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Vitals corruption case: Police did not see 78 boxes of evidence before filing charges
Police in the Vitals corruption case involving Joseph Muscat and associates hammered by defence over failure to investigate, question suspects • Court hears how prosecution relied solely on inquiry conclusions to press charges without seeing 78 boxes of evidence
13 June 2024, 9:21am
Matthew Agius
Matthew Agius
3 min read
Joseph Muscat making his way to court for the second sitting in the Vitals case where he is charged with corruption and other serious crimes (Photo: James Bianchi/MaltaToday)
Serious cracks are already starting to appear in the prosecution’s case against Joseph Muscat, Konrad Mizzi, Keith Schembri and others as the case against them continued this morning.
The three former government officials and others were charged two weeks ago with serious crimes in connection with the government’s fraudulent hospitals deal with Vitals Global Healthcare.
Magistrate Rachel Montebello heard witnesses and many legal submissions as the compilation of evidence against the disgraced former Prime Minister, his former energy and health minister Konrad Mizzi, and former chief of staff Keith Schembri, as well as 12 other individuals and nine companies, continued on Thursday. All of the defendants are denying wrongdoing.
Police Inspector Wayne Borg, who was only involved in the latter stages of the investigation, took the witness stand in today’s sitting. In what felt like a never-ending loop of similar questions and answers, it emerged that the police had not carried out investigations of their own. Neither had the police questioned the suspects before issuing the charges.
Konrad Mizzi talking to reporters outside the law courts on Thursday (Photo: James Bianchi/MaltaToday)
Inspector Borg made it clear that the police had simply relied on the inquiring magistrate’s conclusions when charging the suspects, repeating the mantra-like refrain an alarming number of times.
From the witness stand, Inspector Borg also repeated several times that he had not seen the contents of the 78 boxes of evidence, but had instead, relied solely on the magistrate’s proces verbal as a basis for charging the suspects.
The police and Attorney General’s decision to rely on the inquiry, alone, before pressing charges in such an unprecedented, important and politically-delicate case, against defendants of such prominence, is very hard to explain away as a simple oversight or a mistake borne of inexperience.
The Attorney General and the Commissioner of Police, who the court was told, had instructed police inspector Wayne Rodney Borg and his predecessor not to carry out any investigations of their own, appear to have done the absolute minimum possible at law and had - whether knowingly or unknowingly is yet to be seen - potentially sabotaged the prosecution’s case.
The sitting was adjourned to next week.
What are the charges?
In addition to money laundering, fraud and conspiracy charges, Muscat and Mizzi face charges of accepting bribes and corruption in public office, while Schembri will be charged with offences relating to the solicitation of bribes and abuse of his office to exact an unlawful advantage.
Nexia BT’s Brian Tonna and Karl Cini are charged alongside their firm with having knowingly assisted Muscat to accept bribes.
READ ALSO: Vitals inquiry: Grand Theft Malta
Who is charged:
Steward Malta Management’s legal representative, lawyer David Joseph Meli, is charged in both his personal capacity, as well as in representation of Steward Malta Management Ltd, of corrupting public officials – namely Muscat, Schembri and Mizzi.
Steward’s British IT manager, Clarence John Conger-Thompson and its auditor, Christopher Spiteri, are also charged with bribery-related offences.
Spiteri alone is further accused of acting with grave dishonesty in carrying out the professional activity of auditor or accountant, as well as with making false declarations to a public authority, breaching professional secrecy and omitting or making false tax declarations for Pakistani entrepreneur Shaukat Ali Chaudhry and members of Chaudhry’s family. He is also accused of perjuring himself before the magisterial inquiry.
Spiteri in his personal capacity as well as that of auditor, together with Jonathan Vella, medical equipment supplier Ivan Vassallo and his business partner Mario Victor Gatt are charged with false accounting, both in their personal capacities as well as in representation of Technoline Ltd and Eurybates Ltd.
Spiteri is also accused, in his personal capacity as well as that of auditor, together with Jonathan Bondin and David Meli, as representatives of MTrace p.l.c. and Gateway Solutions Ltd, with having knowingly made false declarations to a public authority to obtain an illicit advantage.
Matthew Agius is Senior Reporter on Law and Court Affairs at MaltaToday.
