Melvin Theuma’s refusal to face cross-examination in a case concerning a phantom job means that all his testimony linked to that case has been declared inadmissable. 

The court decision stemmed from a request filed by lawyers for Keith Schembri, Yorgen Fenech and three other individuals facing criminal prosecution over their alleged involvement in giving Theuma, who has confessed to being the middleman in the plot to murder journalist Daphne Caruana Galizia, a phantom job.

Theuma had testified in separate proceedings about how he had been given a government job five months before the journalist’s assassination. He had then been invited to an audience with Schembri, the former OPM chief of staff, at Castille.

Based on those claims, police pressed charges against Schembri as well as Fenech, now-awaiting trial as alleged accomplice in the murder, former head of customer care at OPM Sandro Craus, ex-family ministry private secretary Anthony Mario Ellul and former CEO of state-owned Housing Maintenance and Embellishment Co Ltd, Anthony Muscat.

All five are pleading not guilty to theft and misappropriation of public funds.

When summoned as a witness in the proceedings, Theuma refused to face cross-examination by the defendants’ lawyers.

He declined to answer any questions after he was cautioned by the court about his right not to answer any self-incriminating questions.

At that stage, doubts arose as to whether he was covered by a presidential pardon he was granted in connection with the Caruana Galizia murder case.

The situation persisted when Theuma was summoned back to the witness stand on other occasions, with the latest being in May last year.

His lawyer informed the court that at that stage, Theuma would not be testifying so as to avoid self-incrimination.

All questions put to him by the defence from then on were met with the standard reply, “I choose not to answer.”

Following that unfruitful testimony, the defendants’ lawyers jointly requested that Theuma’s previous testimony, including that at the magisterial inquiry, was  to be expunged (physically removed from the records of the case) since it had not been checked through cross-examination.

On that occasion, prosecuting Inspector Nicholas Vella objected to have that testimony “expunged” but agreed with the defence that it was to be discarded in evidence.

The court, presided over by magistrate Monica Vella, has now delivered a lengthy and detailed decree concluding that by refusing to face cross-examination, Theuma went against various legal principles, leaving the court with no alternative but to uphold the defence’s call for his testimony to be removed.

Theuma continued to refuse to testify even when the prosecution stated in open court that there was no plan to press criminal charges against him in relation to the phantom job.

There was no doubt that Theuma was not considered as a suspect and to date there appeared to have been no action against him, observed the court. Thus his refusal to testify was legally unfounded.

Delving into EU and local jurisprudence, Magistrate Vella declared that cross-examination was always a “sacrosanct right” of the defendant.

Theuma had a duty to testify, observed the court, noting further that his lawyer ought to have explained to the witness that there was no cause for him not to testify.

Prosecutors had also stated that their superiors had assured them that Theuma’s presidential pardon extended to this case.

They had, however, failed to present a copy of the pardon despite repeated requests by the defence. When asked whether he had seen the document, prosecuting Inspector Nicholas Vella first said that he never did and acted “on the instructions of his superiors.”

Pressed further by the defence and the court, he said, “I saw the pardon…No I don’t have access to it.”

To date, Theuma’s status in these proceedings remained unknown, remarked the court.

Both the defence and the court had no clue as to whether Theuma was covered by the pardon and thus immune to criminal action over the phantom job.

Theuma had “no reason to choose not to testify under cross-examination and the fact that he did so probably also breached the conditions of the pardon,” went on the court.

The prosecution “was and is to take note of this and take all necessary steps it deemed adequate and opportune.”

Since the court could not verify whether Theuma was covered by the pardon, any doubt went in favour of the accused.

Theuma’s refusal went against various legal principles including the defence’s right to cross-examination, equality of arms and full disclosure.

In light of such considerations the court had no alternative but to uphold the defendants’ request, declaring Theuma’s testimony as inadmissible.

The court ordered the removal of this testimony from the records of the case, including the records of the magisterial inquiry which formed part of the documents exhibited in evidence.

Lawyers Edward Gatt and Mark Vassallo are assisting Schembri.

Lawyers Charles Mercieca, Gianluca Caruana Curran and Marion Camilleri are assisting Fenech.

Lawyers Vince Micallef, Jacob Portelli and Ryan Ellul are assisting Ellul.

Lawyer Stefano Filletti is assisting Muscat.

Lawyers Michael Sciriha, Lucio Sciriha and Roberto Spiteri are assisting Craus.

Theuma was represented by lawyers Matthew Brincat and Kathleen Calleja Grima.