects of the concession’s development plans.
Farrugia Sacco’s conclusion: “I hope the court strongly considers that the police did not compile its own investigation and that they did not claim responsibility for their work under oath.”
16:41 | Galea continues his submission by citing court precedent to suggest that the prosecution’s submission accused Gatt of participating as an accomplice, when the charges that are listed in his regard effectively establish him as a primary ‘author’ of the crime he is accused of committing.
Franco Debono, also on behalf of Bradley Gatt: “This is another case which started with no evidence against him and now [the prosecution] has even less against him.”
Debono goes off on a now familiar rant which journalists in the viewing gallery have almost memorised by now – he repeats the points he raised earlier about the lack of investigation from the police force’s end and the attorney general’s reluctance to shed more light on how the evidence referred to thus far correlates with the process of issuing the charges (i.e.: on what basis the lawyers of the attorney general’s office ‘adopted’ the inquiring magistrate’s conclusions as their own).
16:35 | After Schriha finishes his submission, defence lawyer Franco Galea further substantiates his colleagues’ points by emphasizing that for the charges against Gatt to stick, it must be proven that Gatt was deliberately facilitating criminal activity in the deal.
This, he says, was not something which is apparent from the email exchanges in which he was named and in which he can be identified providing the legal advice he was contracted to provide.
The advice that Gatt provided was conformant to the law, and yet he is being accused of committing fraud to the detriment of the government of Malta.
“If he did not provide any services to the government of Malta, how is Gatt being accused of defrauding the Maltese government?”, Galea asks, as Gatt was serving as VGH’s consultant and not as the government’s consultant.
16:21 | It has to be said that, from our perspective as journalists who have been documenting extensive, widespread government corruption for more than a decade, it is extremely grating to hear one defence lawyer after the other suddenly sweating passionately over alleged breaches of the human rights of their clients, the very same clients who trampled over the rights of patients who were dependent on our healthcare system by signing a fraudulent deal that was vitiated by collusion.
Though the accused of the case had previously claimed credit for the concession when it was still being sold as “the real deal”, it is now the opposite – now that we have mountains of evidence to back up the NAO’s reports as well as two court verdicts from last year, nobody wants to be responsible for anything.
Schriha continues his crusade to exonerate Gatt, taking a leaf out of other defence lawyers’ playbook by selectively quoting whatever he thinks will exculpate Gatt from any wrongdoing in relation to this case. The court experts had accused Gatt of aiding the concessionaires by pointing out that the deal must be subject to a request for proposals, “a grievous criminal act”, Schriha says sarcastically.
He reverts to his previous point about how lawyers are meant to provide legal advice, and that Gatt’s prosecution jeopardises this. Overall, this submission is repetitive in its nature and mentions points which are similar to what was raised by his colleagues on the defence’s benches.
16:13 | Michael Schriha, on behalf of his client Bradley Gatt, says that all Gatt did was submit a legal assessment of the whole concession deal in 2015, only to then be referred to as a suspect in newspaper reports from this year.
Again, Schriha attacks the prosecution’s case by pointing out that Gatt was not interrogated by the police as a suspect.
Gatt, Schriha says, was simply tasked as an advisor as to what the legal framework for the deal should be, in the same way that entities like Ganado Advocates were asked to help.
“This is absolutely terrifying and totally unbelievable”, Schriha says. Waxing lyrical about the court’s role as a defender of human rights, Schriha says that the function of a lawyer is to provide advice, and that if Gatt is declared guilty for providing advice to the government, this will imply that the legal profession itself is under threat.
Schriha argues that Malta does not distinguish between legal advice and litigation privileges but acknowledges and applies one unitary privilege to encompass both. He further states that it is incumbent on legal professionals to ensure they do not fall foul of the legal privilege which they must protect.
16:08 | Filletti’s conclusion: “Had the inquiring magistrate thoroughly reviewed the court experts’ report, she would have seen the same problems we are referring to, though she nonetheless decided to copy and paste these conclusions word for word and take them as their own.”
16:06 | While the defence in Hall 22 does its utmost to cast doubt on the integrity of the process which led to today’s charges, US authorities are currently preparing a mammoth case against Steward Healthcare.
15:55 | Filletti further notes that in reference to wrongdoing committed by MTrace plc – unrelated to the points he raised about Deborah Ann Chappell – the experts could not even fully claim that misappropriation of public funds probably occurred but that, instead, it is merely framed as “potential” misappropriation.
“Potential is less than possible, and even less than probable”, Filletti insists, citing this specific line to further dismiss the findings of these experts while constantly peppering his submission with jibes along the lines of “we should be investigating the abuse of taxpayer money that these experts committed”.
