The self-confessed middleman in the murder of journalist Daphne Caruana Galizia has refused to testify in court about a phantom government job he was given five months before the assassination.
Melvin Theuma appeared in court as a witness in the case against five people including former OPM chief Keith Schembri and businessman Yorgen Fenech, who is awaiting trial for complicity in the murder case.
However defence lawyers questioned whether the presidential pardon Theuma was given in connection to the murder also covers the case being heard on Friday.
After three hours of waiting in court, Theuma took to the stand and said: "I choose not to testify".
His decision prompted the defence to call for the withdrawal of Theuma's entire testimony given previously as part of a magisterial inquiry, a move that legal experts say could cause the collapse of the entire case.
Magistrate Monica Vella will next week make her decision on whether to withdraw his evidence from the case.
Schembri, Fenech and their three co-accused deny charges of theft and misappropriation.
The charges relate to a job given to Theuma by Schembri with the State-owned Housing Maintenance and Embellishment Co Ltd in May 2017.
Theuma claims he was paid for the job despite never turning up to work.
Three former government officials also stand accused of theft and misappropriation. They are Sandro Craus, the former head of customer care at the Office of the Prime Minister; Anthony Mario Ellul, the ex-family ministry private secretary and Anthony Muscat, the former CEO of a government company. They also deny the charges.
Inspectors Nicholas Vella and Brian Paul Camilleri prosecuted. Lawyer Stefano Filletti assisted Muscat. Vince Micallef and Ryan Ellul assisted Ellul.
Michael and Lucio Sciriha assisted Craus. Edward Gatt and Mark Vassallo assisted Schembri. Gianluca Caruana Curran and Charles Mercieca assisted Fenech. Matthew Brincat assisted Theuma.
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Case adjourned
2.15pm After some further legal argument, the magistrate adjourns the case for a decree on October 11 at 1pm. Thank you for joining us.
Debate over testimony
2.10pm The prosecution argues that Theuma's testimony cannot be removed at this stage in proceedings, ie at the prima facie stage.
The defence argues again that because Theuma came to court but chose not to testify, his testimony cannot be allowed.
Court resumes
2.05pm We're back. The magistrate takes her seat and asks everyone else to do the same.
Could the case fall apart?
12.46pm What's happening in court today is a potentially very serious development. If the magistrate decides that Melvin Theuma's testimony is to be removed, legal experts say the whole case could fall apart. Theuma's testimony is central to the allegations of theft and misappropriation facing Keith Schembri, Yorgen Fenech, Sandro Craus, Anthony Ellul and Anthony Muscat. We'll have to wait and see.
Sitting suspended until 2pm
12.15pm The magistrate orders that the witness is kept under surveillance so that in the coming hours he does not communicate with anyone until 2pm allowing the prosecution time to consult accordingly. The sitting is suspended until 2pm. Theuma must remain under police surveillance until then and must speak to no one else.
30-day deadline
12.12pm The magistrate notes that the proceedings must be taken to prima facie stage within 30 days.
'After some Godfather intervenes'
12.09pm The defence wants Melvin Theuma to be kept apart from the other witnesses until the matter is decided.
"Perhaps we might come back next time and he might change his mind... after some Godfather (parrinu) intervenes," Gatt remarks.
Defence wants Theuma's statements withdrawn
12.05pm The defence lawyers aren't done yet. Gatt, for Keith Schembri, asks that all Theuma’s statements in the records of the case be withdrawn.
"Once he chose not to testify, the defence now has been deprived of the right to cross-examination and moreover, all this case is built on the testimony of a witness who now chose not to testify," Gatt says.
The magistrate asks for a response from the prosecution.
"We need time for a reply," the inspector says.
'I choose not to testify'
12pm With a one-liner, "I choose not to testify", Theuma replies, steps down from the stand and walks out.
He’s been in court for three hours and has uttered five words, before leaving again.
Theuma called back in
11.58am The magistrate decides that Melvin Theuma can testify under caution. He reenters the room, returns to the stand and the magistrate warns him that he has the right not to testify.
Who gave legal advice?
11.52am The plethora of defence lawyers in this case continue to question whether Theuma's presidential pardon, granted in exchange for his testimony in the Daphne Caruana Galizia murder case, covers this case too.
Keith Schembri's lawyer Edward Gatt has a question for the inspector.
He wants to know if those who gave the inspector the legal advice that the pardon covers the case were present when Theuma was interviewed.
"No, we consulted them after".
The inspector says former superintendent Frank Anthony Tabone, deputy police chief Alexandra Mamo and the Attorney General all provided legal advice about the validity of the pardon.
'Exhibit the pardon'
11.45am Filletti, lawyer for Anthony Muscat, says that the defence expects an objective clarification on whether Theuma's pardon covers the charges. The defence cannot simply rely on the officer's word, especially when possible charges could lead to jail. "The only way of determining this once and for all is for that pardon to be exhibited," he argues.
Yorgen Fenech's lawyer Charles Mercieca steps in. "We have a copy of the pardon through other separate proceedings and it does not cover the charges in this case," he argues.
Does the pardon cover the crime?
11.39am The magistrate asks: does the prosecution not know whether there is a pardon covering this crime?
Inspector Vella says that the existence of the pardon is known but if it is to be exhibited there must be special authorisation.
The magistrate presses: "Do you mean to say that you pressed charges without first confirming that your main witness is covered by a pardon regarding this particular case?"
Inspector Vella says that police sought advice from superiors and legal advice too and there is an understanding that the presidential pardon Theuma has received covers this case too.
