Several experts yet to complete tasks in Caruana Galizia murder inquiry, court hears

Magistrate presiding over newly-reopened compilation of evidence against Yorgen Fenech observes in court two of the three tasks given to court experts by the magistrate leading the inquiry into the murder of Daphne Caruana Galizia have not been completed

Last updated on 28 November 2023, 3:08pm
by Matthew Agius

3 min read

Yorgen Fenech is being charged for allegedly masterminding the murder of Daphne Caruana Galizia

The magistrate presiding over the newly-reopened compilation of evidence against Yorgen Fenech observed in court that two of the three tasks given to court experts by the magistrate leading the inquiry into the murder of Daphne Caruana Galizia had not been completed.

Lawyers for Fenech, who is indicted and awaiting trial for allegedly bankrolling the journalist’s murder, had obtained an order from the Court of Criminal Appeal last month in terms of which the Court of Magistrates was to hear a number of prosecution witnesses who were listed to testify during Fenech’s trial, but who had not given evidence during the compilation of evidence.

Several witnesses took the witness stand today. The first cohort were court-appointed transcribers who had transcribed the audio-visual statements released to the police by Melvin Theuma, the self-confessed middleman in the murder plot, Johann Cremona -a business associate of Fenech’s in online gambling company Bestplay with links to both Fenech and Theuma - and the former OPM Chief of Staff, Keith Schembri.

Police inspector Charlot Casha, who had participated in a search of Keith Schembri's office at the Office of the Prime Minister in the Auberge de Castille in Valletta also testified on Tuesday. He had been instructed to download CCTV footage from the office.

Cross-examined by defence lawyer Charles Mercieca, the inspector confirmed that it had been the inquiring magistrate who had engaged him to search Schembri's office. Asked to state to the court who had been present for the search, the witness said Superintendent Keith Arnaud, Inspector Kurt Zahra and inspector Keith Vella, were present, together with Keith Schembri “and a certain Mario Galea."

He told the court that he had the impression that Galea was employed at the OPM, as he had unlocked the office doors for them.

A subaltern of Casha’s told the court about an email concerning papers that were allegedly sent by Keith Schembri to Yorgen Fenech. Mercieca asked the witness to exhibit a copy of a subsequent email sent by Superintendent Keith Arnaud, authorising him to scan the documents and send them to Europol. The witness replied that he no longer had a copy.

Half a dozen experts who were appointed to examine various mobile phones and electronic devices during the magisterial inquiry into the murder also testified today.

During the course of over two hours of cross-examination, it emerged that some of them had not fully completed the tasks they had been appointed to do. While data had been extracted from the devices, no data traffic analysis was carried out with respect to the exhibits.

One Europol expert explained that data traffic had to be captured in order to be analysed, and so there could be no data traffic capture in this case because the mobile phone in question - Daphne Caruana Galizia’s - was destroyed in the explosion.

But when asked by Mercieca whether data traffic analysis could, in theory, still be carried out, another expert witness replied that it was possible, as long as the data is not encrypted.

Magistrate Montebello noted that the tasks which had to be carried out, as decreed by the inquiring magistrate, were the collection of data traffic, the analysis of that data traffic, and data extraction, and that the first two of these tasks had not been completed.

The case will continue in December.

Lawyers Anthony Vella and Godwin Cini are prosecuting on behalf of the Office of the Attorney General. Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri are Fenech’s defence counsel.

