Magisterial inquiry underway into fraud allegations against notary's widow

A magisterial inquiry into potential fraud by the widow of notary Ivan Barbara, requested by three former clients last year, has begun and is currently gathering testimony from all affected parties - understood to number at least 35.

In a decree giving its assent to the appointment of a magisterial inquiry into potential fraud by the late notary Ivan Barbara and his wife last November, the Criminal Court had highlighted the need for Special Investigative Magistrates, resurrecting a draft bill from 1997 which was overlooked and never passed into law.

The inquiry, which is being conducted by Magistrate Yana Micallef Stafrace, is understood to have started earlier this year.

The Criminal Court's ruling had been made in proceedings filed by three clients of the late notary, in which they had requested a magisterial inquiry into what they claim to be the fraud and misappropriation of over €30,000 from them by the notary and his wife, Rosanne Barbara Zarb.

Simon Mallia, Matthew Sacco and Valerie Mallia had entered into separate promises of sale with third parties, paying deposits on the contracts by means of cheques which the notary had then cashed.  After Barbara’s death in India from Covid-19, the plaintiffs had requested his office refund them the amounts they had deposited.  

Initially, Rosanne Barbara Zarb had told them that the refunds were being delayed by the fact that Notary Barbara’s death certificate had not yet been issued due to bureaucratic issues. However, when they later enquired as to the progress of the refunds, they were informed that the defendant had renounced her husband’s inheritance.

Their worst fears were confirmed when, after news of the inheritance issue hit the headlines, several of the notary’s clients had made inquiries with government departments to check whether the tax that they had paid on property contracts had been received. They were told that no payment had been received, meaning that their contracts were never registered, meaning that they needed to fork out, for the second time, the amounts in tax that they had already entrusted with Barbara to settle.

In his November decree, ordering the magisterial inquiry to begin, Mr Justice Giovanni Grixti disagreed with the implication that the magisterial inquiry, as an institution, had equal investigative powers at law to those granted to the Commissioner of Police. “In the understanding of this Court, this is mistaken because the primary function of the inquiring magistrate, both historically and today, is that of preserving the scene of the crime and all the evidence relating to the alleged crime so that they can be brought as untouched evidence in the case of proceedings against third parties. Nowhere in the Criminal Code or in some other law, are the investigative powers of the inquiring magistrate mentioned.”

The judge conceded that in many cases the preservation of evidence required “a certain element of investigation” by the magistrate which could diminish the conclusions reached by the police. Grixti however also points out that in reality, to date inquiring magistrates are dependent on the powers of the Commissioner of Police. “And this can, as historically also happened, lead to a situation where the inquiring magistrate depends on the investigative faculties of the police in cases where the same police do not feel that an investigation is required, much less proceedings on those merits.”

He made reference to Bill number 45 of 31st October 1997, which was a draft law aimed at creating a Special Investigative Magistrate who would investigate corruption and related matters. That Bill however, never passed into law, due to the change in government in 1998.

“In summary, this draft had envisaged the setting up of the institution of Special Investigative Magistrate, empowered to carry out inquiries and investigations according to functions and duties listed therein.” The mere prospect of this new investigative position was, in itself, an indication of the lack of investigative power granted to inquiring magistrates, said the judge.

However, said the judge, even as it stands, the law still grants the inquiring magistrate the power, “or rather, the obligation,” to preserve everything that can be brought as evidence, and there was nothing to stop an interested party from requesting a magisterial inquiry into corruption cases.

Applying these principles to the case before him, the judge observed that the complainants had exhibited the prima facie evidence required by the law, consisting of copies of documents and sworn declarations, for it to be wise that a site visit be carried out to preserve the documents and traces of payments made to the deceased notary, while the communion of acquests between him and the defendant had still been in force.

The judge had therefore dismissed Barbara Zarb’s requests and ordered that the acts of the case be assigned to an inquiring magistrate by rota.

The three victims are represented by lawyer David Bonello.