Yorgen Fenech’s defence claim ‘true masterminds’ of Caruana Galizia murder ‘running around outside’

The compilation of evidence against Daphne Caruana Galizia murder mastermind Yorgen Fenech continues with defence lawyers arguing their client is being denied a fair hearing

1 October 2020, 11:29am
by Matthew Agius

2 min read

Yorgen Fenech

Yorgen Fenech’s defence team has claimed that the “true masterminds” in Daphne Caruana Galizia’s murder are still running around outside in a sitting characterised by procedural wrangling.

Fenech’s lawyer Charles Mercieca argued that his client was being denied a fair hearing by the prosecution’s resistance to grant access to taped conversations and mobile phone data.

“How can we have a fair hearing when the prosecution doesn’t want to give us tapes... [or] the mobile phone? Nobody is believing this crusade against Fenech. The true masterminds are running around outside,” Mercieca said.

He was arguing the case as the compilation of evidence against Fenech continued today. The sitting was reserved for procedural wrangling with the prosecution dismissing the defence’s claims that mobile phone data risks being lost, insisting the data being requested is preserved in the acts of the inquiry.

However, Mercieca argued that the Attorney General was trying to stop the accused from presenting evidence and make his defence. Mercieca also warned that if the request to present evidence was not upheld, he will request the nullity of the compilation of evidence and eventual sentence.

Mercieca’s arguments were dismissed as “legal hogwash” by lawyer Jason Azzopardi, who is appearing as parte civile lawyer for the Caruana Galizia family.

Magistrate Rachel Montebello who is hearing the case will rule on the requests from her chambers.

The next sitting will be held on 6 October at 10am.

Previous sitting

During the previous sitting, the court heard of a WhatsApp group between Fenech, Joseph Muscat and Keith Schembri. Fenech had told the police when describing his relationship with Muscat and Schembri, ‘We are like brothers.’

The evidence against Fenech primarily rests on the testimony of Melvin Theuma, the middleman in the murder. Theuma, who had secretly recorded various conversations between himself, Fenech and others, was given a presidential pardon to tell all last year.

Daphne Caruana Galizia, an investigative journalist, died in a car bomb explosion outside her home in Bidnija on 16 October 2017.

Magistrate Rachel Montebello is hearing the compilation of evidence against Fenech.

The defence lawyers are Marion Camilleri, Gianluca Caruana Curran and Charles Mercieca.

The prosecution is being led by inspectors Keith Arnaud and Kurt Zahra, assisted by the Attorney General.

13:48 That's it for today. Thank you for following. Kurt Sansone

13:48 The case continues on 6 October at 10:00am. Kurt Sansone

13:34 The court will give a decree from chambers on the applications by the accused and the relevant acts tomorrow. Lawyer Jason Azzopardi asks the court to consider indicating the days during October it will be holding sittings. Kurt Sansone

13:28 The defence argues that the longer the AG holds on to the inquiry the more evidence is being lost for their client. “If the AG persists and evidence is lost the accused will have no remedy,” Mercieca says. Kurt Sansone

13:26 Mercieca says that if his request to present evidence is not upheld, he will request the nullity of the compilation of evidence and eventual sentence. Kurt Sansone

13:22 Mercieca makes another submission to the court, saying that it is very serious that the AG tries to stop the accused from presenting evidence and making his defence. Kurt Sansone

13:21 Inspector Keith Arnaud asks the court to prohibit the publication of any geolocation data pertaining to Melvin Theuma for his safety. Kurt Sansone

13:20 Parte civile lawyer Jason Azzopardi addresses the court. He invites the court to review two appeal cases in which a police request for call data of a single day and a determined place was also seen as a fishing expedition. The cases were the arson attacks on the houses of journalists Daphne Caruana Galizia and Saviour Balzan. Kurt Sansone

13:14 Mercieca: “If the deputy AG believes that the individuals mentioned in the tapes which have been brought as evidence against Yorgen Fenech are not of relevance, I challenge him to declare this in court.” Kurt Sansone

13:07 Deputy AG Philip Galea Farrugia makes his submissions. He asks for the relevance of the request with respect to the individuals. “We aren't talking about persons suspected of the crime, we are talking about persons who spoke to each other during the compilation of evidence. Lawyers are included. To ask for a dragnet collection of all their phone data would constitute a large scale breach of legally protected rights,” Galea Farrugia says. Kurt Sansone