He is also a Leg...
That is all for today. A summary of proceedings will follow shortly. Thank you for following.
Kurt Sansone
The court instructs the defence lawyers who want to summon witnesses for the purpose of prima facie to file applications before the next sitting.
Lawyer Vince Galea says that from the 78 boxes of documents that make up the inquiry, his client only has possession of 23, so far. The court reminds him that it is pointless to ask for this before prima facie is decided. “You are seasoned lawyers,” says the court. “You know what evidence can and can’t be used.”
The court adjourns the sitting to 19 June. The sitting is over.
Kurt Sansone
Defence lawyers Vince Galea and Arthur Azzopardi say the prosecution’s shortcoming is worse with regards to their clients since they had expressly asked to be questioned in the inquiry.
Lawyer Stefano Filletti asks the court to order that the prosecutors who had signed the charges, testify about what had led them to issue the charges. “If all of them relied on a third party, this could impinge on the validity of the charges,” Filletti says. His request is seconded by the other defence lawyers.
AG lawyer Francesco Refalo declares that the prosecutors were not the investigators in this case, but representatives of the Office of the Attorney General.
The court asks the defence to identify what witnesses they wanted to call to the stand at the next sitting. Lawyer David Bonello for Sciacca Grill asks that a representative from the Malta Business Registry be summoned. Lawyer Arthur Azzopardi asks to be allowed to cross-examine one of the experts in the inquiry but the court rejects the request, pointing out that the law states that the experts who had assisted the inquiry and whose report is exhibited in it, cannot be summoned as witnesses in the compilation of evidence.
Kurt Sansone
Police Inspector Wayne Borg took the witness stand. In a never-ending loop of similar Q&As it emerged that the police did not carry out a parallel investigation. Neither did the police question the suspects before issuing the charges. The police simply relied on the inquiring magistrate’s conclusions when charging the suspects. The witness also said the police had not seen the 78 boxes of evidence but relied solely on the magistrate’s process verbal to charge the suspects.
Our senior court reporter Matthew Agius says the manner by which the police and Attorney General’s office acted – relying solely on the inquiry without questioning the suspects or carrying out further or parallel investigations before issuing the charges – raises serious question marks about the prosecution.
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Lawyer Jason Grima asks whether the inspector knew what alleged false information his client Jonathan Vella had given to the magistrate? “No.” Neither did he know where the €20 million figure emerged from, nor that Vella had not been spoken to during the inquiry.
The lawyer argues: “You said the decision had been taken by the police, you and your superiors, but also the AG.” Borg confirms the statement.
Franco Debono asks whether Sciacca Grill had been given an opportunity to be heard before the charges were issued. The reply is in the negative.
Another defence lawyer, Stephen Tonna Lowell asks: “So, who conducted the investigation, if not the police?” The witness replies: “The magistrate.” Borg says he knows this from the inquiry.
Tonna Lowell: “I have never encountered a compilation of evidence where the prosecution attempts to hide what it had done.” He asks what the witness had done with regards to Brian Tonna and Karl Cini. “Issued the charges,” comes the reply.
The defence lawyers with the exception of Tonna Lowell, tell the court that now it had emerged from testimony that the police had not carried out an investigation and that the defendants had not been given the opportunity, codified in the law, to provide a “reasonable excuse” in terms of the Money Laundering Act. As this could amount to a breach of their fundamental right to a fair trial, they were reserving their right to file apposite proceedings “at the right time.”
Kurt Sansone
After listing the experts’ findings, the magistrate wrote “about six lines” before proceeding to outline the charges, lawyer Vince Galea suggests. “On what basis did you base the charges?”
The police inspector replies that the charges were based on the whole 1,200 pages. At this point the magistrate erupts. “It is clear that the police relied on the proces verbal. There is no point in asking further questions about this. It is so evident.”
The witness adds: “I did not investigate anything. The inquiry does not recommend further investigations by the police.”
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Lawyer Vince Galea, who is representing former PM Joseph Muscat, asks: “So, with regards to Dr Muscat, on the part of the police force, there was nothing?” The lawyer asks the inspector whether he recalled that Muscat had filed a note informing the inquiring magistrate that he could not testify before her in view of separate, ongoing constitutional proceedings.
