Mark Camilleri did not publish all messages between Cutajar and Fenech, inspector tells court

Author Mark Camilleri had not published all of the messages exchanged between Rosianne Cutajar and Yorgen Fenech, but had withheld 339 of them from publication, a police inspector has told a judge this afternoon.

This emerged from the testimony of Police Inspector Christina Delia, who took the witness stand before Mr. Justice Toni Abela, presiding over the First Hall of the Civil Court in its Constitutional jurisdiction as the author’s Constitutional case against the Attorney General continued this afternoon.

In this case, Camilleri is asking the court to, amongst other things, declare that he had been acting in the public interest when he published the chats, in violation of court-imposed secrecy orders.

Camilleri also claims to have suffered breaches of his fundamental right to freedom of expression and his right to a fair hearing thanks to the ensuing legal action pursued against him over the leaks.

Lawyer David Bonello, representing Camilleri together with lawyer Joseph Mizzi, asked the police inspector about the criminal charges that had been filed against Camilleri, after chats between Rosianne Cutajar and Yorgen Fenech were published on Camilleri’s blog, late on March 21 2023.

The Criminal Court had ordered an investigation into the leaks, replied the inspector. That investigation took less than 48 hours to complete, as the police inspector told the judge that the Criminal Court was informed of its conclusion on March 23.  The verdict it reached was that the messages published by Camilleri had been the same as those exhibited in the criminal proceedings, the publication of which had been banned, first by the Court of Magistrates and subsequently also by the Criminal Court.

Bonello asked the inspector what communication had taken place between the police and Camilleri between the 22nd and 23rd of March. Camilleri had contacted the police first, she said, in an email sent on the 22nd.

In the email, which Camilleri had sent directly to the Commissioner of Police, he said that he “would be happy to go to the depot but that he would not answer any questions,” recalled the witness.

After the Criminal Court’s decree of the 23rd March, in which it ordered that Camilleri be prosecuted, the inspector attempted to contact the author on his mobile phone number, but the call was redirected to voicemail, the redirection being announced in a foreign language which, she said, sounded Spanish.

Inspector Delia added that the police investigation had established that “most, but not all, of the chats had been published.”

Mr. Justice Abela asked the inspector what had, in fact, been published. “Chats from the murder investigation into Yorgen Fenech,” replied the witness, who explained that she had been allowed to view the original chats by Superintendent Keith Arnaud, in order to verify that they were the same as those published.

The publication ban on the evidence had first been imposed during the compilation of evidence before Magistrate Rachel Montebello. Subsequently, on 29 November 2021, the Criminal Court, presided by Madame Justice Edwina Grima had also ordered that none of the contents of the evidence could be published on any media, bar what was read out in open court.

Asked by Bonello whether she had informed the Criminal Court that Camilleri had already emailed the Commissioner of Police about them, the inspector replied that she had not been aware of the email at the time.

The lawyer also asked whether the Inspector was aware that the chats had been exhibited in other court proceedings, including the libel case which Cutajar had filed against his client.

Inspector Delia replied that she could not say, as she was not involved in those proceedings.

The libel case being referred to was also being heard by Montebello, the same magistrate who had issued the original gag order, the lawyer observed.

Unable to reach Camilleri by phone, after the Criminal Court’s decree, the inspector had sent him an email, requesting he submit to interrogation. In his reply, Camilleri said that he would be willing to go to the police headquarters “right away”, but advised that he “won’t be telling you anything else other than that I have a source [and I] won’t disclose it.” He directed any further questions to his lawyers.

The judge asked what the point of the interrogation was going to be. “We wanted to identify the source of the leaks,” Delia replied, explaining that this had been ordered by the Criminal Court.

When asked by the judge as to whether the publication of the chats had taken place before or after Cutajar had filed libel proceedings against Camilleri, the inspector replied that she recalled both events taking place on the same day, but could not confirm this as she did not have the dates to hand.

Months’ worth of messages remain unpublished - Police Inspector

Camilleri’s lawyers then asked the witness whether all the messages exhibited in the criminal proceedings had been published. They had not, she replied.

“There were months’ worth of messages missing, between 19 January and 16 September, 2019,” she replied, “but those he published were genuine.”

She explained that Camilleri had published 2,320 messages out of the total 2,659.

The judge asked whether Camilleri had explained why he had not published all the chats.

He had not given an explanation, the Inspector replied, adding that Camilleri had subsequently also published chats involving third parties and that the police had informed the Criminal Court about this.

Mizzi suggested the chats in question had to be exhibited, arguing that the judge could not evaluate whether or not their publication had been in the public interest.

This was something which Mr. Justice Abela was initially reluctant to do, telling the lawyer that he was there to see that the Constitution and European Convention of Human Rights were respected, not to review procedural decrees by the Criminal Court.

“You are asking this court to decide whether this [publication] was in the public interest, and therefore we are in agreement that the published chats are the same ones [exhibited in the criminal case] and so it is unnecessary,” remarked the judge.

Mizzi interjected, explaining that the defence had not seen the case file that is before the Criminal Court and had no access to it, unlike the Inspector. “We don’t know what is in the file, but she can check. That is what we are asking her to do.”

Bonello highlighted the fact that there appeared to be more chats exhibited in the criminal proceedings which his client had not published. He denied the suggestion, made by lawyer Julian Farrugia on behalf of the Attorney General, that this appeared to be “an attempt to weaken the argument that the chats had been obtained from the criminal proceedings against Fenech.” Lawyer Miguel De Gabriele, also assisting the AG, described it as a “fishing expedition.”

But Bonello repudiated that claim, explaining that the defence was trying to establish whether the published chats were, in fact, the same chats exhibited in the criminal case, as was being alleged.

Inspector Delia told the court that the chats which Camilleri had published on his website were the same as those that had been exhibited in the criminal proceedings against Yorgen Fenech, but added that she obviously had not yet seen those handed to her by the lawyers today.

Bonello insisted that this copy also had to be confirmed as genuine, in order to prove that the publication of the chats had been in the public interest.

The judge remarked that the witness had just testified that they were the same, but conceded that he couldn’t blame the inspector for not wanting to simply take a party at its word.

The Attorney General did not accept either, and so the court ordered the inspector to once again go through the chats handed over by Camilleri’s lawyers in order to confirm that they were the same as the ones exhibited in the criminal case against Yorgen Fenech.

Mizzi then exhibited copies of the Auditor General’s report on Rosianne Cutajar’s property deal with Yorgen Fenech and a decision by the Public Broadcasting Authority, which stated that the publication of the chats had been in the public interest.

The case was adjourned to April for the conclusion of Camilleri’s evidence.