13:40 That concludes today’s session. The case has been adjourned to 21 December. Thank you for following MaltaToday’s live blog. Matthew Farrugia

13:34 The sitting is over. Mercieca asks whether the court could summon the remaining witnesses before the next sitting before the Criminal Court in late December. Matthew Farrugia

13:34 The defence asked that Bajada be ordered to return these documents and if necessary testify about the tasks he had carried out. Matthew Farrugia

13:30 "They were presented and withdrawn at the same time," Mercieca told the court. Matthew Farrugia

13:29 Mercieca informs the court that the prosecution had asked court expert Martin Bajada to testify today, but he was unable to attend. There was a set of documents handed to Bajada during the inquiry which he did not believe had been returned to the court and so the defence had not been provided with a copy of these documents. Matthew Farrugia

13:28 The magistrate says that the tasks decreed by the inquiring magistrate were the collection of data traffic, the analysis of that data traffic, and data extraction, and that the first two of these tasks had not been completed. Matthew Farrugia

13:23 The witness says that of the colleagues who worked with him on the case, the only one still working at Europol is Harmoynen (one of the witnesses who have already testified today). Merceica asks whether in theory data traffic analysis can still be carried out. "Yes unless the data is encrypted." Mercieca says that he understands the decree as meaning that the data traffic analysis relates to the devices... The magistrate remarks that the decree is "unhappily worded." Arnaud tells the court that the understanding with the magistrate was that it was about data extraction. Matthew Farrugia

13:19 Mercieca asks the expert whether the reports he had presented in the inquiry all dealt with data extraction. "Not correct. My task was to acquire and extract data, not analyse them." He analysed mobile phones, SIM cards and other electronic devices. The witness did not recall whether he was given a copy of the decree appointing him, but said that every time he was in contact with his Maltese and Europol colleagues, he was never told to perform data traffic analysis. Magistrate asks whether there was any traffic to analyse. "I am not aware of that information." Matthew Farrugia

13:11 In a nutshell the expert is saying that data traffic is something you capture, so there can be no data traffic to capture, because the mobile phone in question was destroyed in the explosion. Matthew Farrugia

13:05 Merceica points out that this is a task that should have been carried out as part of the inquiry but this had not been done. The court reluctantly agrees. The next witness is another expert appointed during the magisterial inquiry, Sami Harmoynen. Answering a question by Mercieca, he says he had not carried out analysis of mobile data traffic. "No I have not conducted any data analysis on this case." Mercieca asks whether he would be able to do so now if given the exhibits. There was no data traffic at the time he was handed the exhibits because the devices were switched off, he explains. "Analysing mobile data traffic requires you to actually capture that data traffic so when the Maltese authorities handed over the exhibits to us they were shut down and it is impossible to capture data traffic." Matthew Farrugia

12:57 Over a very bad audio connection he said: "I don't remember by now what the tasks were ...I cannot really answer the question because I don't recall anything relating to data analysis." Mercieca asks whether if the witness were to be given the same exhibits , he would be able to conclude the task of technical analysis of data traffic. "Data traffic of what? It is a very broad definition. I can analyse the contents of the phone...on the phone itself." The court asked whether he still was in possession of any of the exhibits on which he had conducted analysis. Matthew Farrugia

12:54 Mercieca asks Tolli about the task he was appointed to do in the magisterial inquiry. The witness confirms that he performed data extraction from mobile devices. Did he perform the second part of his task- analysis of data traffic. "I did not." Asked why, he said it had been conducted by someone else. "I do not know who or whether it had been done," he says. Mercieca asks whether he is in a position to complete the tasks he had been given in 2017. Matthew Farrugia

12:51 Next witness is Marco Tolli. Fenech laughs silently in the dock as the witness appears to misunderstand the court's questions relating to his identification. Matthew Farrugia

12:47 Mercieca points out that the defence had already made this request in 2018, long before the Bill of Indictment was issued. "We are talking about evidence which is relevant to the facts at issue. The victim's mobile phone. It should have been amongst the first evidence to be exhibited." Matthew Farrugia

12:45 Arnaud states, “to be fair with the witness, he was not asked to prepare about this report.” There is uncertainty as to whether he had presented his report to Europol or to the inquiry. He had never presented his report in the presence of Fenech. Magistrate remarks that it was therefore true that he had never physically exhibited his report in these proceedings. Matthew Farrugia