Inspector Borg explains that Muscat was not summoned to the police headquarters. He adds that in his opinion, when he is investigating, he would have summoned the suspects for questioning. But on this occasion, “they” meaning the police, had collectively decided not to question the suspects.
Galea asks in what form he had received the appendices to the proces verbal. Magistrate interrupts, pointing out that the issue was not relevant to the defence of the individuals and companies accused.
Another question about parallel investigations is disallowed, with the court pointing out that it had been asked ad nauseam. Galea suggests that the inspector had abdicated from his duty to investigate. “The 78 boxes and throughout the inquiry, we did not have visibility of the evidence,” says Inspector Borg.
Kurt Sansone
Lawyer Vince Galea asks who within the police force took the decision to press charges without investigating further and to rely solely on the inquiring magistrate’s conclusions.
The witness says it was himself, Superintendent Hubert Cini, Assistant Commissioner Fabian Fleri and the Commissioner of Police Angelo Gafa. The witness said it was his duty to sign the charges.
Vince Galea asks whether he had relied on the appendices when formulating the amount in Joseph Muscat’s freezing order. The magistrate tells the lawyer that she had already said that she would not be allowing questions about the freezing orders at this stage.
The lawyer asks: “How did you arrive at the amount of €30 million?” The magistrate amends the question: “Why did you list that amount?” The amounts emerged from the inquiry and were suggested by the AG, Inspector Borg replies from the witness stand.
Galea points out that he had to clarify whether he had drawn up the charges alone or with the AG, asking who from the AG had worked with him on them. All the prosecutors present in court today, he replies. The magistrate rebukes the lawyer, telling him that his questions had to be helpful to his client’s defence, and not to satisfy his curiosity.
Galea said that he had initially understood the witness to be claiming to have relied blindly on the inquiry conclusions, but now it was not clear whether he had taken that decision alone or upon consultation with someone else. “The decision was taken with the consultation of the AG and my superiors,” the witness rebuts.
Galea reminds the inspector that the decision to charge the defendants had not been taken long ago, only a few weeks. “I read most of the appendices; there is a small part of them which I had not read,” the witness adds.
Kurt Sansone
The witness says this was his first inquiry, in reply to a question from defence lawyer Mark Vassallo. The lawyer asks the inspector what the normal practice is but the presiding magistrate overrules the question: “He cannot testify about a practice if he never participated in an inquiry before!”
The lawyer continues to ask whether the inspector was told of the legal obligations on the police but the court stops the question. Instead, the magistrate asks the witness: “Why did you only base the charges on the inquiry and not investigate yourselves?” The witness repeats the same reply: “We relied on the inquiry.”
Defence lawyer Veronique Dalli asks a question. At some point in drawing up the charges, the inspector must have seen the appendices. Another Maltese business, which featured in the inquiry but was not charged, had been working in tandem with her client and this was clear. “Did you send for the other entity?”
The witness replies: “I did not investigate. I was only assisting the inquiry.” Taumac, the company, had not been spoken to before or after he took over the police side of the investigation. He adds that the police were not given a copy of the inquiry. “When I joined the inquiry, I was not given the full documents. I absolutely did not have visibility of what was happening in the inquiry.”
Answering a question by the court, Inspector Borg says he had not found a police investigation when he took over. Asked who took the decision to rest on the inquiry for the charges, Inspector Borg replies it was “the police force”. Pressed on this, he says that the decision had been taken by him with “his superiors.”
Kurt Sansone
After an unpleasant back and forth between de Marco and the magistrate, the lawyer is allowed to ask the witness when he had read the conclusions of the inquiry. What form of proceeds of crime did he find, the lawyer asks.
The witness replies that he did not recall whether any criminal proceeds had been mentioned in connection with Mario Gatt and once again shifts the responsibility onto the inquiring magistrate’s conclusions.
“He doesn’t know on the basis of what the proceeds were made or what the crime is,” the lawyer says. “We relied on the conclusions of the inquiry,” the inspector reiterates for the umpteenth time, adding they did so for all of the defendants.
“The police did not investigate,” the witness says again.
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Defence lawyer Giannella de Marco asks whether the witness had seen the entire proces verbal from the inquiry, including the testimony and nominations of experts or just the conclusions.