Shouldn't Theuma face charges too?
11.28am Defence lawyer Mercieca starts by asking why Theuma himself has not been interviewed under caution. He says he took a phantom job. He received criminal proceeds and that may land him with charges of money laundering, the lawyer argues.
Anthony Muscat's lawyer, Stefano Filletti, also intervenes. "If my client allegedly gave him funds, Theuma is co-perpetrator, not accomplice. And if Theuma deposited those monies at the bank, that would be money laundering."
He asks why Theuma was allowed to make self-incriminating statements? Filletti says the pardon Theuma has been given (in exchange for his testimony in the Daphne Caruana Galizia murder case) does not cover this.
While this discussion is happening Theuma is asked to go outside.
Melvin Theuma enters
11.26am Melvin Theuma takes the stand. He will be cross-examined by Gianluca Caruana Curran and Charles Mercieca, who are representing Yorgen Fenech.
'Please call the witness in'
11.21am We're back. Magistrate Monica Vella has come to her decision. She says that the defence is only asking to cross-examine a witness who has already testified at a magisterial inquiry. If the defence does not have the right to cross-examine, how can it contest the charges? So the defence’s request is upheld. "Please call the witness in," the magistrate says.
15-minute break
10.35am Now's the time to grab a mid-morning coffee. After further legal arguments, the magistrate has suspended the sitting until she comes to a decision on this. Will Melvin Theuma testify today or not? That is the question.
Prosecution objects
10.28am The inspector clarifies his position. He says that the criminal code is clear: a person who testified at a magisterial inquiry cannot be produced as a witness in court before prima facie.
[At prima facie stage, the court makes an assessment as to whether there is enough evidence for proceedings to continue and the accused to face trial on indictment.]
Cross-examination cannot take place before the person testifies. Therefore Theuma cannot be summoned to testify under cross-examination, save for exceptions stated in the article of law, the inspector argues.
The prosecution is therefore objecting to the request for Theuma to testify.
'This case is no case'
10.24am The legal arguments continue over whether Theuma should be cross-examined today. This request, by Yorgen Fenech's legal team, is noted by the magistrate but no decision is made.
The inspector confirms to the magistrate that the testimonies already given in the magisterial inquiry are enough to proceed at this stage.
He argues that the correct procedure wasn't followed here, in that the witness should be summoned two days before the hearing.
"He's here. He's outside. We sent you an email two days ago and you said no," Fenech's defence lawyer, Charles Mercieca responds.
When the inspector says that a person who testified at a magisterial inquiry cannot testify again in court, a chorus of defence lawyers shoots the argument down.
"You're making a total mess [pudina]," Gatt responds. "This case is no case and these people (the accused)are all here for nothing."
Will Theuma testify today?
10.06am Inspector Vella tells the magistrate that the prosecution was yesterday asked by the defence to summon Melvin Theuma. Defence lawyer Charles Mercieca insists that this goes ahead. The court is still to decide whether to uphold that request, to hear Theuma.
The defence want to cross-examine Theuma but the Attorney General is objecting.
Economic crimes
9.59am Another police officer takes the stand now: Brian Paul Camilleri, an inspector with the economic crimes unit.
He says that he learned about the case through testimony in separate proceedings. That same day they spoke to Theuma. Theuma said that before the 2017 elections Fenech had called Theuma telling him of the call from Craus.
He repeats the same version as his colleague, adding that Schembri had given Theuma a tour of Castille, offered a coffee and they posed for a photo together.
Theuma had gone to a ministry that he was directed to attend for an interview. The inspector repeats the details we have just heard about the cheques.
Searches were carried out at HME Ltd, electronic equipment was seized and Anthony Muscat was arrested, and some people were spoken to.
There were discrepancies and suspicions about how Theuma was given the job. Police discussed with their superiors and also sought legal advice before pressing charges.
Sandro Craus, ex head of customer care at the Office of the Prime Minister, appearing in a previous hearing, wearing a mask. Photo: Matthew MirabelliArrest warrant
9.55am The inspector continues. Theuma told police he never reported for the job as a messenger driver but received pay cheques. He got a cheque and then two more. When the fourth cheque did not turn up, he called Muscat and Fenech. The cheque was subsequently issued but no more cheques followed.
Search warrants were issued against Housing Maintenance and Embellishment Co Ltd and an arrest warrant was issued for Anthony Muscat. Electronic equipment was seized and a magisterial inquiry began. Finally charges were issued against the accused.
Theuma's version
9.47am All five accused are here, along with their lawyers. Yorgen Fenech is under escort, seated behind the other four accused.
Inspector Nicholas Vella inspector sets the ball rolling, asking the court to direct who is to testify first.
The inspector describes how Theuma had testified in a previous case that he was given a job with government and never reported to work. In December 2019 police took his statement.
He told police that he had got a call from Fenech that Sandro Craus was to call him about work. Craus did call and told him about an appointment at Castile. He went and met Craus and Keith Schembri. They directed him to a nearby ministry for the job. There he met Anthony Muscat who directed him to Jobsplus to register for the job. That was Theuma’s version confirmed by police with Jobsplus.
Keith Schembri and Melvin Theuma pictured together at Castille, the office of the prime minister.Keith Schembri arrives in court
9.36am Keith Schembri has arrived along with his lawyer, Edward Gatt. Melvin Theuma is also inside as we wait for the case to begin.
Keith Schembri arrives with his lawyer Edward Gatt. Photo: Jonathan Borg