Daphne murder: Chief investigator testifies behind closed doors on Yorgen Fenech pardon request

Superintendent Keith Arnaud testifies behind closed doors about what Yorgen Fenech told police last year when he asked for a presidential pardon during interrogations

26 November 2020, 10:10am
by Matthew Agius

2 min read

Murder suspect Yorgen Fenech

The chief investigator in the Daphne Caruana Galizia murder case, Superintendent Keith Arnaud, has testified behind closed doors in relation to a pardon request by Yorgen Fenech.

Arnaud took the witness stand on Thursday morning as the compilation of evidence against Fenech continued.

Magistrate Rachel Montebello ruled at the start of the sitting that Arnaud's testimony on what Fenech had told police while he was in custody last year should be heard behind closed doors.

Arnaud was expected to testify about the request for a pardon Fenech had made at the time and any information he may have divulged to investigators.

Fenech's defence team wanted the testimony to be heard behind closed doors so as not to prejudice their client's right to a fair hearing. The prosecution and the parte civile lawyers objected but the court ruled Arnaud's testimony will be heard behind closed doors.

Arnaud's testimony lasted more than three hours.

At the end of the sitting, Fenech's lawyers asked for bail. The prosecution objected and the magistrate is expected to rule on the request from chambers.

Previous sitting

During the previous sitting, Yorgen Fenech’s lawyer argued that radio comments by Jason Azzopardi were prejudicial to his client’s right to the presumption of innocence and requested a remedy. In a subsequent ruling, Magistrate Rachel Montebello dismissed the complaint but also cautioned Azzopardi to be careful when making public statements about the case in which he is parte civile lawyer.

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.

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 Superintendent Keith Arnaud and Inspector Kurt Zahra, assisted by the Attorney General.

Lawyers Jason Azzopardi and Therese Comodini Cachia are appearing parte civile for the Caruana Galizia family.

14:22 That’s it for today. Thank you for following. Kurt Sansone

14:20 The case continues on Monday 30 November at 1pm. Kurt Sansone

14:19 Parte civile lawyer Jason Azzopardi is deep in conversation with Galea Farrugia. Likewise, Fenech is talking with his lawyers. Kurt Sansone

14:18 The court will decree on the bail request from chambers. Kurt Sansone

14:18 Defence lawyer Charles Mercieca says that the fact that experts are now going to testify, the evidence cannot be tampered with and so bail should be granted. Kurt Sansone

14:17 Defence lawyer Marion Camilleri says that it must be clarified that when Fenech was on police bail, he was not accompanied by the police. “There were many officers but not to prevent his escape,” she adds. Kurt Sansone

14:16 The court tells off the defence for raising an objection when Europol's testimony is mentioned. Kurt Sansone

14:15 Deputy AG Philip Galea Farrugia is arguing that while Fenech had complied with his police bail conditions, this was because he was constantly monitored by the police. “The investigations are still underway,” Galea Farrugia says. Kurt Sansone

14:15 We're back in. The court is hearing a bail request. Kurt Sansone

11:04 The press is ordered out of the courtroom. Kurt Sansone

11:04 In a warning to the media and all parties present she adds: “The court makes it clear that the revealing of the testimony given behind closed doors is a crime and the obligation to confidentiality binds all those present.” Kurt Sansone

11:02 Arnaud's testimony and other witnesses on the pardon request by Fenech will be heard behind closed doors. Kurt Sansone

11:01 Magistrate Montebello says the court must ensure that insofar as possible the fundamental rights must not be harmed and avoid this from happening. “The court is informed that there are proceedings filed by the accused about a breach of a right to a fair hearing because of the decision of this court to order the hearing of witnesses about what the accused confidentially said to the police in relation to a request for a pardon. The court is of the opinion that because the information was given confidentially for the purpose of obtaining a pardon as well as because there are pending constitutional cases on the admissibility of the evidence, at this stage the hearing of the witness in open court could damage the interests of justice,” she decrees. Kurt Sansone

11:00 QUICK RECAP: Yorgen Fenech’s defence team – Marion Camilleri, Charles Mercieca and Gianluca Caruana Curran – want lead investigator, Superintendent Keith Arnaud, to testify behind closed doors. The prosecution and the parte civile lawyers are objecting to this, insisting that the court can decide to ban publication or hear particular parts of his testimony behind closed doors if it deems this to be necessary. Kurt Sansone

