Testimony given by Melvin Theuma during the magisterial inquiry about the phantom job he had been given five months before the Caruana Galizia assassination, is to be discarded in evidence in the case against five men allegedly involved in handing the murder middleman that job.
When proceedings continued on Thursday morning, the court turned down a request by the defence to remove Theuma’s testimony from the records of the case, pointing out that the ball was in the defence’s court to cross-examine witnesses, including Theuma.
Keith Schembri’s lawyer promptly suggested summoning Theuma on Thursday (today) so as to determine his position without further delay and this in view of the fact that when summoned previously, the star witness had refused to testify citing his right to avoid self-incrimination.
That request was upheld by Magistrate Monica Vella who ordered the prosecution to summon Theuma in the afternoon.
Theuma, smartly dressed in a dark blue suit and under escort by plainclothes officers, duly turned up, assisted by his lawyer Kathleen Calleja Grima.
Before taking his place at the witness stand, his lawyer informed the court that, at this stage, Theuma would not be testifying so as to avoid self-incrimination.
Both Schembri’s and Yorgen Fenech’s lawyers suggested that the court ought to caution the witness even though the prosecution had stated that, to date, no criminal action was to be taken against Theuma.
“For all intents and purposes,” the court explained to Theuma that anything he said on oath could be used as evidence for and against him.
Then came the questions, fired at the witness in successive rounds by each of the accused’s lawyers.
“What can you tell us about your involvement in this matter? Do you know all of the accused? Did you have any relationship with any of them? Were you employed by the government? Did you speak to the accused? Did you receive any money that you were not entitled to? Did you get any money for a government job? Did you testify about this case in the past? Can you confirm your past testimony,” started lawyer Stefano Filletti, firing questions rapidly.
“I choose not to answer,” came the standard reply, repeated over and over by Theuma.
“There were some inaccuracies in your testimony before the magisterial inquiry, even with respect to certain buildings mentioned,” intervened lawyer Michael Sciriha, assisting Sandro Craus.
But still, Theuma refused to answer.
“Can you confirm that at no time did you communicate with [Yorgen] Fenech about this case? That you never told him why you had gone to Castille? And that you went there for other reasons,” asked Fenech’s lawyer Charles Mercieca, taking over.
“I choose not to answer,” Theuma replied.
“Do you remember what you testified at the magisterial inquiry? Can you confirm that testimony today? Any reason why you are not replying,” asked Schembri’s lawyer Mark Vassallo.
“Do you know [Anthony] Ellul? Did you ever speak to him over the phone or personally? Did he ever sign cheques? During your interview for the job did you tell them that you never intended to report for work? Can you confirm your testimony before the inquiring magistrate,” asked lawyer Vince Micallef, assisting Ellul.
“I choose not to answer,” came the invariable reply.
“You may leave,” Magistrate Vella directed the silent witness, who exited the room after that brief appearance.
In light of the circumstances, Mercieca put forward a request that was taken up jointly by all the other defence lawyers.
They asked for Theuma’s testimony to be expunged (physically removed from the records of the case) since that testimony had not been controlled under cross-examination.
Mercieca cited jurisprudence to support that request, including a judgment by the European Court of Human Rights affirming the accused’s right to control testimonies given against him.
Prosecuting Inspector Nicholas Vella asked the defence to clarify what they meant by “expungement”.
After further legal discussion and another lengthy minute by Filletti, the prosecutor agreed that since Theuma’s testimony could not be controlled under cross-examination, it was not to be considered in evidence.
The prosecutor objected to having Theuma’s testimony physically removed but agreed that it was to be discarded as evidence against the five accused.
Asked by the defence, the magistrate pointed out that since both sides were in agreement on the matter, there was no need for a decree.
And with that final word, the case was deferred to July.