He goes as far as implying that the court’s experts were “sexist” in Deborah Ann Chappell’s regard for highlighting that she was paid more than the standard rate that an in-house lawyer would be paid in a similar role.
15:46 | Similar to the line of attack adopted by other defence lawyers, Filletti continues to belittle the magisterial inquiry’s findings, picking on inconsistencies and details which the court experts got wrong (one example being that at one point, the experts from Harbinson picked up adverse media reports about an individual named ‘Shaukat Ali’ only for the defence to later note that it was another man bearing the same name as the individual accused in this case).
Filletti points out further inconsistencies that the experts picked up on, including an erroneous reference to a firm named Muscat & Mizzi in which it was seemingly implied that this firm belonged to Joseph Muscat and Konrad Mizzi. He flatly describes the experts’ report as “phony”.
“Instead of telling us how Deborah Ann Chappell committed the crime of money laundering, the experts said that they do not suggest that Chappell had oversight over the financial records of the company, but just questions whether she should have carried out further due diligence on the finances of the company.”
Filletti insists that this would not have been the role of the in-house lawyer in this case. Nonetheless, he says, Chappell had in fact asked questions about the finances of the company and was told that everything was well and that she could proceed with her work accordingly.
15:30 | Lawyer Stefano Filletti returns for his submission on behalf of Deborah Ann Chappell.
The defence, referring to the prosecution’s submissions about Chappell and her central role in the hospitals concession, questions whether Chappell’s involvement in the deal and her role as a point of contact during the negotiations can be considered a criminal act.
“What argument is this? What is the crime that the court is being asked to decree on?” The defence points out that Chappell is accused of the largest amount of charges in the whole case, including the largest freezing order issued in relation to the case, and that this means that evidence which directly points to her wrongdoing must be of an even higher quality than for the other individuals who stand among the accused.
Filletti insists that for Chappell’s role in this alleged organised crime syndicate to be proven, it must be shown that ten or more people were involved in a conspiracy to commit a crime and that Chappell willingly and deliberately participated in this conspiracy.
The defence seems to be expecting the prosecution to magically whip up enough evidence to prove the intent of the accused in a complex crime that required several layers of secrecy and deceit to pull off.
In reality, the prosecution does not need to actually prove criminal intent and illustrate a clearcut plan to commit the crimes that the accused are said to have committed. In actual fact, the illicit money flows highlighted by the inquiry report are what the defence will need to explain later on if and when the compilation of evidence stage begins after next week’s hearing.
The Prevention of Money Laundering Act envisions the reversal of the burden of proof on the accused, meaning that the accused – in particular, key players like Shaukat Ali and Ram Tumuluri – will have to provide a sufficient explanation for the funds they are known to have acquired through the concession.
15:10 | The sitting is suspended for 10 minutes.
14:45 | Ezekiel Psaila now intervenes on behalf of Kevin Deguara and Jean-Carl Farrugia.
Psaila argues that the defence is faced with “spontaneous suggestions” and that “gratuitous assertions” were the basis of the charges their clients are facing, insisting that there was no certainty of suspicion from the prosecution’s side, let alone certainty about wrongdoing committed by Deguara and Farrugia.
Claiming that his clients restricted themselves to fulfilling their legal obligations to their own clients (VGH and Steward Healthcare), Mamo TCV – the firm who took over the brief after DF Advocates – stated that there was nothing irregular about what Deguara and Farrugia did with that brief.
Psaila claims that if his clients did not wish to follow the letter of the law in relation to this concession deal, they would not have roped in legal consultants who effectively tightened the conditions of the concession rather than making it easier to carry out any illicit activity by diluting the requirements.
Psaila emphasizes that DF Advocates were first hired in 2014, before the concession was publicly issued and that funding from the concessionaires at the time seemed legitimate given that they were paying their fees regularly, cannot be considered as an entity which was cognisant of the financial troubles which the concessionaire was facing.
Deguara was hardly mentioned in the conclusions of the inquiry report, his lawyer notes, except for emails which linked him as an intermediary between the office of the prime minister and the concessionaires. Psaila dismisses these emails as “conjecture”, claiming that no matter how hard the defence tried to look for the evidence against their clients, there is nothing tangible that the prosecution can prove.
In conclusion, Psaila states that the prosecution burdened the court with determining whether all the “suspicions” raised by the inquiring magistrate are legitimate and in fact indicative of the fact that a crime was committed.
“Being a professional who does their job correctly and keeps track of all minutes and emails from discussions you were involved in, along with all the legal advice given to my clients by external legal advisors, is good practice.”
14:30 | The next submissions are being made by Franco Debono on behalf of his clients Kenneth Deguara and DF Advocates, and by Ezekiel Psaila on behalf of Jean-Carl Farrugia and Kevin Farrugia.
