Court dismisses police interview bugging allegation

A court has dismissed challenge proceedings filed by a lawyer against the Commissioner of Police, demanding he investigate a police inspector whom the lawyer accused of leaking a covert recording of a conversation between the two, to newspaper columnist and blogger Daphne Caruana Galizia.

Lawyer Lynn Zahra had filed the case back in February, claiming that Police Inspector Jason Francis Sultana had recorded her when she had met him at the Sliema police station to discuss a possible criminal libel case against Caruana Galizia.

Zahra insisted that she had only spoken in the presence of Inspector Jason Sultana and Superintendent Ray D’Anastasi at the station. She alleged that during the conversation, Inspector Sultana produced his mobile phone from his trouser pocket and placed it on the desk between them and recorded the conversation.

But in a meticulously researched, seven thousand-word judgment delivered yesterday, Magistrate Aaron Bugeja threw out the lawyer’s case, holding that there was insufficient prima facie evidence to uphold her complaint.

The court noted that both inspector Sultana and Caruana Galizia had been questioned and both had denied that Sultana was involved. "It cannot be said that the police had failed to investigate the matter," said the magistrate.

The court had heard three witnesses testify that Sultana had not recorded the conversation, which it said meant that the link between Sultana or D'Anastasi and the recording was not a strong one.

But the court had also analysed whether the case would stand, without the witness’ testimony. It noted that from Zahra’s “extensive deposition”, she had based her complaint not on direct proof, but on circumstantial evidence and inferences she had drawn from this evidence.

Making reference to several previous decisions and reputable legal scholars, Magistrate Bugeja noted that while it was possible to prove a fact through circumstantial evidence, this would have to be thoroughly investigated “with great circumspection” and result in an “unequivocal link between the fact and the person.”

It noted that no objective, direct evidence of the existence of the recording had been brought, and although Caruana Galizia’s article had indirectly confirmed its existence, the court had not been provided with a copy of the recording to allow it to independently verify its contents.

“Even assuming that Sultana had made the recording”, said the court, “it had not been shown that he had passed it on to Caruana Galizia...the court would have to rely on the assumption that once Sultana had recorded the conversation, and once the phone was his, it was also him to passed it on to Caruana Galizia...the court cannot supplement evidence with conjecture and assumptions.”

Inverse criminal proceedings, resulting from a complaint filed by Sultana against Zahra, remain ongoing.

Lynn Zahra reacts

In a reaction sent to media newsrooms after the judgment was delivered, Zahra said "several poorly thought-out arguments...were elicited by the Magistrate to negate my claims against Inspector Jason Sultana, whilst all cogent points were set aside." 

Pointing to the magistrate's doubt that the inspector would have placed his phone, on which he was supposedly recording the conversation, on his desk, in full view of the target, she retorted that, "maybe the Magistrate thinks that this was the first time that a mobile phone was placed in full view of a victim who was being secretly recorded?"

She dismissed, offhand, the possibility that someone could have been eavesdropping outside the room, saying that the recording would have been unintelligible, contrary to Caruana Galizia's report.

"The deduction that I make from this decree, which refers to an incident in which I was definitely recorded at a Police Station, and my conversation with a Police Inspector published, is that walls in Police Stations have ears and therefore, confidentiality and privacy obviously cannot always be guaranteed."