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A magistrate on Thursday afternoon ordered Darren Debono to testify in proceedings against Vince Muscat in relation to the attempted 2010 HSBC heist, rejecting objections by Muscat's lawyers. The testimony was set for May 18.

The decision followed a day of legal wrangling during which Muscat's  lawyers said that they were “very hurt” by a decree delivered by the Criminal Court last month stating that their objection to Debono as a witness was based on “mistaken premises.” 

Earlier this year Debono, known as It-Topo declared that he would not testify against third parties possibly involved in the 2010 attempted heist, but only against Muscat.

Debono had been due to face trial alongside Muscat but following a  last-minute plea deal with the Attorney General was to become the star prosecution witness. In terms of the plea bargain he was sentenced to 10 years and six months in jail for his role in the dramatic 2010 attempted hold-up at HSBC and agreed to give evidence against his co-accused, Vincent Muscat, known as il-Koħħu.

He made his announcement about refusing to testify against third parties during the compilation of evidence and was punished with a six-month effective jail term and a fine of €4600. The punishment was later halved over a technicality, but he refused to change his stance. 

When the Attorney General made a second attempt to have Debono’s name added to the witnesses’ list for the trial, Muscat's lawyers argued that since he was refusing to tell the whole truth, he could not be administered the oath and consequently he was not a competent witness. 

The oath bound a person to testify “the truth, the whole truth and nothing but the truth,” Muscat’s lawyers, Franco Debono and Roberto Montalto argued. 

The court turned down their arguments, stating that the fact that Debono was finding it difficult to answer certain questions, claiming that he feared for his own safety and that of his family, did not make him an inadmissible witness.  Madam Justice Edwina Grima directed the Attorney General to ensure that Debono was afforded all necessary protection.

When the case was due to resume before Magistrate Monica Vella on Thursday morning, Muscat’s lawyers filed an application requesting the court to send the records back to the Criminal Court so that they might ask Madam Justice Grima to revoke her previous decree and also seeking the judge’s recusal. 

Lawyer Franco Debono argued that the bone of contention was whether Darren Debono could be administered the oath once he had declared from the start and in open court that he would not tell the whole truth. Darren Debono did not stop half way through his testimony but declared before even starting that he would not name third parties. 

“And a half truth is worse than a lie.”

Revocation of the decree greenlighting Debono’s testimony, could only be sought before the same court which had issued it in the first place.  That was why the request had been made for the case to be sent back to Madam Justice Grima.

AG lawyer Anthony Vella rebutted that the Magistrates’ Court was not the appropriate forum to challenge that decree. The court presiding over the compilation of evidence was bound to hear the witness and only then could it send the records back to the Criminal Court.  

After hearing submissions, Magistrate Vella adjourned the case for a decree. She later ruled that Debono was to testify, and he was immediately called up from a cell he was being held in within the court building.

Muscat's lawyers said they were seeking a reference to the First Hall, Civil Court in its constitutional jurisdiction, because that decree spelt a clear breach of Muscat’s right to a fair hearing.  But the magistrate turned down the request, again ordering Debono to testify, leading to the lawyers raising further legal points of objection.

Lawyers representing Debono also said they would file a constitutional case for alleged breach of rights. Before he testified, it would be more opportune if this court waited for direction from superior court, the lawyers said. Was his right to silence to protect himself against self-incrimination conditioned by the criminal code? Every time he exercises that right, was he to be found criminally responsible?

No request by Darren Debono for police protection

Moreover Judge Grima had directed AG to provide for Debono's protection in terms of a witness protection programme.

The magistrate said she would expect the AG and police to have seen why Debono feared for the safety of his son and family. What steps have been taken to secure that protection?

Superintendent Fleri stepped in. He said the police had explained to Debono that he had to file a formal request for such protection. Yet he declined the suggestion twice.

Amid further arguments, the court told the parties that it is bound by a time limit that expires on May 25.

The magistrate later deferred the case to May 18 for Debono to testify and  cross examination. She also ordered the police to ensure that the witness and his family were granted protection in terms of law.

AG lawyer Francesco Refalo also prosecuted, together with superintendent Fabian Fleri and Inspector Joseph Mercieca. Lawyers Edward Gatt and Mark Vassallo are assisting Debono. 

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