Inspector Borg replies that he had seen the names of the witnesses but not the contents of their testimonies. He confirms that he had drawn up the charges on the basis of the magistrate’s conclusions.
Giannella de Marco: “So you just parroted the conclusions?” The mantra again: “I relied on the conclusions of the inquiring magistrate.”
Inspector Borg reiterates: “My role when I took over the police investigation was to notify the witnesses for the magistrate.”
De Marco asks about the appendix of the inquiry relating to Mario Gatt and the money which he was supposed to have received. The witness replies: “I did not deal with Mario Gatt; I would be lying if I said anything else… I relied on the inquiry. I did not draw up the appendix.”
The lawyer persists: “What led you to file the charges?” The inquiry conclusions, not the appendices, the inspector replies.
“Look at the state which we have arrived at,” says the lawyer accusingly, being stopped from continuing by the magistrate, who tells de Marco that the argument should not be made with the witness still on the stand.
Replying to another question, Inspector Borg confirms that he had not corresponded with the banks, either. Kurt Sansone
Lawyer Jason Grima takes over cross-examining the witness. No parallel investigation took place, he suggests. The Court points out that the question should have been made to the inspector who preceded him in heading the police investigation.
The witness says that he took over after that stage, but that as far as he knows, no other investigation had been carried out by the police.
Grima suspends his cross-examination of the witness and tells the court that he intends to call the inspector’s predecessor to the witness stand at a later stage.
Kurt Sansone
Franco Debono reads from the Criminal Code:
'Notwithstanding the provisions of sub-article (5), in case of doubt the Commissioner of Police may consult with the Attorney General who may direct that no proceedings are to be taken or that the proceedings to be taken are to be for a charge or for charges different from those specified by the magistrate in the procès-verbal, without prejudice to the right of the Attorney General to direct otherwise whenever fresh evidence becomes available.'
Debono asks: “Had the police consulted with the Attorney General before issuing the charges?” The stock reply again: “We relied on the magisterial inquiry.”
Kurt Sansone
Defence lawyer Franco Debono asks whether the police had carried out further investigations after receiving the inquiry. “No,” replies the witness.
“As the law on money laundering postulates the possibility of the person accused giving a reasonable excuse, had the police sent for them to see if they had one?” Debono asks. “We relied on the inquiry,” replies the inspector.
Debono asks: “What did the police’s work consist of in this inquiry?” The inspector says the magistrate would identify witnesses and he would summons them.
Asked by the court, he clarifies that he had only taken over the inquiry from another inspector at a late stage. “The 78 boxes were never in my possession. I never saw them,” Inspector Borg says.
Debono asks what evidence he knew of against Sciacca Grill. “Personally, I did not see any. I did not see the 78 boxes,” the police officer replies. He explains that the police’s only involvement, insofar as the boxes of evidence were concerned, was transporting them to the office of the AG. “The police only ever saw the proces verbal and the inquiry’s appendices,” he says.
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Wayne Rodney Borg says he is an inspector at the Economic Crimes Section, investigating fraud cases. Defence lawyer Stefano Filletti asks about what he investigated with regards to Adrian Hillman.
He had not, he says, but had relied on the inquiry. “Who had investigated Adrian Hillman?” “Nobody,” replies the inspector. “We relied on the inquiry.”
A murmur of surprise ripples around the courtroom. The inspector confirms that he had not seen the evidence in the boxes.
Filletti asks: “Have you ever spoken to Adrian Hillman?” “No. We relied on the inquiry,” the inspector replies.
Inspector Borg confirms that he had read the conclusions reached by the experts. Asked how long ago he had received the inquiry he replies: “About a week ago.” He relied on the magistrate’s findings and had signed the charges.
Kurt Sansone
The court rejects the argument, saying the reading of the charges by the AG or by a police officer satisfies the legal requirement that the court hear the report. However, it upholds the defence’s request to hear a police investigator testify as the law stipulates that “the court shall examine and reduce to writing the evidence adduced on behalf of the accused.”
A failure to hear testimony at this stage would render the compilation proceedings defective, she says.
Subsequently, Inspector Wayne Rodney Borg takes the stand.
