Vincent Muscat il-Koħħu is claiming that his fundamental rights were breached in proceedings where a judge has authorized his former co-accused Darren Debono, to testify against him over his alleged involvement in the 2010 HSBC attempted armed robbery.

By means of a constitutional application filed on the eve of another hearing where Debono is scheduled to take the witness stand, Muscat’s lawyers have set up a fresh challenge, claiming that his fundamental rights have been breached in more ways than one.

The whole issue originated from a last-minute admission by Debono on the eve when he was set to face trial alongside Muscat over the botched robbery.

That admission, following a plea deal with the Attorney General, changed Debono’s position from co-accused to prime witness for the prosecution who immediately requested his name to be added to the list of witnesses.

The move was objected to by Muscat’s defence.

But the case was sent to the Magistrates’ Court for Debono’s testimony to be compiled and the records sent back to the Criminal Court for trial.

However, matters took a complex twist when Debono declared, the minute he stepped onto the witness stand, that he would only testify against Muscat without mentioning any third parties, explaining that he feared for his own safety and that of his family.

That surprise statement ultimately led to Debono’s prosecution for refusing to testify, earning him a six-month effective jail term and a €4600 fine.

That punishment was subsequently halved on appeal over a legal technicality.

Faced with a second request by the AG to have Debono added as a witness, Muscat’s lawyers raised fresh arguments, insisting that since Debono was reluctant to tell the whole truth he could not be administered the oath and was therefore not a competent witness.

But Madam Justice Edwina Grima, presiding over the upcoming trial, turned down the defence’s arguments and sent the case once again to the Magistrates’ Court to compile Debono’s testimony.

A sitting held earlier this month was taken up by hours of legal wrangling and a final decree by Magistrate Monica Vella ordering Debono to testify at the next hearing set for tomorrow.

Muscat says judge misquoted legal arguments

Now Muscat’s lawyers are claiming that Madam Justice Grima had not only “totally ignored” their arguments but had “misinterpreted and misquoted” them, attributing to them “imaginary and false submissions” which they had never expressed.

The defence had never said that Debono was found guilty of perjury but had stated clearly that he was convicted for refusing to testify.

Whilst bowing down to court decisions, it was “unacceptable” for the judge to misquote the defence, argued Muscat’s lawyers, pointing out further that most of their submissions had been based on the judgment delivered against Debono by Mr Justice Aaron Bugeja on appeal after his refusal to tell the whole truth.

Such an attitude breached Muscat’s right to a fair hearing and amounted to inhuman and degrading punishment or treatment.

His rights were further breached through the procedure followed when assigning his case to Madam Justice Grima. 

Citing a recent judgment delivered against Yorgen Fenech about the selection of the judge presiding over the businessman’s trial, Muscat’s lawyers argued that the Justice Minister was never meant to intervene in the process.

The correct procedure set down by the Constitution was for the Chief Justice to recommend a particular judge who is then nominated by the President of Malta.

In this case, the assignment to Madam Justice Grima was “approved and signed as advised by the Minister for Justice and Governance…” along with the President’s signature.

Whilst the Chief Justice followed the correct procedure the rest of the process is all vitiated and in breach of the Constitution, Muscat's lawyers have argued, stressing that this too breached the accused’s fundamental rights.

Muscat asked the court to declare the breach and to provide adequate remedies as well as moral damages.

His lawyers also questioned why the judge had not abstained from presiding over the case when she had presided over another trial of Muscat as well as the compilation of evidence in the HSBC case when Debono was still a co-accused.

Lawyers Franco Debono and Roberto Montalto signed the application.