Court rejects appeals by defence, prosecution in Yorgen Fenech case

The Court of Criminal Appeal has rejected appeals filed by both defence and prosecution with regards to Yorgen Fenech’s preliminary pleas.

Both the Attorney General and Fenech’s lawyers had filed appeals against different aspects of the Criminal Court’s decision on the preliminary pleas, which had been handed down in December 2022 after Fenech’s indictment.

Dealing first with Fenech’s appeal, the Court of Criminal Appeal, presided by Chief Justice Mark Chetcuti, together with Mr. Justice Joseph R. Micallef and Mr. Justice Giovanni Grixti, disagreed with his assertion that the Court of Magistrates’ refusal to permit him to summon the Head of the Malta Security Service to testify about a number of phone taps and recordings and complete the cross-examination of several witnesses - amongst them the former Chief of Staff at the Office of the Prime Minister of the day, Keith Schembri, prejudiced his rights.

The remedy that Fenech was effectively requesting for this claimed injustice was that the bill of indictment against him be declared null, observed the judges. But after examining in minute detail every circumstance in which Fenech was alleging a refusal, “in every case it emerged that there had never been such a refusal by the compiling court.”

The Criminal Court was correct in assessing that the accused had made several requests to cross-examine witnesses, none of which had been denied.

The witnesses whose cross-examination Fenech claimed to have been denied had in fact exercised their right to silence to avoid incriminating themselves, one in view of ongoing criminal proceedings against him and the other due to a police investigation. The fact that no cross-examination had taken place did not render their evidence inadmissible because they would testify again at trial stage and could be cross-examined then, with the situation being explained to the jury by the presiding judge.

With regards to another ground of appeal which dealt with the AG’s failure to include one of the Interpol experts who had been appointed during the magisterial inquiry to examine a clone of Caruana Galizia’s phone and extract relevant data, the judges noted that Fenech was correct to state that the expert’s testimony had not been compiled. The Criminal Court had correctly ordered that he be called to testify before the compiling court.

The Attorney General had also filed an appeal, claiming that the Criminal Court’s order to expunge a number of the prosecution’s exhibits, among them a statement released to the police by Fenech at a time which he later claimed to have been under the influence of cocaine, had been legally incorrect. Fenech had been assisted by his lawyers, noted the court. The statements in question had been made subject to the condition that they were to be used solely in connection with Fenech’s request for a Presidential pardon.

“The court fails to understand the Attorney General’s reasoning in this regard, more so when the first court had… upheld the plea not because the appellant was not in a good state because of the consumption of drugs, but because the statements had not been taken in conformity with the dispositions of the law.”

Both appeals were rejected in their entirety, with the exception of the addition of the Interpol witness who must now testify before the re-opened compilation of evidence.