Updated 1.30pm

Court on Wednesday turned down a PN request to have the Vitals inquiry exhibited in its case over the state’s inaction to recover the defrauded funds, despite the government not objecting to the request. 

The government’s position is in stark contrast with that of the State Advocate who objected to the inquiry being exhibited, arguing that it was not relevant to the merits of these civil proceedings. 

The PN sought the court’s permission to produce more evidence - namely the proces verbal of the Vitals' inquiry - when it emerged that the inquiry into the privatisation deal of the three State hospitals had been concluded. 

Those criminal court documents were “intimately connected” to the merits of its case where it was asking the civil court to order the State Advocate to take action to recover the funds taken on the fraudulent deal, argued the Opposition.

Since these recent developments took place after the Opposition had wrapped up its evidence, the court’s authorisation was necessary for that documentation to be allowed in evidence, it added.

The Opposition thus asked Mr Justice Toni Abela to grant it permission to summon the Registrar of the Criminal Courts to present the requested documents.

When the case resumed on Wednesday, lawyers representing the government as an intervenor in the suit declared they were not objecting to the Opposition’s request. 

That position taken by the government was minuted by the court. 

The State Advocate, however, objected, arguing that those criminal records were not relevant to the decision that would ultimately be taken by Judge Abela on the merits. 

During the previous sitting, the government, as an intervenor in the suit, was granted six days to indicate any witnesses it intended to summon after requesting more time to produce evidence.

The government presented documentary evidence, including a copy of government circulars and copies of the Government Gazette relative to the period between October 2014 and November 2019. 

They also exhibited a copy of the Vitals judgment delivered by Mr Justice Francesco Depasquale which first annulled the fraudulent deal. 

After some animated arguments by the parties, Wednesday's hearing was suspended for an hour or so to allow Mr Justice Toni Abela sufficient time to write his decree.

That decree was then read out in open court. 

'Court turns down the Opposition’s request'

The judge observed that whereas the government did not object to the Opposition’s request, the State Advocate stood firm by his position, registering his objection to the end. 

In light of the Opposition’s original application, the court was being asked to order the State Advocate to act in recovering the defrauded funds.

The court could not honestly see the relevance of their subsequent request concerning the criminal inquiry records for the purpose of that original request, thus turning down the Opposition’s request for the exhibition of those criminal records. 

The Opposition’s request for the inquiry could have been put to the Attorney General. 

Judge reprimands leaks

Mr Justice Abela reserved some very strong comments for the media and those who leaked criminal records that were meant to be secret. 

It was not right for such documents related to criminal proceedings to be leaked and published, triggering comments on social media by people with “an agenda", he said.

Whoever divulged such sensitive and confidential court documents was liable to “very harsh” prosecution. 

“And this court is amazed by the fact that to date whoever is responsible for such illegal airing of court documents has not yet been tracked down,” stated Mr Justice Abela. 

The law speaks very clearly on the matter.

The records of criminal proceedings cannot be made available to anyone except to the parties and their lawyers, or under special permission by the Attorney General.

The relative provision of law is meant specifically for criminal records to be used with circumspection, especially if those records concern third-party rights. 

Such illegal divulging by the media is prejudicial not only to third-party rights but could also prejudice the entire criminal process, sparking issues about pre-trial publicity. 

“Whoever thinks that by divulging this information is rendering a service to the parties and the nation, has no idea what disservice they’re doing,” remarked the judge as the hearing drew to an end. 

'Whatever is not in the records of the case, does not exist'

Opposition lawyer Edward DeBono minuted that the court still had the faculty to take judicial recognition of all court acts, both civil and criminal, exhibited within the courts by the AG, the police as well as third parties. 

Judge Abela pointed out that judicial recognition was a term that applied to information in the public domain. 

Asked to cite the relative provision of law, if any, DeBono noted further that any member of the judiciary functioning within the courts had a right to refer to all records presented in court by whoever. 

But State Advocate lawyer Julian Farrugia disagreed, quoting a legal principle that “whatever is not in the records of the case, does not exist”.

The government had no objection to the Opposition’s stance on this matter too. 

With all parties having no further evidence to put forward, the court deferred the case for written submissions by the Opposition. 

The case continues on May 27. 

Lawyers Edward Debono and Nicholas Debono are assisting the applicants.

Lawyers Chris Cilia, Ian Borg and Maurizio Cordina are assisting the intervening party.

Lawyer Julian Farrugia is representing the State Advocate as respondent.

'Government using State Advocate'

In a reaction on Wednesday afternoon, PN leader Bernard Grech said the Prime Minister was using the State Advocate to object to the publication of the inquiry. 

"This confirms how Robert Abela says one thing and does the opposite. If Abela really agrees with publishing the inquiry as he said he does, he would just publish it, considering he has had a copy for a while.

"Secondly, if Abela agrees with the PN that the inquiry should be published, he would not have used the State Advocatet to object to the PN's request."