Picking up where he left off in his previous submission on behalf of Alfred Camilleri, Debono now argues on behalf of Kenneth Deguara that this “tragic” situation is a result of the police’s failure to investigate the deal directly.
The situation was “extremely serious”, the lawyer says, since his clients were allegedly denied their right to legal representation and the right to disclosure of evidence in their regard.
“If the court feels serene that our clients’ rights were respected in this process, then we will bow our heads to the court’s discretion, though we would of course consider our constitutional rights in that case,” Debono growled.
“If someone had the decency to interrogate Deguara and asked him for his input on the matters raised in his regard, he would have been able to clarify,” he adds.
Debono reiterates his grievances about the way court experts were appointed and further claims that the authorities’ failure to summon Deguara to testify effectively contributed to what he claims is a totally untruthful portrayal of his client.
The Criminal Code, Debono argues, suggests that the prosecution must seek evidence which both incriminates and/or exculpates someone who is accused.
“To my understanding, that clause in the Criminal Code clearly means that part of the evidence which could exculpate a suspect includes their own testimony, which was completely ignored in this case”, he adds.
Referring to Sciacca Grill’s acquittal, Debono compares Deguara’s situation to that of the company that was acquitted, along with that of his other client Alfred Camilleri.
He argues that there is no case to answer for with all three individuals, hammering home the point that no evidence was submitted to prove that any money was actually laundered by any of the accused.
“We found a wall whenever we tried to look into the details of how this evidence was gathered and whenever we questioned the prosecution’s process, this process which was based on what the prosecution repeatedly described as a voluminous report which led to charges being issued in regard of several people,” Debono insists angrily.
14:23 | Repeating previous submissions, Giannella De Marco insists the prosecution must prove every element of the crime that was allegedly committed with evidence that is deemed admissible by the court.
De Marco also notes that the criminal court had also previously decreed that the court must be sure that there is enough grounds for a prima facie case to be proven, arguing that “a hundred suspicions do not amount to a single bit of evidence.”
She buttresses her argument with this point, concluding that the court ought to dismiss the charges against Mifsud Bonnici in this regard.
14:12 | The defence further dilutes Mifsud Bonnici’s role in this concession, arguing that in every instance in which Mifsud Bonnici was present for a project-related meeting, his only role was to serve as legal advisor to the government, one among others who were also fulfilling a similar role.
Defence lawyer Giannella De Marco refers to a statement made by the prosecution in its earlier submission. Lead prosecutor Francesco Refalo earlier stated that Mifsud Bonnici was aware of the issues surrounding the deal but chose to neglect his duty to do anything to stop it.
“Where does this come from? How did the prosecution establish this?”, De Marco asks.
De Marco explicitly asks the prosecution to state why it believes that all of the accused behaved in a criminally conspiratorial manner when there is no specific attribution of fraudulent intent to the accused we are seeing in court today.
She describes her client as “an innocent agent”, comparing Mifsud Bonnici to a postman who unwittingly delivers a letter bomb to a victim and arguing that a lack of criminal intent exculpates Mifsud Bonnici in this regard.
De Marco argues that for Mifsud Bonnici to be considered in breach of organised crime laws, it must be proven that he did so conscientiously and that this organisation persisted after the crimes were committed.
Furthermore, the prosecution must prove the point of this organisation (what was it set up for?) and that a plurality of offences were committed. She briefly cites Italian anti-mafia laws which further highlight the aforementioned points.
14:02 | De Marco further insists that the process through which the concession was publicly announced and opened for submissions was thorough, referring to how both Ganado Advocates and an Irish specialist firm to ensure that the initial request for proposals and all additional relevant documentation was drafted accordingly.
Tellingly, the defence casually skims over the fact that an MoU was signed months before such a public call was announced, arguing that the government’s final decision to resort to an RfP was a legally sound approach that was recommended by the government’s legal advisors.
Note: Mifsud Bonnici was one of the legal advisors who suggested this approach, which yielded a total of three bids, two of which were not even compliant with the highly specific conditions imposed by the request for proposals.
It is also pertinent to note that the NAO had based its conclusion that the concession agreement was vitiated by fraudulent and collusive behaviour specifically because of the MoU and the fact that the final agreements closely mirrored that which was already set out by that MoU.
De Marco further points out that, given that several key individuals on these committees (including David Galea from Beat Ltd, Konrad Mizzi’s point man on the deal) were not brought in as suspects, then Mifsud Bonnici shouldn’t be among the accused, either.
