A magistrate has turned down a request to refer Melvin Theuma’s testimony about a phantom job to a constitutional court. 

The request, filed by lawyers for defendants that include former OPM chief of staff Keith Schembri and murder accused Yorgen Fenech, sought to have statements that Theuma had made under oath about the phantom job struck from the case.

Defence lawyers argued that their inability to cross-examine Theuma, who refused to testify in the case, meant that their clients' right to a fair trial was breached. 

Theuma, a self-confessed middleman in the murder of journalist Daphne Caruana Galizia, had testified in separate proceedings that he had been given a phantom government job, five months before that assassination and after he had an audience with Schembri at Castille. 

Those claims led to the police pressing charges against five people, including Schembri and Fenech, in connection with the job given to Theuma. 

The others are 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 co-accused deny charges of theft and misappropriation.

But when asked to take the witness stand in the case, Theuma declined after he was cautioned by the court that he had the right to not answer self-incriminating questions. 

The caution raised doubts as to whether the presidential pardon given to him in connection with the Caruana Galizia murder case extended to him testifying about the phantom job.

Defence lawyers immediately pounced on Theuma’s decision and asked the court to have Theuma’s statements about the job withdrawn from the case records. 

Magistrate Vella decreed that the court did not have the authority to do so, as its job was purely to collect evidence. 

Both Schembri’s and Muscat’s lawyers then said that they were requesting a constitutional reference – a request that the court denied on Tuesday. 

The function of the court was to collect and preserve evidence, it said. Given that proceedings had not even reached the prima facie stage yet, the accused could not claim that their rights had been breached as no decisions concerning their rights had been taken yet, the court said. 

It acknowledged that it was “odious” that someone who could potentially evolve into a co-perpetrator – Theuma - has not been charged alongside the others, but said that was for the prosecution to decide. 

The magistrate’s decision means defendants would need need to file separate proceedings before the constitutional court concerning Theuma’s testimony, if they are to press ahead with their attempts to have it struck from the case records. 

The court is expected to deliver a prima facie decision on Wednesday. 

Inspectors Nicholas Vella and Brian Paul Camilleri are prosecuting.

Lawyers Vince Micallef and Ryan Ellul are assisting Ellul. Lawyers Michael and Lucio Sciriha and Roberto Spiteri are assisting Craus. Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri are assisting Fenech. Lawyers Edward Gatt and  Mark Vassallo are assisting Schembri. Lawyer Stefano Filletti is assisting Muscat.