12:42 He says he remembered Martin Bajada had visited him to hand over the exhibits : a hard drive and a clone that was created of Caruana Galizia's phone, which was used to connect to cloud services and download connected services. Mercieca asks if and when he had concluded his analysis. "That was 2017, so many years ago. I don't really recall." He did not have notes. Court asks whether he confirms that he had concluded the devices. He did. In reply to a question from Mercieca, he could not recall who he had sent the report to, but that it should be in the Europol Forensic lab. Matthew Farrugia

12:39 Petrou says he had acquisition and extraction of data from mobile and computer devices. "I analysed the exact data and created reports on the data from this device. If this is communication data, yes." Merceica asks whether he had conducted any tasks for technical analysis of data traffic. "Data traffic no....I don't recall that at any point I had data traffic [data]." "Are there any remaining tasks in connection with the Caruana Galizia murder investigation?" "I don't recall that I was assigned a task. I have done all the tasks that I have been assigned. I don't know if other colleagues names were mentioned in the decree." Merceica asks whether he had completed the task of examining Caruana Galizia's phone and the virtual machine on which the blog was run. Matthew Farrugia

12:34 Mercieca asks whether he had conducted analysis of data traffic. The witness says he had not. "Are you aware that this was part of the task appointed by the inquiring magistrate?" He says he had not. The court points out that he was not the only expert appointed to this task. Matthew Farrugia

12:32 Petrou replies that he did not have a copy to hand, but said he had exhibited them to the court. He is shown the report, page by page. Matthew Farrugia

12:28 Merceica explains that in 2017 Petrou had been given two particular jobs on the same date. He was to examine Caruana Galizia's mobile phone and another virtual machine. The Criminal Court's decree did not specify which. The court dictates a note that the page number indicated by the Criminal Court with regards to Petrou's task had been copied down badly and specified the correct page number. Prosecution and Defence agreed that the first task has not yet been completed and that he is to testify about the second task. Mercieca asks the witness about his roles: collecting mobile telephony electronic data, data traffic analysis and data extraction. Does his report contain information from the first and third roles? Matthew Farrugia

12:22 Magistrate Montebello returns. Matthew Farrugia

12:20 The lawyers continue to argue amongst themselves in the meanwhile. Arnaud tells the lawyer to make his request in the proper manner, before the Criminal Court, and not to try and ridicule the prosecution for the defence's mistakes While waiting in the courtroom for the magistrate to return from her chambers, the exchange appears to have all but petered out. Matthew Farrugia

12:18 Konstantinos Petrou testified from the Hague. He had been appointed by the inquiring magistrate in 2017. Arnaud has no questions, explaining that all these witnesses had already tendered their evidence before the inquiry, which is in the acts of the case. Mercieca begins his question, which appears to be about something different to what the court had been informed. Magistrate Montebello is furious, rebuking the lawyer Matthew Farrugia

12:16 She tells the prosecution to regularise their position with the Criminal Court about the necessity of Cutajar's testimony. Matthew Farrugia

12:07 Court begins dictating a note that both defence and prosecution did not ask for Cutajar's testimony, but is interrupted by the defence. Mercieca finds Cutajar's name amongst the list of the prosecution's witnesses. Arnaud says that in connection with the Caruana Galizia murder he had only testified as a representative of Transport Malta in connection with the registration of the sea vessel Giorgio. Magistrate Montebello notes that the witness was not provided with any indication as to what he was required to testify about in his summons. Matthew Farrugia

12:00 Dr. Gordon Cutajar takes the stand. He says he was not aware of what he was supposed to testify about. Mercieca says that the AG had requested him. Vella says that the witness was mentioned by the Criminal Court to testify at the request of the defence. The court says he was not mentioned in that sentence, but was mentioned in the decree of 3 December by the Criminal Court, which meant that the magistrate was not able to identify whether the defence or prosecution had requested his testimony. Arnaud says he had been engaged to investigate the ownership of certain vessels, but had not been asked to testify. Mercieca says Cutajar, from the Transport Malta shipping directorate, was indicated on the witness list by the prosecution. He had assisted the inquiry into Melvin Theuma's illegal lotto. The lawyers squabble over his status. Matthew Farrugia