13:50 | Defence lawyer Giannella de Marco, on behalf of her client Aron Mifsud Bonnici, starts her submission by stating that – following Mifsud Bonnici’s government appointment as legal consultant in relation to the hospitals concession – her client is now considered a suspect.
Upon reviewing the report compiled by the experts appointed by the inquiring magistrate, the defence insists that Mifsud Bonnici is not mentioned as a key individual in the deal. Mifsud Bonnici is not mentioned in the appendices attached to the inquiring magistrate’s report.
“On what grounds is Mifsud Bonnici being accused by the prosecution? These reports were filed on 22 April 2024. The magistrate’s conclusions were published on 25 April, 2024. We all tried to review the 75 boxes [it’s 78 boxes] of evidence attached with this case, and I think it took us more than four days to do that. Somehow, the magistrate did that”, De Marco says.
Just like every other defence lawyer we’ve heard so far today, De Marco points out that her client is being accused as an accomplice to the crimes, stating that no illicit gains were named in connection with Mifsud Bonnici and that therefore fraud cannot be proven in this regard.
Likewise, the defence claims that there was no reference to Mifsud Bonnici’s alleged participation in organised criminal activity.
13:05 | We’re getting a lunch break! The sitting is suspended until 13:45.
13:03 | In a brief additional intervention, Filletti adds more to what fellow defence lawyer Michael Schriha stated before him, arguing that Rapa’s ability to interfere with the case and/or actually halt it was extremely limited by the fact that decision-making was largely assigned to the committees that vetted the deal.
12:59 | Borrowing yet again from fellow defence lawyers who made their submissions before them, Schriha states that his client Joseph Rapa was not listed as a key player, and the (somewhat thin) claim that his conduct was “certified” by the National Audit Office.
Schriha claims that there isn’t enough to even prove as much as an administrative misdemeanour, “so how can it possibly be proven that Rapa has a criminal case to answer for?”
12:42 | Defence lawyer Michael Schriha starts his submission on behalf of his client Joseph Rapa.
Schriha says that for this court to serve as the “temple” which must defend citizens’ rights, it must address what he describes as his client’s “nightmare”.
Another sweeping statement: Schriha claims that if Rapa and other civil servants are found guilty in this case, then the country may end up in a situation in which the entire civil service’s operations are “stultified” by the fallout of this case.
The defence argues that civil servants will no longer want to sign off on anything if the civil servants involved in this case are found guilty for doing so.
The defence further argues that such public officials must not be held accountable for their actions in such a context, claiming that basic details like clearly identifying the role of a permanent secretary were not included in the inquiring magistrate’s report.
Schriha claims that all Rapa did was try and fulfil his duty, and that in the three times he was asked to testify in relation to this case, he said as much. Taking a cue from his fellow defence lawyers (though he said he’d avoid repetition), Schriha insists that the NAO did not condemn any kind of illicit conduct on Joseph Rapa’s behalf and that all the authorisations issued from his desk were not deemed irregular.
Generally, it is quite interesting to note that the defence seems to have no issue with the NAO’s largely very damning reports about the hospitals concession deal, using them solely to cherry pick quotes about their individual clients to claim that they did nothing wrong. The inquiring magistrate’s report, on the other hand, is apparently riddled with holes and amounts to less than nothing in terms of evidence.
Though none of them would admit it, this may or may not have something to do with the fact that the NAO does not have any powers of enforcement beyond its role as an auditor, whereas the inquiring magistrate had the power to land them all in court, which she did. The NAO’s report can be dismissed without consequence, but the inquiring magistrate’s cannot.
While lead prosecutor Francesco Refalo temporarily left the room, Schriha takes the opportunity to trash talk him, claiming that the prosecution’s body language indicates that they do not truly believe the charges they were levying against the accused, with Schriha explicitly stating that “I would not want to be a hair on the prosecutor’s head”.
12:40 | The Daphne Caruana Galizia Foundation gave us a heads up on their Instagram postings which summarise the court cases relating to the fraudulent hospitals deal. Have a look into Part 1 and Part 2 of the foundation’s comprehensive explainer.
12:21 | In his eternally grating style, defence lawyer Franco Debono – on behalf of Alfred Camilleri now – begins his submission with a major sweeping statement: “There is nothing to talk about at the prima facie stage because there is nothing to talk about in Camilleri’s regard.”
Debono refers to the email exchange between former finance ministry chief of staff Paul Debattista and former finance minister Edward Scicluna previously submitted in court as evidence.
He argues that this email exchange does not show any wrongdoing committed by Camilleri, and that the veteran former civil servant was not in a position to do anything about the deal because he was constantly left out of it.
Waxing lyrical about the court’s role as “the last bastion of a citizen’s human rights”, Debono insists that there is nothing on his client and that the prosecution is waffling in its approach towards the accused in the sense that it is not outright stating what evidence it has on each of the accused.
