Judge orders police to identify and prosecute persons behind Yorgen Fenech bail application leak

The Criminal Court has ordered the police to investigate how the latest bail application filed by Yorgen Fenech’s defence team had ended up being reported in the press before the Criminal Court had even seen it.

The order came as pre-trial proceedings against Fenech, who will have to face a jury on indictment for allegedly masterminding the murder of Daphne Caruana Galizia, continued before madam justice Edwina Grima on Wednesday. 

Lawyer Charles Mercieca, part of Fenech’s defence team, told the court he had just filed a note demanding action be taken about the leak of Fenech’s latest bail request, news of which had been published hours before the defence had made its arguments about it in court.

Accordingly, the court ordered the police to investigate this new development and inform the court about how the media was getting information about acts exhibited in the case, about which only the parties were aware. The judge ordered the police to prosecute anyone who had breached her previous order prohibiting the publication of evidence and documents from the criminal case.

Mercieca argued that in 2021, a court had ordered the prosecution of persons who had leaked evidence from a compilation of evidence. The reference appears to be to the prosecution of MaltaToday’s owner and two other members of its editorial team over the publication of parts of audio recordings of Melvin Theuma’s phone calls, which revealed that Theuma had been tipped off about an investigation into his money laundering activities.

In a series of stories published that year, the MaltaToday had also shown that Theuma had been informed that one of the murderers had requested a pardon in return for information, that Theuma had been told that the OPM would pin the journalist’s assassination on a suspected fuel smuggler and that Theuma was being briefed on the developments in the murder investigation. Another recording reported on by the news portal had revealed that Theuma had been coached on what to say whilst covertly recording his conversations with Fenech. 

That case had ended in an acquittal in May 2022, with the magistrate pointing out that the law regulating these matters had not been updated in half a century. Despite that ruling, the law remains unchanged, nearly two years on.

Mercieca told the court that the argument for continuing to hold Fenech in preventive custody  had been “completely denatured.” 

“When Guido De Marco had introduced the 20 month limit on compilations of evidence, he intended it to mean that nobody should spend longer than that in preventive custody.

“So in 2020, when the AG knew that no further evidence was available but when several reports were not completed and important evidence had not even been analysed, the bill of indictment was issued anyway, with 40 days to go before the 20 month limit expired.” 

“Had the AG not issued the bill of indictment in the manner she did, Fenech would be on bail right now,” said the lawyer.

Prosecutor Anthony Vella, representing the Office of the Attorney General, reiterated the prosecution’s consistent argument that Fenech had already attempted to abscond before becoming aware of the extent of the evidence against him. “Now he does know what he will be facing during his trial, and so the risk is much greater.”

He reminded the court about Fenech’s chats with his uncle Ray, in 2019, in which they had explored the possibility of him leaving the Maltese islands by air, making inquiries about flights and speaking to a private jet pilot, but later decided that it would be better to escape by sea. 

“He decided on the sea route and had spoken to the captain of his yacht, as well as making arrangements for onward transport in Italy, using cash to avoid a paper trail.”

Fenech had connections with people involved in criminal organisations, he added, to loud objections from the defence bench. “With whom? Keith Schembri?” shouted Mercieca. 

Besides the risk of Fenech absconding, there was also the risk that he would attempt to tamper with evidence in the inquiry, which is still ongoing with regards to third parties, the prosecutor went on. Vella reminded the court that Fenech had also asked for a Presidential pardon. 

“The most important thing at this stage is to ensure that justice is allowed to take its course,” he said. The jury would ultimately decide the outcome, but the prosecution had a duty to ensure that it took place, Vella said, insisting the threat of escape was a “very realistic” one.

“We owe it to the Republic, to society, the victim and her family and also, finally, to the defendant who will have his day in court.”

Mercieca hotly replied that the Attorney General does not speak for Fenech. He argued that justice did not require that Fenech be held in custody for five years and required that investigations be carried out properly. The AG should not have told the court that experts had completed their tasks when they hadn’t and doesn’t want to speak about it in court, retorted the lawyer.

“The AG is still stuck in 2019, but even back then, Fenech had been released on police bail.”

“We have Italian judgments telling us that third parties paid for the murder. What does the AG say? Silence,” Mercieca said, arguing that his client should not be remanded in custody to preserve evidence in cases against third parties who are currently not in custody.

“A report that was suppressed until 2024 had mentioned other suspects,” the lawyer went on. “Third parties were also mentioned, but absolutely nothing was done against them.”

Mercieca insisted that Fenech was still presumed to be innocent at this stage. “Let us forget for a moment the botched job that is being done with respect to those third parties…Keith Schembri, Chris Cardona ….the AG says nothing about them.”

Before adjourning the sitting to Friday, the judge announced that a decree on the bail request would be issued from chambers.