10:57 Defence lawyer Charles Mercieca: “There is misreporting in the media. The reporting is very detailed and while it can be expunged from the proceedings, it cannot be expunged from the memory of the public.” Kurt Sansone

10:56 Camilleri expresses suspicion as to why the parte civile wants this information to be made public so much. Kurt Sansone

10:55 Defence lawyer Marion Camilleri argues that the people reading the newspapers today are the people who will judge Fenech in the future. “This is the irremediable damage,” she says. Kurt Sansone

10:54 Comodini Cachia says that even if some form of harm is imagined, there are still further stages to decide if the testimony heard today is admissible at all. Kurt Sansone

10:54 Comodini Cachia quotes from the constitutional judgment in the Degiorgio case. ‘If the testimony is given in open court, will irremediable harm be done or not? This court's remit is to gather and preserve the evidence which necessitates the proceedings to be public unless in the exceptional cases mentioned in the law itself.’ Kurt Sansone

10:52 Yorgen Fenech taps his lawyer, Gianluca Caruana Curran on the shoulder and passes on a message to Camilleri. Kurt Sansone

10:51 Parte civile lawyer Therese Comodini Cachia: “The complaint is that the decree of this court breached his fundamental rights. An interim measure was requested. It is precisely because it didn't feel this was the case that the interim measure was rejected. Asking for a different form of interim measure is playing games with the decree. In the Alfred Degiorgio case last December, the constitutional court said that unless notified with a decree ordering it to act in a certain way, the court of magistrates was duty bound to continue with the hearing.” Kurt Sansone

10:50 Lawyer Marion Camilleri: “When a pardon request is made it is made with an intention and we do not want our confidential information to be made public. The request is to safeguard the fundamental rights of the accused. There is an ongoing constitutional case on the matter. I don’t think that a confidential declaration made for the purpose of a pardon should be broadcast in the media.” Kurt Sansone

10:49 Lawyer Charles Mercieca: “The opposite had happened with the recordings.” Kurt Sansone

10:49 Galea Farrugia opposes. He insists the court can order certain parts of the testimony be held behind closed doors. “The defence cannot pick and choose what can be published,” he says. Kurt Sansone

10:48 Magistrate Rachel Montebello: “In view of this court pronouncement and in order not to prejudice the rights of the accused relating to the revelation of information given to him informally by the police whilst under arrest, the defence requests that the witness testify about this information behind closed doors.” Kurt Sansone

10:41 The decree in the spotlight is the one handed down this morning by the constitutional court. Kurt Sansone

10:39 Deputy Attorney General Philip Galea Farrugia says that the decree said that the court could order a ban on publication and not that the proceedings be held behind closed doors. Kurt Sansone

10:37 Camilleri says that separate constitutional proceedings had decreed that the court should consider having the witness testify behind closed doors. Kurt Sansone

10:36 Defence lawyers Charles Mercieca and Marion Camilleri stand up. Kurt Sansone

10:36 Arnaud takes the stand. Kurt Sansone

10:36 The defence is shown the Attorney General's reply to a request it had filed. There was opposition to the request. It is not clear what the defence's request was. Deputy Attorney General Philip Galea Farrugia tells the court that Superintendent Keith Arnaud will now testify. Kurt Sansone

10:33 The court is now in session. Kurt Sansone

10:26 We are waiting for the compilation of evidence to start. Kurt Sansone

10:25 In a separate decision handed down this morning a judge threw out a request by Yorgen Fenech for a court order preventing the police from testifying as to evidence he gave during meetings in which he requested a presidential pardon. The decree was handed down by Madam Justice Anna Felice, presiding the First Hall of the Civil Court in its Constitutional jurisdiction. Kurt Sansone

10:18 The court yesterday denied a request by Yorgen Fenech’s lawyers to order the production of all mobile service provider data gathered by the police in the investigation against him. Magistrate Rachel Montebello decreed that although the defence had the right to access the results of the investigations, this right “did not necessarily extend to every part of or all the material of the investigation”. Kurt Sansone

10:13 We are waiting for another session in the compilation of evidence against murder suspect Yorgen Fenech. Kurt Sansone

10:13 Good morning. Kurt Sansone

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