Debono also insists that the prosecution must explain how come certain individuals – like, for instance, George Gregory, who was involved in a significant part of the entire evaluation process – were not among the accused of the case.
12:14 | Referring directly to Harbinson’s report and the disclaimers included within it, Filletti says that the report was not meant to be used for anything other than the inquiring magistrate’s conclusions and that the firm specifically distanced itself from claiming any responsibility for the outcome of whatever the report ends up used for.
Filletti’s tirade against the court experts’ conclusions does not take anything away from the fact that it is standard practice for money laundering cases to have far lower thresholds for what is considered conclusive evidence and can be considered a probable, sound conclusion.
Due to the complexity of such money laundering schemes, which often involve multiple jurisdictions, several layers of offshore companies to mask ownership, and the kind of secrecy with which such conspiratorial acts are typically carried out, money laundering laws must be designed in such a way as to shift the burden of proving the legitimacy of the provenance of funds onto the accused.
Read ‘The Paradox of unexplained Wealth‘ on cap.mt.
Adopting an approach similar to Tonna Lowell before him, Filletti selectively quotes from the experts’ report to refer to instances in which Ronald Mizzi is cited by name and takes pot shots at the prosecution about how exactly they got to the conclusion that he is to be accused of these crimes.
The defence lawyer again takes the police force to task for failing to inform Mizzi that he was being investigated as an individual suspected of committing a crime rather than questioned as a witness, leading to a breach of his right to disclosure.
Filletti defends the process through which the deal was set out, how bids were evaluated, and how the tender was finally adjudicated. He claims that at every stage, the committees stuck to the instructions given to them “to the letter”, and that Mizzi could not have been accused of committing such fraud when the inquiring magistrate’s conclusions outlined that he did not involve himself enough in the concession.
11:56 | We are now hearing defence lawyer Stefano Filletti’s submission on behalf of his client Ronald Mizzi.
“Mizzi cannot be accused of all the types of fraud which can be committed at law at once. The prosecution must indicate what kind of fraud was committed here. They accused him of failing to prevent crimes as a public official. With all due respect, this is not a crime – the article cited by the prosecution in Mizzi’s regard (141) is an aggravation of a crime, not the crime itself.”
“It was not adequately shown that Mizzi is not just a public official, but a public official who is legally obliged to prevent such crimes”, Filletti says.
Citing court precedent featuring a former public official accused of the same crime, a court had previously concluded that it must indeed be proven that the public official was duty-bound to prevent such a crime.
Filletti refers to the legal concept of criminal intent when committing fraud, arguing that the Criminal Code stipulates that such fraud must be proven through evidence of illicitly obtained money.
“The attorney general must, on a prima facie basis, prove how the crime occurred and what illicit gains were made from this deal”, Filletti insists, asking “where are these elements in Ronald Mizzi’s regard?”
Filletti states that the prosecution has not illustrated how Mizzi made illicit money (if any), how he behaved in a fraudulent manner, or how he carried out a “mise-en-scene” which shows a clear plan to deceive others and thereby committing a crime.
“The court must analyse the evidence at hand and whether there is a case to answer – so, the court is facing three counts of fraud in Mizzi’s regard. Can the court reasonably conclude that all the parameters that establish fraud were actually present here?”
The inquiring magistrate’s conclusions refer to Ronald Mizzi as a key enabler of the deal, as pointed out by the prosecution in its intervention earlier.
Filletti contests this conclusion, arguing that if the inquiring magistrate concluded that Mizzi is an accomplice, how can the prosecution describe him as an author of this fraud, given that he is being charged with committing fraud himself.
11:52 | To spare us some time, Tonna Lowell states that he will not repeat the points raised about the competence of these court experts and how they were appointed, and that the accused he is defending were not directly linked with the concession.
“The inquiry report’s conclusions about Edward Scicluna are based on nothing”, Tonna Lowell claims.
“Is there any proof to sustain all this? Because I can reassure you that there is no proof that they committed as much as an ingredient from a crime. This is pure fantasy.”
It must be noted that the defence has not, at any point in any of these hearings, substantiated its theory about why these court experts would be so keen on effectively defrauding the state by carrying out poorly researched work and charging exorbitant fees while they’re at it.
The defence lawyer points out Edward Scicluna’s refusal to award more money to the concessionaires: “Edward Scicluna not only did not facilitate the deal but he actually prevented more money from going to Steward”.
11:40 | Tonna Lowell repeats his arguments on behalf of Edward Scicluna – that within the experts’ assessment, there were no references to the former finance minister in relation to the wrongdoing he is accused of committing, given that he was not consulted directly on how the concession was set up.
