Attorney General silent on failure to appeal ruling on Robert Agius (Tal-Maksar)

Attorney General Victoria Buttigieg has persistently ignored questions on why her office failed to appeal against the acquittal of Robert Agius (one of the two ‘Tal-Maksar’ brothers) on a charge of “association” in heroin trafficking.

Agius has been named by Vince Muscat, one of the hitmen involved in Daphne Caruana Galizia’s murder, as the alleged supplier of the bomb that killed the journalist. This was also separately mentioned in the testimony of self-confessed middleman Melvin Theuma.

The Times of Malta and Malta Today jointly reported on 18 October that police sources named the brothers Robert and Adrian Agius as leaders of an organised crime group, while the Investigative Reporting Project Italy (IRPI) reported on the same day on links between the brothers and foreign organised crime clans.

The brothers were among the 10 men arrested by police two months after the journalist’s death, but they were later released without charge.

In the heroin case, a woman named Nadia Rapinett – referred to as an “exploited drug mule” by Judge Edwina Grima – was imprisoned for 18 months while Robert Agius got a mere €500 fine for possession of a bullet.

He was acquitted of the graver charge of “association” in heroin trafficking because Rapinett could not be compelled to testify at the time. Rapinett’s testimony was pivotal to the charge of “association” against Agius.

Contrary to newspaper reports that held that Rapinett “refused to testify” – no one can really refuse to testify – throughout the proceedings, Rapinett had instead been what is defined as a “competent” but not a “compellable” witness. The court could not compel her to testify so as not to incriminate herself in her own separate proceedings.

Although she had already given sworn testimony during a magisterial inquiry into the drug bust, the court discarded that evidence on the basis of case law that required Rapinett to testify again “viva voce” and, more importantly, to allow the defence a chance to cross-examine her.

Rapinett’s case was then finally resolved, after dragging on for eight years, on 8 January, when Judge Edwina Grima reduced her sentence on appeal from three years to 18 months’ imprisonment. Grima concluded that Rapinett was “simply a drug mule exploited at a time when she had financial problems”.

Magistrate Neville Camilleri then delivered the sentence in Agius’ case five months later, on 25 June, acquitting him on the drug trafficking charge.

This means that Rapinett could have been compelled to testify if the Attorney General had appealed the case against Agius.

Legal sources consulted by The Shift said the law is clear on this point, specifying that new witnesses could be summoned on appeal if those witnesses “could not, with the means provided by law, have [been] produced before the inferior court”.

A police spokesperson initially told The Shift that “such appeals are filed by the Attorney General’s office and not the police”. Yet an additional question on whether the police had filed a note of appeal within four days, as required by law, was not answered at the time of writing.

The law specifies that if the police prosecute, as in this case, they have to file a note within four days of delivery of the sentence to enable the Attorney General to appeal. It is not known whether the note has been filed in this case.

At the time, the Attorney General’s office was led by Peter Grech, and the legal time term permitted for an appeal to be filed elapsed before Buttigieg was appointed as the chief prosecutor. She has been part of the Attorney General’s office since 2007.

The new Attorney General, Buttigieg, did not reply to repeated questions, including why her office failed to appeal against Agius’ sentence. On one occasion, when contacted on the phone, Buttigieg’s secretary suggested that The Shift makes enquiries to the court instead.

Police sources are reported to have told The Times of Malta and Malta Today last month that they asked for Europol’s assistance in 2019 in a quest to gather prosecutable evidence on the Agius brothers, whom they described as “high value targets.”

Yet the failure to appeal against Agius’ acquittal last summer saw him walk free in the heroin trafficking case while the drug mule was imprisoned.