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Defence lawyer Franco Debono argues with the magistrate, after she points out that he had just made another request. The court appreciates when the parties obey its orders. She grants him permission to make the request, however. All the defence lawyers bar one join the request.
“Should Dr Filletti’s request, which we are agreeing with, not be upheld, we wanted to request that in this second sitting, the prosecution call the investigating officer to the stand,” Debono says, arguing this is a long-standing practice in criminal proceedings.
The court points out that the defence should have declared their intention to call the investigator as a witness when asked whether they had further submissions to make earlier today.
AG lawyer Francesco Refalo submits that the defence will have the opportunity to call its witnesses, but not at this stage.
Another defence lawyer, Charles Mercieca, argues that the court’s powers to call witnesses is one that only exists before the prima facie decree, because after that it is bound to hear the witnesses requested by the prosecution.
Kurt Sansone
Stefano Filletti continues that the court must be satisfied that the minimum had been done to justify the extreme measure of accusing them. The police investigator must confirm that this had been done and be subjected to cross-examination, he argues.
“The prosecution must accept that whoever confirmed the investigating report on oath is a witness and must be subject to cross-examination. If we are going to bring an inspector it is one thing, but if not we are accepting that whoever reads out the charges is to be subject to cross-examination,” the lawyer continues.
AG lawyer Francesco Refalo replies that the report is nothing more than the charges which were read out in the last sitting.
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Lawyer Stefano Filletti requests the prosecution state at what stage it intends to bring the police inspector who led the investigation to confirm it on oath.
AG lawyer Francesco Refalo replies, citing jurisprudence. He submits that it had been established that the reading of the charges on oath fulfilled that requirement.
Filletti dictates a note on behalf of the rest of the defence lawyers, formally requesting that the investigating police officer confirm the report of his investigation on oath, as laid down in the Criminal Code.
The magistrate points out that this is a further request and is evidently annoyed. She reminds the lawyers that she had asked them earlier today whether they had further requests and they had made none.
Filletti insists that it is necessary. The inquiring magistrate does not investigate, the role of the magistrate is to record the evidence collected and preserved by the police and give it a seal of authenticity. “Someone has to assume responsibility for the charges, because someone has to justify why these charges were pressed. Simply exhibiting the proces verbal from the inquiry is not enough,” he says. “We have a missing piece here.”
Kurt Sansone
A court usher brings out a large pile of papers from the magistrate's chambers and places them on her courtroom desk. Three knocks and the court is back in session.
The magistrate begins reading out her decree on the request for the revocation of its confirmation of the experts’ appointments. A ringing phone interrupts her. It’s owner, lawyer Vince Galea apologises. The magistrate tells everyone to put their phones on silent. “It’s a basic rule,” she points out.
Magistrate Montebello lists the various tasks which the experts were appointed to do in the inquiry. They are technical in nature. The court observes that the prosecution is correct in saying that any objections to the experts’ appointment should have happened at an earlier stage. At this stage, the court’s duty is to gather all the evidence available and would be failing in its duties if it upheld the defence’s request, she says.
The magistrate rejects the defence’s request.
Kurt Sansone
We haven’t gone anywhere but there is no movement as yet in the courtroom. Our senior court reporter Matthew Agius tells us the lawyers and prosecutors are chatting amiably while everyone waits for the magistrate to return to the courtroom with a decree. Kurt Sansone
Lawyer Jason Gatt also asks for more time to examine the acts of the inquiry, as do all the other defence lawyers. The court says it needs 30 minutes to compose a decree.
Franco Debono points out that he had been first to make the request and tells the court that he was happy to see the others following suit.
“It is obvious that you must have access to the documents,” replies the magistrate, making it clear that she would not be allowing the progress of today’s sitting to be stuck in a mire of endless requests. After asking half a dozen times whether there were any further requests, of which there apparently are none, the magistrate adjourns the sitting for a few minutes. Kurt Sansone
The first witness, a BOV representative, is called to the stand. The court excuses the witness from the obligation of banking secrecy. The witness exhibits statements from 1 Jan 2023 to date for an account registered in the name of Mario Victor Gatt.
Lawyer Giannella de Marco asks to see the document and shortly afterwards, reserves the right to cross-examine the witness at a later stage. The witness leaves the stand. Kurt Sansone
Attoreny General prosecutor Francesco Refalo argues that what is effectively being contested here is the probatory value of the experts’ evidence, not their appointment. They were appointed by the inquiry in the manner required by law, he says.
