The prosecutor and the defence counsel in a drug trafficking case yesterday took the witness stand in a highly unusual move to tell of backroom discussions which led to an informal plea bargain.

Dr Mark Said and Dr Emmanuel Mallia took the witness stand, at the request of the Attorney General, in the case against two judges charged with accepting bribes.

They detailed their talks in the run-up to the judgment handed down by the Criminal Court in the Mario Camilleri drug trafficking case in 2001 and the follow-up consequences on appeal.

Both lawyers said they were stunned when the Criminal Court set the punishment for drug trafficking at 16 years because they had been talking of a minimum of 10 years and a maximum of 12 years, according to Dr Mallia, and 14 years, according to Dr Said.

They testified before Magistrate Tonio Micallef Trigona in the compilation of evidence against former chief justice Noel Arrigo, 52, of Siggiewi and Judge Patrick Vella, 58, of San Pawl tat-Targa, after a request was filed by the Attorney General.

The judges, who have resigned, are pleading not guilty to two counts of bribery and one of revealing official secrets in connection with a judgment handed down by the Court of Criminal Appeal against drug trafficker Mario Camilleri on July 5.

The charges are aggravated by the fact that they were public officers duty bound to prevent crime.

Dr Mallia was the first to be called to the witness stand.

He explained that, with Dr Giannella Caruana Curran, he had been Mario Camilleri's lawyer in the drug trafficking case.

Dr Mallia said that at the time the concept of plea bargaining had already been a practice at the law courts. He and Dr Caruana Curran had expected to go to trial and had in fact already studied the case thoroughly when they were approached by the prosecutor and sounded out about the possibility of filing a guilty plea.

Dr Mallia said that a judgment by then Mr Justice Vincent DeGaetano had laid down that an early guilty plea merited a reduction in punishment of between one-fourth and one-fifth of the sentence.

In this case, discussions took place with the understanding that the punishment would be between 10 and 12 years and in any case not more than 12 years, and Dr Said had assured them that he would take this stand when making submissions before the Criminal Court.

The prosecution had also agreed to withdraw a money laundering charge and a relapsing charge if the defendant filed a guilty plea.

The case went before the court and Camilleri filed a guilty plea. Dr Mallia said that he and Dr Caruana Curran had obviously reported back to the client the discussions they had had with Dr Said but said that those talks were protected by professional secrecy.

Dr Mallia said he had not gone to court when the sentence was handed down and Dr Caruana Curran had gone in his place and she had called him to inform him that punishment had been set at 16 years.

Both of them were stunned and their client was quite angry with them and had made a scene during which he had accused them of misleading him.

Dr Mallia said they were quite angry at the way things had turned out and he had spoken to Dr Said about it.

Dr Said had told him that there was nothing much he could do at that stage and that he too had been shocked at the outcome. He had however promised to explain the background of the case to the appeal court when the case went to appeal.

Dr Mallia said he had also sought to see Mr Justice DeGaetano (since appointed chief justice) about the matter and he had spoken to him in the presence of his deputy registrar. The judge had told him he had felt that those were the parameters for punishment in cases like this.

The lawyer said that Camilleri's appeal had in fact been based on this argument. He explained that although the amendment to the Criminal Code which would introduce plea bargaining had not yet come into effect, it had already become the practice.

When the case went to appeal, Dr Mallia said he had insisted with Dr Said that the appeal court should be informed of the background to the case and he repeatedly asked him whether he had spoken to the court.

He had eventually told then Chief Justice Noel Arrigo (who has since resigned) that they, that is, he and the prosecutor, wished to speak to him about the case.

Dr Mallia explained that the correct manner to speak to a judge was either through his deputy registrar or in the presence of the registrar and he had in fact asked the deputy registrar for a meeting.

The chief justice had sent word that he could not see him right then but that he would be happy to see them at 11 a.m. This was a few days before judgment was handed down.

Dr Mallia said he had no idea whether Dr Said would be able to make the meeting but he found him there when he went at 11 a.m. and they waited outside the chambers until they were called in.

When they went in, they explained why they had asked to see the chief justice and explained what had happened before the first court had handed down judgment and how they had had discussions with a view to striking a bargain.

Dr Said had mentioned before the chief justice that he had been under some pressure to obtain a guilty plea. He had also confirmed that the parameters for punishment had been set at 10 to 12 years but Dr Said had said that the maximum punishment they had envisaged was 14 years.

Dr Mallia said he had disagreed with Dr Said and insisted that their discussions before the first court judgment had assumed a maximum punishment of not more than 12 years and that he was still under the impression that this was the case.

