Admitting Daren Debono as a witness against his former alleged co-accused Vince Muscat, known as il-koħħu, at the upcoming trial over a failed HSBC heist, would possibly end in a serious miscarriage of justice, the court was told on Friday.

“The possibility of a miscarriage of justice is looming large,” argued defence lawyer Franco Debono when making submissions against a request by the Attorney General to have Debono, known as it-Topo, added to the list of prosecution witnesses at Muscat’s trial by jury. 

The strongly debated issue had first cropped up over a year ago on the very eve of the trial where both Muscat and Debono were due to stand accused over their alleged involvement in the attempted armed robbery at the HSBC headquarters in Qormi back in 2010.

But proceedings took an unexpected twist when Debono struck a plea bargain at the eleventh hour whereby the AG dropped attempted homicide charges against him in exchange for his testimony against Muscat. 

Debono was jailed for 10 years and six months and was fined €18,000 in terms of that plea deal. 

Following that conviction, the prosecution immediately asked for Debono’s name to be added as witness, but that request triggered a chain of events which resulted in an additional jail term and fine for Debono who proved unwilling to testify.

When summoned before Magistrate Monica Vella who was presiding over the compilation of evidence, Debono had no sooner stepped onto the witness stand than he declared that he would only testify against Muscat, without mentioning any third parties involved in the botched robbery. 

He claimed that he would not “risk the life of [his] wife and children”.

That reluctance to tell the whole truth as he was bound to do under oath, earned Debono fresh criminal charges and a six-month jail term and a €4,600 fine. 

The jail term was subsequently halved on appeal on the basis of a legal technicality since the accused could only be found guilty of a lesser form of relapsing. 

With that chapter closed, the AG once again requested the Criminal Court to authorise the prosecution to add Debono as witness at Muscat’s trial, prompting further objections by Muscat’s defence.

Not only was Debono interdicted under a previous judgment delivered in separate proceedings before the Magistrates’ Court, but his refusal to testify on oath, telling the whole truth in the HSBC case, raised various legal issues, argued Franco Debono when making submissions on Friday.

A competent and compellable witness must not only tell the truth but the whole truth.

Debono could not be selective and his intention was clear from the start.

By his own declaration before Magistrate Monica Vella, Debono “rendered himself inadmissible” as a witness, giving rise to a “sui generis” situation.

Could a person, who by his own admission showed that he was not prepared to respect an oath, be allowed to testify, argued the defence lawyer. 

“It’s a chicken and egg problem. Which comes first. Knowing that Debono will not respect the oath, can the court administer that oath?”

Since Debono’s refusal referred to a particular occasion, did that exclude him from being summoned again, intervened Madam Justice Edwina Grima who presided over Friday’s hearing as the judge to preside over the upcoming trial. 

“Yes it does,” replied the lawyer, explaining that the purpose of compilation proceedings was to collect evidence, leading up to the bill of indictment. 

The accused must not “face any surprises at the trial”.

If, in the worst case scenario, the court were to uphold the AG’s request, Muscat’s lawyers would call for the case to be sent back to the Magistrate compiling evidence for it-Topo to be summoned again. 

If he were to be admitted as witness straight at the trial, his demeanour would be assessed by jurors as judges of facts. 

But since Debono did not change his stance after being charged and convicted for refusing to tell the whole truth, it would be unlikely that he would do so in future. 

“And this is a miscarriage of justice of large proportions,” went on the lawyer. 

A witness who does not testify on oath may do so by making a solemn declaration, pointed out the court. 

But there again, the witness is still bound to tell the truth, the whole truth and nothing but the truth, promptly rebutted Debono, citing the relative provision of law. 

And if a court were to allow a witness to testify without binding himself, whether on oath or solemn declaration, then that would seriously impact the fundamental rights of the accused.

“These are the foundations of our justice system,” argued Debono, stressing that these were “fine legal arguments”.

Moreover, after “all the bravado” by the reluctant witness, he did not even try to retract his statement, intervened defence lawyer Roberto Montalto.

“He [Debono] could have turned back the clock by offering his testimony,” while proceedings were still pending at appeal, but he did not do so.

“Even that made him an incompetent witness before the courts,” concluded Montalto. 

AG lawyer Anthony Vella countered that there was nothing at law that made Debono inadmissible as witness, since he had been convicted and his sentence was final. 

No one could tell what Debono would do if summoned at the trial.

“We cannot assume that he will refuse to testify again. Nor can we assume that what he says is not true. That will be assessed by the jurors. If we do not summon him, we would be usurping the functions of jurors who are to assess his credibility.”

The court adjourned the case for later this month when a decree on the matter will be delivered.