11:56 "Do I understand correctly that you were never asked to testify during the compilation?" "No, [but I did] during the inquiry." Mercieca asks that the CD that Tanti had exhibited in the inquiry be exhibited in the acts of the compilation of evidence as they were relevant to the defence. Matthew Farrugia

11:54 Tanti hands over another complete copy of the report, bar the CD, to Magistrate Montebello. Tanti had been part of a group of 8 experts who were allocated a set of phone numbers to analyse. He had examined the call profiles of two numbers, belonging to MIguel Caruana and Sandro Cilia. Calls and SMS sent and recieved by their numbers were examined. 15 phone numbers were linked to Cilia, he said. Mercieca asked when he had finished. April 2021 and August 2022, he replies Matthew Farrugia

11:48 The next witness is Legal Procurator Quentin Tanti, a court-appointed expert. His first appointment with regards to this case was in May 2018 to analyse call profiles and call logs of several people, which he had completed and presented to the inquiring magistrate, he says. He was later reappointed to continue this work with respect to other evidence, which he had also completed and presented his report in 2021. A CD of the relevant data had also been attached to the original report, he said. The reports had been handed over directly to the inquiring magistrate, he said. Matthew Farrugia

11:45 Anthony Vella asks the witness whether there was any possibility of contamination because the necessary precautions were taken. "100% I cannot say, but we are taught to always take precautions," the witness replies. Matthew Farrugia

11:40 Mercieca asks who had made the scans. The witness said he did so himself. "What precautions did you take against contamination of this evidence?" With respect to DNA there was no contamination because the scanning surface was thoroughly wiped before, he says. He had handled the document with gloves, he said. "Double gloving to be precise. A mask too." Mercieca is stopped by the court from making a hypothetical question about the document's handling. Matthew Farrugia

11:34 Mercieca says it dealt with papers allegedly sent by Keith Schembri to Yorgen Fenech. Arnaud had told him that before forensic examinations are carried out on the documents, they are to be scanned and sent to Europol. The lawyer asked the witness to exhibit a copy of a subsequent email from Arnaud, authorising him to do this. The witness says he no longer had a copy. Matthew Farrugia

11:33 The court said that the 30 day period would expire before the witness can testify. Mercieca stresses that the delay is solely the prosecution's fault and was causing prejudice to his client. The witness had been summoned to testify in 2018 but the Bill of Indictment had been issued in the meantime. "The defence is facing the unique situation where the accused has already been held in pretrial custody for four years." Another police officer is called to the witness stand. Mercieca asks him about an email sent to his office, passed on to him by Inspector Casha. He speed reads the email out loud. Matthew Farrugia

11:28 There appears to be a snag with some witnesses from Europol. Two had been on sick leave and one had left Europol and returned to the Dutch police. He was not given the necessary release by his superiors to travel to Malta and testify in the short time frame before this sitting. This situation would be rectified in future, Arnaud tells the court. Matthew Farrugia

11:28 Pressed on whether he had testified about this he said, "I don't remember...." but after the court jogged his memory, pointing out that he had exhibited them in the inquiry, he said he must have. Matthew Farrugia

11:25 Casha confirms that he had been in charge of information security at the time. Mercieca asks whether he had received certain scans from Europol. The prosecution object to the question and the court points out that the witness was summoned to testify about his role in the inquiry. Mercieca asks whether Casha had been asked to testify in the compilation of evidence against Fenech. "I want to clarify that I was not assisting the police, I was appointed by the magistrate to film the search." Matthew Farrugia

11:21 Asked who had performed the search, Casha said Inspector Vella had done so under the instructions of Superintendent Arnaud. His role was to take photographs and film. "I did not carry out the examinations." He confirmed that some documents had been seized but did not know what they dealt with. Keith Schembri was arrested on December 5, around a week after, points out the lawyer. Matthew Farrugia