Chief Justice Arrigo had then asked them to stop there because he wished the other judges to be present and had tried to contact them to ask them to attend the meeting.

Dr Mallia said Mr Justice Vella had arrived some time later and they had repeated everything in his presence.

When they had finished stating the facts, the judges had thanked them and they had left. No comments were passed.

A few days later he had gone to court and he had learnt of the reduction in punishment when the judgment was handed down.

Dr Said followed Dr Mallia to the witness stand and said he had been approached by the defence lawyers about the possibility of a guilty plea being filed. There were several meetings in which the matter was discussed.

He had considered the case to see how far he could go and had taken a decision to drop the money laundering charge because he really did not think there was sufficient proof to back it up and the amount in question was not that much, something between Lm3,000 and Lm5,000.

He had also decided to drop the relapsing charge and this was not a question of conscience because there was simply no evidence to back it.

In the meantime, the case had been appointed for trial and he was giving the judge in the Criminal Court feedback through his deputy registrar.

The judge, then Mr Justice DeGaetano, had wanted to know whether to expect a trial or whether the defendant was going to file a guilty plea and there was thus an element of pressure in the sense that he needed to give him an answer.

Dr Said said he and Dr Mallia had carried out a bench marking exercise and he had given his word that if a guilty plea was filed he would argue for a jail term of not less than 10 years and not more than 14 years. This was the stand he was prepared to take.

Meanwhile, the case was brought forward and the new date came as something of a surprise to both him and Dr Mallia.

None of them could, in fact, attend the sitting, and although a guilty plea was filed, submissions on punishment were made on another date.

Submissions were made by Dr Stephen Tonna Lowell for the prosecution because he again could not be personally present for the sitting and judgment was eventually handed down.

When Dr Tonna Lowell had informed him that punishment had been set at a 16-year jail term they had both spontaneously expressed a natural reaction of astonishment.

Dr Mallia had also spoken to him and expressed his anger at the way things had turned out.

He had asked him whether it would be a problem for him if he mentioned their backroom discussions before the appeal court and he had told Dr Mallia that the reality was that the discussions had taken place and he had no problem with the truth being told.

When submissions were made before the appeal court, he had expected Dr Mallia to mention the matter but he had not. After submissions, Dr Mallia had asked him to speak to the court about what had taken place before the judgment of the first court was handed down. He had previously not asked him to do this but after submissions he became somewhat insistent on this point.

Dr Said said he had not felt it appropriate to raise the matter at that stage but Dr Mallia kept insisting and even pleaded with him to do this.

The next thing he knew, the deputy registrar at the appeal court had called him to attend a meeting in chambers and he had asked what it was about. The deputy registrar had given him an indication and he had told him that he did not feel the meeting should take place.

However, the deputy registrar's attitude was that a meeting had been called and he should attend it. At the meeting, Dr Mallia had explained what had previously taken place and he had agreed with most of what he said.

Dr Mallia had however mentioned the parameters of punishment as agreed between them as 10 to 12 years whereas he insisted he had said 10 to 14 years.

Dr Mallia seemed to take the stand that matters should be redressed on appeal and that the punishment should come as close as possible to that discussed before the Criminal Court judgment was handed down.

Dr Said said that they had simply put the judges in the picture and had left chambers without any sort of agreement taking place.

The case of George Spiteri was mentioned only in the context of a clarification because, while they were waiting for Mr Justice Vella to arrive, Chief Justice Arrigo seemed confused about Camilleri's identity and used Spiteri's nickname to refer to him.

The mix-up was clarified and the chief justice had then remarked that Spiteri's case was the one based completely on hearsay evidence and he commented that he did not know how Spiteri could have been found guilty.

When he and Dr Mallia had left chambers, Dr Mallia had asked him what he thought the outcome of the two cases would be and he had told him that it seemed that Spiteri would be acquitted whereas Camilleri's appeal would be dismissed.

A few days later, he and Dr Mallia had appeared in court for the judgment and while it was being read out, they had actually passed comments with Dr Mallia saying that it looked bad for his client and Dr Said had reminded him that he had told him so.

Dr Said explained that when they were following the judgment being read out, the logical conclusion to what they were hearing seemed to be a confirmation of the first court's judgment.

But things changed at the penultimate paragraph and the last paragraph set out the change in punishment. This came as a surprise to both of them. "We were baffled," Dr Said said.

The case continues.

Assistant Commissioner Michael Cassar and Superintendent Pierre Calleja are prosecuting.

Dr Joseph Giglio and Dr George Abela are representing Judge Arrigo while Dr Toni Abela, Dr Michael Sciriha and Dr George Cutajar are representing Judge Vella.