Filletti: “I am not attacking the findings of the experts, but their appointment. If this court needs an expert to establish what criminal offences were committed, it is admitting that it doesn’t know the law.” He reads out part of the decrees through which the experts were appointed: ‘…about every material evidence that is relevant for this purpose… and any criminal activity.’
Filletti insists the experts made “gratuitous conclusions”. “They are not experts in this field [criminal law]. Had they made a resume of financial transactions that would have been fine, but [their remit is] not to state whether or not a crime has been committed,” Filletti says.
The magistrate says she will examine the acts and rule accordingly. Kurt Sansone
Lawyer Stefano Filletti continues with his submissions. He requests the court to reconsider, revoking its confirmation of the experts’ nomination in these proceedings. “Because these experts have not demonstrated that they have knowledge of the Criminal Code and the Laws of Malta and are opining on the alleged involvement of Adrian Hilman in crimes which the same experts had identified,” he says.
Filletti continues: “This is the competence of a court of criminal judicature and no expert can be appointed according to law unless for expertise which the court lacks.”
Lawyers Jason Grima, Arthur Azzopardi and Chris Cilia join Filletti in making the request. The court says it will be issuing a decree on the matter later. Kurt Sansone
Defence lawyer Franco Debono continues to insist that he has not been provided with a full copy yet. “The court has already ordered that the defence be given a full copy of the inquiry,” replies the magistrate.
She dictates a note in the acts, stating that before Debono agrees that the court has sufficient evidence before it for prima facie, the lawyers need to have a full copy of the inquiry and will only declare the company’s position after this happens. Kurt Sansone
Magistrate Rachel Montebello says the court is in the process of providing access to all the defendants. “You have 30 days… don’t disrupt the court. We are talking about prima facie. Have you gone to the registry to collect the scanned copy of the inquiry?” Kurt Sansone
Another defence lawyer, Franco Debono, begins addressing the court before Filletti has concluded. The lawyer is stopped and rebuked by the magistrate for speaking out of turn.
Filletti proceeds to list all the technical forensic financial analysts who had assisted the inquiry. The court asks who is not joining Filletti in his request.
Debono replies he isn’t at this stage because he and his client have not yet seen the full inquiry. Kurt Sansone
Lawyer Stefano Filletti makes a submission about the experts who assisted the inquiry, reminding the court that the defence had reserved the right to do so in the last sitting.
At least three out of the four experts reported on and concluded about offences listed in the criminal court, Filletti says. “The appointment of an expert is meant to be on the basis of special skills or knowledge which the court doesn’t have. Deciding on whether or not a crime has taken place is the sole competence of the courts,” he says. Kurt Sansone
Our senior court reporter Matthew Agius tells us three knocks on the door of the magistrate's chambers announces her entrance into the courtroom. She reads out the names of the defendants and takes down who is representing which company.
Much to everyone’s relief, including reporters, the magistrate informs the parties that today’s sitting will be over by 3pm at the latest. Kurt Sansone
Today’s second sitting comes days after the Labour Party suffered a haemorrhage of votes in the European Parliament election. Although it won a majority of votes, the PL fell below 50% for the first time since 2009 and the vote gap with the Nationalist Party is now a mere 8,000 votes from the 42,000 obtained five years ago.
Muscat’s arraignment and his foray into the electoral campaign before the election was ‘used’ by the PL as a means to bring out the core vote. However, it would seem that it could have had the opposite effect on moderate voters. Kurt Sansone
Our senior court reporter Matthew Agius tells us that journalists have been allowed into the courtroom, where the lawyers on both sides have already taken their seats. “We are waiting for Magistrate Rachel Montebello to arrive in the courtroom,” he tells us.
Proceedings are taking place inside Hall 22, which is the largest available and usually reserved for juries. The big hall is necessary because of the sheer number of people charged, the host of lawyers representing them, security personnel, and the number of media personnel who are following proceedings. Kurt Sansone
Joseph Muscat and Konrad Mizzi have arrived at the courthouse. Unlike in their first sitting, there is no crowd of supporters to greet them today. Kurt Sansone