Tonna Lowell argues that Scicluna’s defence was different to Fearne’s, although both dealt with the lack of evidence: “The experts said that the finance minister had the power to stop everything, which is not true, as this is not a parish band club”.
11:32 | We’re getting a short break.
11:31 | Citing one of the NAO’s reports, Tonna Lowell lumps most of the media sector into one handbasket destined for hell, conflating the fake articles which were circulated about Fearne’s regard with legitimate investigations which painted him in a far less flattering light. He claimed that the courts’ experts were so hell-bent on nailing Fearne that they didn’t even get certain aspects of his testimonies right, including getting wrong dates on certain statements made to the inquiring magistrate.
11:22 | The magistrate, who has remained remarkably calm in spite of the repeatedly ignored warnings to the defence for their interventions to be as concise as possible, reminds the defence that if they go on for too long, the court will not even have time to write up the transcripts of what they are saying.
11:06 | The magistrate points out that Tonna Lowell has already taken up 40 minutes, saying “at this rate, we will be staying here until midnight without any breaks”.
Shuffling around a few papers and promising that he’ll only refer to key points from now onward, Tonna Lowell continues his lengthy submission about the experts’ statements about Fearne, which he argues confirms what was already stated by the National Audit Office in its report.
To put it mildly, Tonna Lowell is stretching the truth here. You can find a detailed analysis about Fearne’s role in the deal on cap.mt.
The defence is now nit-picking miniscule details about the experts’ report, at one point claiming that minor errors like incorrect details about Fearne’s start in politics and the exact name of the roles he formerly occupied ought to prove the amateurish way in which this work was carried out, telling the magistrate that he is saying so “to show the court just how those 11 million euros were spent”.
We will try to filter the bulk of the interventions ahead to include only that which has not been referred to yet or otherwise highlight only the most salient aspects of what is being said. At this rate, we really will be staying until midnight, and the magistrate reminds Tonna Lowell once more that it is time to wrap up.
Tonna Lowell dismisses the evidence at hand as “observations and hypotheses,” insists that the way these experts were appointed must be scrutinised, that none of this amounts to proof of crime but rather as observations, and that even if all of the contents in the report were to be believed, it would at most lead to confiscation of assets if the law allowed for it.
Returning to his client, the defence lawyer insists that for the inquiring magistrate to reach those conclusions, she must solely rely on the evidence at hand, not the “observations” that these experts came up with.
“There is no evidence about Fearne because he is totally extraneous to these proceedings.”
“I must remind the court that Fearne had sought legal advice to terminate the concession in 2018…so when forensic analysts like Miroslava Milenkovic reach the kinds of conclusions they reached about Fearne, this is simply wrong.”
Tonna Lowell insists that up until that date, Fearne was not directly linked with the concession, which was being administrated through the various ministries occupied by Konrad Mizzi during his time as minister.
“The notion that Fearne looked away and did not do anything about these crimes is not true”, Tonna Lowell adds.
11:02 | Tonna Lowell further points out in his submission, that due to legal changes made in early 2014, the compilatory court is precluded from leaning solely on jurisprudence to form its judgement.
The defence lawyer argues that this court must examine how these accusations in Fearne’s regard were made and that the crimes he is accused of committed ranged between January 2016 and 2024, though the attorney general attributes crimes to him which were carried out in 2013.
“I am not asking the court to not look into what happened before that time period, but I would be shorting the court if I didn’t mention any of these things.”
Taking a jab at the prosecution for objecting to every single request filed by the defence without elaborating much further about what evidence it bases its objections on, the defence lawyer continues breaking a lance for his client, repeatedly pointing out that Fearne is not mentioned as one of the “key players” cited by the experts’ report in the inquiry’s procès-verbal.
10:53 | Tonna Lowell on Chris Fearne specifically:
“I won’t clog the court with jurisprudence, but everyone knows that the key element of fraud is a mise-en-scene. Fraud is defined by intent. There is no proof of material intent to commit a mise-en-scene or to appropriate any money in Fearne’s case.”
“The court must determine whether enough proof exists in this regard. If the court looks at the inquiry’s conclusions, though there are no explanations for these crimes, Fearne was nonetheless accused of these crimes.”
“I asked the police inspector to explain how the charges came about, as we had previously assumed my client was not suspected of committing a crime since the police had not carried out any investigations.”
10:45 | Tonna Lowell continues with his submission, arguing that the court must not only decide to move forward with the case but that it must be mindful of the evidence threshold at the prima facie stage.
“Today, there is no case to answer at the level between the probable and the possible”, Tonna Lowell declares.