13:03 The court will decree from chambers tomorrow on the two applications. Kurt Sansone

13:03 The court asks the prosecution if there is a problem with exhibiting the proces verbal. Galea Farrugia says that it will be done on 6 October. He explains that there is a legal difficulty in that the file contained a number of documents relating to open inquiries into other unsolved bombings, in which Fenech is not a suspect. Kurt Sansone

12:57 Mercieca: “How can we have a fair hearing when the prosecution doesn’t want to give us tapes... [or] the mobile phone? Nobody is believing this crusade against Fenech. The true masterminds are running around outside.” Kurt Sansone

12:52 “The AG is saying that the audio-visual statement is not admissible,” claims Mercieca, but points out that the AG had presented such statements in other juries. Kurt Sansone

12:51 It is unclear to us what “receipts”, Mercieca is referring to. Kurt Sansone

12:50 We have been allowed back inside the courtroom. Defence lawyer Charles Mercieca continues his arguments, about receipts which the AG “doesn't want” to exhibit. Kurt Sansone

12:44 The court upholds the request and the public is ordered out of the courtroom. Kurt Sansone

12:38 The court says the defence has indicated a number of people, some of whom are not mentioned in the proceedings and have no apparent ties to the crime. The court wants to understand the ties. Mercieca asks that the sitting continues in private. Kurt Sansone

12:36 The court reminds the defence that the data requested deals with the last 12 months. Kurt Sansone

12:35 Mercieca argues that the call data would be erased in a few weeks due to GDPR, although it is already preserved in the magisterial inquiry. “Legal hogwash,” lawyer Jason Azzopardi says, under his breath. Kurt Sansone

12:34 The lawyer says that all evidence is presentable unless it’s inadmissible. "It is a well-known fact that call profiles and data are held for 12 months. As much as we want to exhibit it, we don't have this evidence which would have shown who truly is the mandant," Mercieca insists. Kurt Sansone

12:28 “I want this evidence to be preserved... you are stopping us from using this remedy,” continues Mercieca. He is asking that the evidence and call profiles, location data of several people be exhibited. Kurt Sansone

12:26 The magistrate chides the lawyers and asks them to be civil. Kurt Sansone

12:26 Mercieca says he is perplexed by the normally erudite AG's lack of erudition in his submissions to deprive Fenech of his rights. Galea Farrugia interrupts, calling Mercieca's submissions "baħnanati". Kurt Sansone

12:22 Defence lawyer Charles Mercieca makes submissions. The defence wants the AG to give his position on the request filed by Melvin Theuma's family, and see if they are relevant. Assistant AG Philip Galea Farrugia says this is not the correct procedure. Kurt Sansone

12:21 The sitting resumes. Kurt Sansone

12:08 The court has given the parties some time to acquaint themselves with the contents of the various applications and notes filed before it. The magistrate has retired to chambers for the time being. Kurt Sansone

12:08 The prosecution says it has not been notified with a note by the accused. The court says it wants to hear submissions on the request to preserve call data belonging to third parties. The defence and prosecution and parte civile inform the court that they have not been notified with another note presented by lawyer Kathleen Grima, who represents pardoned middleman Melvin Theuma. The parties are thrashing out who needs to be notified with what. Kurt Sansone

11:55 Magistrate Rachel Montebello has emerged from chambers and the sitting begins. Kurt Sansone

11:40 The sitting is being held in a large hall, generally used by the Criminal Court for juries. This is to accommodate all the interested parties while respecting social distancing. Kurt Sansone

11:36 Inspector Keith Arnaud, the lead investigator on the murder, has entered the courtroom. Kurt Sansone

11:35 Yorgen Fenech has just been led into the courtroom. He gives his lawyer, Gianluca Caruana Curran, a friendly tap on the shoulder. The two are discussing something. Kurt Sansone

11:34 Members of Yorgen Fenech’s family and Daphne Caruana Galizia’s are in the courtroom. Kurt Sansone

11:32 We are back in court to follow the compilation of evidence against Yorgen Fenech. Kurt Sansone

11:31 Good morning. Kurt Sansone

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