Yorgen Fenech’s lawyers said that Melvin Theuma had “lied repeatedly” and failed “to tell the whole truth” about the Daphne Caruana Galizia murder, yet police failed to investigate the self-confessed middleman for testifying falsely under oath.

Lawyers for the businessman, currently awaiting trial as an alleged accomplice in the 2017 murder, had filed challenge proceedings against the Police Commissioner, calling upon him to take criminal action against Theuma over his “half-truths” and “blatant lies” when testifying in relation to the journalist’s murder. 

Following his arrest in November 2019, Theuma was granted a presidential pardon to supply information obtained through his role as middleman in the assassination plot. 

However, after numerous trips by Theuma to the witness stand throughout the murder proceedings, Fenech’s lawyers claimed that the prosecution’s star witness had given false testimony both before the magistrate conducting the in genere inquiry as well as during the compilation of evidence. 

A year ago, Fenech’s lawyers filed a formal application, challenging the Police Commissioner to investigate and prosecute Theuma for taking a false oath and perjury. 

Theuma’s lawyers had soon reacted by filing a parallel application, calling upon the police authorities to prosecute Fenech for such calumnious accusations. 

One year later, as proceedings in Fenech’s challenge reached final stage, the parties made their last submissions in court. 

The issue at stake was whether the Police Commissioner was justified, on a prima facie basis, in not taking criminal action against Theuma, started off lawyer Charles Mercieca.

The purpose of the challenge was not to determine whether Theuma had testified falsely or not but whether the police should have acted in his regard. 

Such challenge proceedings served as a judicial oversight, a vetting exercise by the court where the police were to justify their lack of action.

Police accused of failing to investigate

And in Fenech’s case, the police had “not investigated anything” argued Mercieca, clarifying that they were focusing their claims on Theuma’s testimony before the inquiring magistrate. 

Theuma “repeatedly lied” about from where he was getting information about the murder, both in his testimony before then-inquiring magistrate Neville Camilleri as well as in the secret recordings where he gave a diametrically opposite version. 

Although they had attached those tapes to their criminal complaint, when filing the challenge, the Police Commissioner had hardly read that complaint, nor heard the recordings nor the testimony of Theuma before the inquiring magistrate. 

Moreover, police witnesses had said that they sought advice from the Attorney General.

Logic dictated that, at their meetings at the AG’s Office, the police were to take with them all relative documents and information.

But Superintendent Victor Aquilina had testified that during those advisory meetings the recordings were not played, and copies thereof and of Fenech’s criminal complaint were not given. 

“So how could the AG give advice on whether Theuma was to be investigated for false oath when all documents were not handed over and the Commissioner himself was not aware of the contents of the criminal complaint,” questioned Mercieca. 

The police were arguing that they refused to take criminal action because it was for the court to take relative measures if Theuma gave false testimony.

Moreover, that testimony was to be “filtered” at the trial and Theuma was still in a position to retract his testimony, the police argued. 

However, Fenech’s lawyers rebutted that the police “had nothing to wait for” since the offence of taking a false oath was committed as soon as the oath was administered and the witness testified falsely.

“Plain and simple,” stated Mercieca, citing jurisprudence to support his arguments as he went along.

Magistrate cannot act against witness for taking false oath

So, when Theuma testified before the inquiring magistrate, the police were to investigate if there was reasonable suspicion that he lied. 

“Retraction did not apply there,” argued the lawyer, adding that Theuma had knowingly left out facts and failed to give the whole truth. 

“We indicated all that in our application which the police commissioner didn’t even bother to read.”

Besides, the inquiring magistrate cannot, in terms of law, act against a witness for taking a false oath, Mercieca argued. 

“That was for the police to act but instead they did not do anything.”

The purpose of such challenge was for the court to review the police action and not to enter into the merits, countered Inspector Daryl Borg, who along with Superintendent Sandro Camilleri, was representing the Police Commissioner in court. 

This challenge cannot serve as a “fishing expedition” and neither can it bypass another court, Borg said, also citing case law.

Moreover, if there were any suspicions that Theuma had given false testimony, the court would have taken steps to have him investigated. 

“But no court flagged our attention to that nor directed the Police Commissioner to take some sort of action against Melvin Theuma,” said the inspector.

After hearing those submissions, the court, presided over by magistrate Nadine Lia, adjourned the case for judgment in February. 

Lawyers Gianluca Caruana Curran and Marion Camilleri were also counsel to Fenech.