11:19 Cross-examined by Mercieca, Inspector Casha confirms that the inquriing magistrate had engaged him to search Schembri's office. He is asked to confirm to the court who had been present for the search. Casha asks to see the report. "I accessed the buidling....there were Superintendent Keith Arnaud, Inspector Kurt Zahra and inspector Keith Vella, Keith Schembri as well as a certain Mario Galea." He said he got the impression that Galea worked at Castille, as he had unlocked the doors. Matthew Farrugia

11:15 Inspector Charlot Casha testifies next. He had been instructed to download CCTV footage during the police search of Keith Schembri's office at the Office of the Prime Minister in the Auberge de Castille in Valletta. Asked by the magistrate as to whose office he had searched, Casha replies "a certain Keith Schembri." He had also been nominated by the inquiring magistrate to photograph exhibits passed on to him by Brigadier Jeffrey Curmi. The exhibts consisted of parts of Improvised explosive devices, IEDs, from other cases, which Curmi had been examining. He had presented the exhibits to the magisterial inquiry but this was the first time he was exhibiting them in court. Matthew Farrugia

11:11 Replying to another of Mercieca's questions, Cutajar said he was handed the devices during the evening of 26 November 2019 at the Zebbug police station. He referred to the evidence forms documenting this. "Did you ask why this particular one didn't have a charger?" asked the lawyer. Cutajar said that he had and that the police had gone again to search for the charger but did not find it. Matthew Farrugia

11:08 Cutajar refers to the report he has just presented. "This was an ASUS tablet, 3 or four year old model and discontinued." Its charging port uses a proprietary connector and the expert said he was unable to source a replacement. It was already discontinued in October 2020, he said. Merceica asked whether he could exclude it having been used. The battery was flat and the charging cable was not found, replied the expert. Matthew Farrugia

11:04 Court expert Keith Cutajar takes the stand now. He was asked to exhibit a copy of a report and data he had examined in Magistrate Neville Camilleri's inquiry in 2019. The data had been seized from a property in Mellieha and belong to Keith Schembri. Mercieca cross-examines the witness, asking about one of the exhibts - a tablet which he had not been able to extract data from because it did not have a charging cable. Matthew Farrugia

11:02 A fourth transcriber did not appear today, having informed the court that she was sick. The magistrate is not pleased, ordering the transcriber to present a medical certificate justifying her absence. Matthew Farrugia

11:01 Another transcriber takes the witness stand to exhibit copies of transcriptions of Keith Schembri's statements in November 2019. The first 65 pages long, a second 42 pages long, and a third with 38 pages. Matthew Farrugia

11:00 She exhibits copies of the transcriptions to the parties. Matthew Farrugia

10:58 The transcriber had also transcribed audiovisual statements released by Johann Cremona in November 2019, June 2020, and August 2022. Matthew Farrugia

10:53 The magistrate returns to the hall and the court is now in session. The first witness exhibits a transcription of a recording. "All throughout the recording they are referring to each other by their names, Melvin and Johan...and Peter" the transcriber says, replying to a question by Mercieca. The transcriber says that parts of the recordings could not be transcribed because of audio quality issues - interference and overlapping. Another transcriber takes the stand, as this witness trasncribed Melvin Theuma's audiovisual statment. Matthew Farrugia

10:50 In the meantime it is worth noting that the lead prosecutor in this case has changed after Deputy Attorney Philip Galea Farrugia was appointed to the Bench last Friday. He is replaced by Prosecutors Anthony Vella and Godwin Cini Matthew Farrugia

10:48 We are waiting for magistrate Rachel Montebello to return to the courtroom. Matthew Farrugia

10:45 Fenech is just being led into the courtroom now. He appears to be in good spirits, smiling at friends in the public benches. Matthew Farrugia

10:03 Good morning, Our senior court reporter, Matthew Agius is currently inside court where the newly re-opened compilation of evidence against businessman Yorgen Fenech is set to continue this morning. Matthew Farrugia

Matthew Agius is Senior Reporter on Law and Court Affairs at MaltaToday. He is also a Leg...