“Whatever the level of evidence here is to be, this is not meant to be a superficial level of analysis of proof. In fact, court precedent shows that the examination of the evidence must be detailed, not the quality of the evidence itself.”
Tonna Lowell further argues that the evidence which is considered legally admissible must be the basis of any and all decisions, which is why the defence is attempting to expunge as much evidence from the case as possible.
He says that in order for the accused to be charged of all the crimes they committed, some of the aspects of these crimes and the way they were prosecuted cannot be ignored, and that all the elements which do indeed qualify that a crime has been committed and documented must be present in all charges.
10:36 | Defence lawyer Stephen Tonna Lowell: “The issue at hand is this: the court has 78 boxes of evidence of it and the conclusions of this inquiry. The decision which will be taken by the court must be taken purely on the evidence which is admissible.”
“I’d like to state that there are no disagreements with the court precedent cited by the prosecution, which is after all basic jurisprudence.”
Tonna Lowell then goes on to cite the case of the Republic of Malta v Joseph Muscat, which decreed that there is enough evidence to indict Muscat and the other accused in that parallel case.
Tonna Lowell: “This court is autonomous, but we are in an anomalous situation we’ve never seen in this court. We have a situation in which the police said, under oath, that they did not investigate anything. The attorney general does not wish to explain what led to the issuance of these charges. We only heard an explanation that refers to the conclusions of the magisterial inquiry. There is no reference to any evidence in the prosecution’s submissions. They do not refer to evidence – they refer to the report.”
Tonna Lowell picks up on the points which the defence has been building towards over the past few weeks, claiming that the court experts who were appointed for this inquiry effectively led the inquiring magistrate by the nose since the inquiring magistrate relied on their conclusions so heavily.
“We don’t know what those conclusions really are in this case. How can the prosecution tell us it rests on the inquiring magistrate’s conclusions?”, Tonna Lowell asks rhetorically.
10:27 | Refalo moves on Bradley Gatt, accused of complicity in fraud among other charges, saying that since Gatt had given legal advice to circumvent the MoU, Gatt is also considered a suspect.
Refalo on Aron Mifsud Bonnici:
Bonnici was appointed as a legal consultant for this concession while also knowing what was happening behind the scenes. As concluded by the inquiring magistrate, Mifsud Bonnici was present for meetings held at the health ministry, along with the concessionaires. The RfP was issued on the basis of discussions held between Mifsud Bonnici and DF Advocates to resolve the issues which were created by the MoU.
Refalo on James Camenzuli and Manuel Castagna:
James Camenzuli, the chairman of the evaluation committee, is accused of complicity in fraud. Manuel Castagna is accused of complicity in fraud and participating in organised crime.
In Castagna’s regard, much like Camenzuli and all the other accused, the inquiring magistrate’s conclusions were clear, the prosecution says.
Castagna was a close associate of key players involved in this web, including Keith Schembri. Because of his affinity with influential people, he was an ideal person to enable the crimes committed by the accused.
Refalo on Robert Borg:
The former GWU accountant is accused of complicity in fraud. He was appointed as a member of the evaluation committee, and was appointed solely because of his close connection with Labour Party officials.
Along with Castagna, he was crucial for ensuring that the concession would be awarded to VGH, and it is thanks to their actions that VGH was selected, the prosecution says.
Refalo: “Magistrate Caruana, with all this in front of us – the inquiry’s conclusions, the evidence we have, the court precedent I cited earlier, this Court has no choice but to, with all due respect, formally indict all of the accused.”
10:20 | Refalo on Kevin Deguara (DF Advocates): again, the prosecution points out it stand by the inquiring magistrate’s conclusions.
“He was one of the individuals who is accused of committing crimes (like money laundering) which he facilitated through his profession. The prosecution in this case wholeheartedly agrees with the conclusions of the magistrate.”
Refalo pretty much repeats the same formula with the rest of the individuals who stand accused today, including:
Kenneth Deguara, who “knew full well” what the concessionaire’s troubles consisted of and yet still pursued the deal to its full end, in spite of the fact that he knew about how compromised the deal was),
Jean-Carl Farrugia, who was also conscious of what was happening and served as an intermediary between the concessionaire and the office of the prime minister,
and DF Advocates, which the prosecution insists this was a legal firm and that this was in fact represented by Farrugia and the Deguaras.
Zeroing in on DF Advocates in particular, the prosecution emphasizes that by using its own accounts and through collaboration with other firms like Nexia BT, the legal firm successfully managed to commit money laundering.
Refalo: “It results that Deborah Ann Chappell was a key contact point for key players in the concession as well as designing the contracts which were used to carry out this fraud. This firm knew full well about the fraudulent nature of the deal and did nothing about this.”
