Issue link: https://maltatoday.uberflip.com/i/1533342
9 NEWS maltatoday | SUNDAY • 16 MARCH 2025 to testify weakens prosecution's hand son's report if he does not testify. The next step would be to ask for the report to be expunged from the acts of the case. If the situation persists, the judge may have no other option. "The judge will have no option but to expunge Harbinson's re- port from the acts of the case unless the defence is given the opportunity to question him, and her decision will impact the com- pilation of evidence proceedings in the magisterial court as well," a lawyer close to one of the defend- ants, who requested anonymity to be able to discuss the issue freely, told MaltaToday. The lawyer added the judge may take the extreme measure of or- dering an international arrest war- rant be issued for Harbinson. This would prolong proceedings. "In his affidavit, Harbinson said that his report was only meant to be a preliminary report and that it made no mention of criminal charges and freezing orders; so even if he is brought to testify un- der arrest, he may still refuse to play ball," the lawyer said. Refusal to testify is a criminal of- fence, and if found guilty Harbin- son could be liable to a fine and imprisonment for a maximum of three months. If it comes to this, the prosecution's case would have been seriously weakened. Uncharted territory A second lawyer unconnected to the Vitals case and with 30 years' experience said Harbinson's re- fusal to testify is unprecedented. "We are in uncharted territory. I have never come across an in- stance where a court expert has refused to testify but the court has wide powers to ensure he does take the witness stand," the lawyer told MaltaToday. He said it may be too early to argue that the criminal case has been fatally undermined but in- sisted any decision to expunge the report or parts of it will un- doubtedly weaken the prosecu- tion's hand. "If the case reaches the point where Harbinson's report is to be expunged, the prosecution could argue for his conclusions and observations only to be removed and not the data on which they were based but nonetheless this will still weaken the prosecution's case," the lawyer said. The Vitals case rocked the polit- ical establishment in light of the high-profile people who ended up in the dock. It is the first time that a former prime minister has been charged criminally. A flagship project The Vitals hospitals concession was a flagship project of the first Muscat administration. It saw three public hospitals – St Luke's, Gozo General and Karin Grech – being transferred on concession to the obscure company Vitals Global Healthcare in 2015 when Konrad Mizzi was health minis- ter. The National Audit Office had concluded there was "collusion" between government representa- tives and the VGH shareholders when the concession was award- ed. The company had produced a sanction letter from the Bank of India as proof of finance, which was issued even before the gov- ernment had published the re- quest for proposals. When VGH failed to deliver on its contractual obligations, the concession was transferred to American company Steward Health Care in 2018. The transi- tion to Steward happened when Chris Fearne was health minister but contractual arrangements re- lated to the concession continued to be handled by Mizzi. The NAO had described this ar- rangement as an "unorthodox dy- namic" since it deprived Fearne of the ability to negotiate with Stew- ard. At one point, Steward's CEO, Armin Ernst, had asked Keith Schembri whether he should share information with Fearne. Throughout the period, Steward failed to deliver on major contrac- tual milestones as it tried to ne- gotiate a more generous package with government. Significantly, in August 2019, Mizzi had agreed with Steward behind Cabinet's back that if the contract is can- celled by the courts, government would be liable to pay the compa- ny €100 million. The backdrop to this side agreement was an ongo- ing court battle initiated by then Opposition leader Adrian Delia to have the hospitals contract re- scinded. During the same period Ernst had ordered the creation of a fund with Swiss company Accutor to support "political and govern- ment activities and interactions". The magisterial inquiry that was initiated by Repubblika last year revealed that Muscat had received payments from Accu- tor for consultancy work he did after stepping down from prime minister. Muscat has claimed the payments are accounted for and were unconnected to any Maltese project. Eventually, the Civil Court an- nulled the hospitals concession, pointing out that the deal was fraudulent and that top people in government were complicit. The court ordered that the hospitals be returned to government. The magisterial inquiry was con- cluded last year and recommend- ed that criminal charges should be brought against several people and companies involved in the Vi- tals deal. The police and the Attorney General took the inquiry's find- ings lock, stock and barrel without carrying out further investigations and interrogations, and charged all people indicated by the magis- trate. The compilation of evidence in all cases is ongoing. Keith Schembri and Konrad Mizzi