10:09 | Refalo now moves on to dealing with each and individual accused, starting with disgraced former health minister Chris Fearne:
“According to the inquiring magistrate’s conclusions, he knew of the concession and what was going on. He was in contact with individuals like Armin Ernst and had not rescinded this concession.
He was informed about all of this, he had received communication from individuals like Brian Tonna.
When Tonna asked disgraced former minister Kornad Mizzi about whether he knew what was going on, Mizzi said he would tell him about it.”
“Fearne is accused of fraud and misappropriation. The prosecution’s thesis, in line with the inquiring magistrate, is that he knew of what was going on and that he had enabled all of this through his silence.”
Refalo moves on to Central Bank governor Edward Scicluna:
“When Scicluna was finance minister at the time, he was fully aware of what was happening around him and the money that was flowing into the concession.”
“This is not something that the prosecution is saying – it is what the court’s experts concluded. Scicluna, in his role as former finance minister, had the power to stop all of this, but this did not happen. On this, the magistrate’s conclusions are also the prosecution’s conclusions as well.”
Refalo on Ronald Mizzi:
“He stands accused of misappropration, fraud, and failing to prevent crimes he was duty bound to prevent. We embrace the magistrate’s conclusions on this as well.
Mizzi was involved through his position as Konrad Mizzi’s permanent secretary. This was at the time when the concession was being negotiated and was then eventually awarded to VGH.
It resulted that he was the individual responsible for the appointment of the board that set up the RfP, and he did so while knowing full well that there were individuals who may have had a conflict of interest. Nonetheless, he kept going as if nothing was happening.”
Refalo on Alfred Camilleri:
“He stands accused of the same crimes Ronald Mizzi is accused of, and the prosecution stands by the magistrate’s conclusions. Camilleri was a director at Projects Malta and simultaneously served as permanent secretary within the finance ministry.”
Refalo on Joseph Rapa:
Repeating his assertion that the prosecution stands by the magistrate’s conclusions, Refalo says that Rapa is accused of the same crimes as Mizzi and Camilleri. “He was aware of what was happening and yet failed to prevent all this from happening.”
10:05 | Prosecutor Francesco Refalo makes the first submission.
“We must first see where this case began. This began with a voluminous magisterial inquiry that was presented to this court, along with the inquiring magistrate’s conclusions. Those conclusions were clear, and in these conclusions, several persons were indicated as the accused we see here today and in other separate cases.”
“What does the inquiry contain? A considerable amount of documents which were gathered and analysed by experts who were appointed by the inquiring magistrate. These same experts were all confirmed by this court.”
Citing court precedent, Refalo points out that at the prima facie stage, if there is even the slightest shadow of a doubt that the accused may be guilty, this must automatically lead to the next stage of the proceedings.
“In this case, the inquiring magistrate did not order further investigations in this case – she ordered arraignments. The inquiring magistrate was certain that these individuals were to be charged, which is what in fact happened.”
Citing further precedent, Refalo emphasizes again just how minimal the evidence threshold is, “somewhere between the possible and the probable”. The Constitutional Court had previously concluded that if there is evidence put forward by the prosecution which may lead to a guilty verdict, even if there is evidence which may exculpate the accused, the magistrates’ court must necessarily decide that the case must move forward to compilation of evidence.
09:58 | The defence formally declares that it no longer has any evidence to bring to court at this stage, bringing an end to the very long list of witnesses who testified so far. We now move on to submissions.
09:48 | Mary-Louise Bugeja from the Court Services Agency takes the witness stand again. She was asked to provide further information about the court experts who were appointed by inquiring magistrate Gabriella Vella.
Harbinson, the main forensic analysis firm which did the bulk of the work involved, were paid over 10 million, with the additional one million euros distributed among the rest. Payments issued to Harbinson – spread over four years’ worth of invoices.
The defence asks the witness to provide further information about what this significant sum of money was spent on, and the witness is asked to provide copies of these invoices for the court’s benefit.
Defence lawyer Giannella de Marco remembers she wanted to raise a point. Citing court precedent, the defence lawyer points out that standardised tariffs for these services should have been provided instead of what she describes as “exorbitant” fees for their services.
The witness responds that it is not within the Court Services Agency’s remit to determine these tariffs and that it is the magistrate who has the final say on which invoices are paid.
After giving a brief explanation to the court about the information that she compiled at the defence’s request so far, the witness steps off the stand.
09:42 | Good Morning! We’re back in Hall 22 for one last time this week before magistrate Leonard Caruana is set to decree on whether there is enough evidence at the prima facie stage for the case to move forward to the compilation of evidence stage.
Today, we are expecting to hear the last few witnesses and lengthy concluding arguments from both the defence and the prosecution.
