Yorgen Fenech compilation: Names of people whose phones were tapped remain under wraps

Compilation of evidence against Yorgen Fenech continues with prosecution refusing to list names of people whose phones were tapped because investigations are ongoing

Yorgen Fenech (File Photo)
Yorgen Fenech (File Photo)

A request by Yorgen Fenech's defence to have a list of names of the people whose phones were tapped has been refused by the prosecution because investigations are ongoing.

During today's sitting of the compilation of evidence against Fenech, the defence asked Superintendent Keith Arnaud multiple times for a list of people whose phones were tapped. However, the lead investigator in the Daphne Caruana Galizia murder said phone taps were in the remit of the Malta Security Service and he did not know who was in the sights of the MSS.

But Arnaud also refused to give the names of people for which phone taps had been passed on to the police, insisting he did not want to divulge any names irrespective of whether this was in open court or behind closed doors. Arnaud said he was willing to speak to the court in private but not in the presence of the defence since investigations were ongoing.

Fenech is accused of masterminding Caruana Galizia's assassination.

His lawyers have made multiple requests to be given access to phone tap data, and other information extracted from electronic devices by Europol experts to be able to mount a proper defence. However, the magistrate has ruled that the prosecution is not obliged to disclose all the information it has at hand, especially if investigations are ongoing.

Fenech's lawyers had asked that all phone taps gathered throughout the investigation, involving Melvin Theuma, Edwin Brincat, former police commissioner Lawrence Cutajar and former police officer Mario Tonna, be brought as evidence.

Journalist Daphne Caruana Galizia died in a car bomb explosion outside her home in Bidnija on 16 October 2017.

Three men who executed the murder - George Degiorgio, Alfred Degiorgio and Vince Muscat - are awaiting trial.

The compilation of evidence against Fenech is being heard by Magistrate Rachel Montebello.

14:15 Thank you for following. Kurt Sansone
14:14 The next sitting is on Monday 28 December at 10am. The sitting is over. Kurt Sansone
14:14 Mercieca is making reference to various points on the application, which we do not have sight of. The court will issue a decision from chambers.
 Kurt Sansone
13:59 Arnaud: “So this is a fishing expedition!” Kurt Sansone
13:57 The defence says it can't know what to limit itself to as it had no knowledge of the information. Kurt Sansone
13:57 Arnaud and Azzopardi object. The MSS head is not mentioned in the list of witnesses requested in the note of renvoi. They also object on the grounds that the request is too vast and generic and should in any case be limited to certain parameters. Kurt Sansone
13:56 The court asks the defence to make its request in writing by 22 December. The defence also requests that in the next sitting, a representative of MSS be summoned to exhibit recordings mentioned by the defence in its application. Kurt Sansone
13:10 “If a person is considered relevant enough to be tapped, Fenech ought to be informed,” Mercieca says. Kurt Sansone
13:08 Mercieca is trying again to find out the names of the people being investigated. Arnaud says he has no objection to speaking in private to the court, but not revealing them to the defence. Kurt Sansone
13:07 The court points out to the defence that they are requesting phone taps between Melvin Theuma and his partner and his partner's children. The defence alleges that there are conversations where the murder is discussed. Arnaud says that he is not aware of any such conversation. Kurt Sansone
12:58 Defence lawyer Charles Mercieca says that he expects the head of the security service or a representative to testify too. Arnaud points out that this witness was not included in the defence's application. Kurt Sansone
12:57 A court expert is appointed to make a copy of the devices exhibited in the inquiry under strict conditions. Only the relevant information will be exhibited. In the next sitting, Arnaud's cross-examination will continue. The defence insists that it wants the phone taps and service provider data. Kurt Sansone
12:47 There is a tense atmosphere in the courtroom. Kurt Sansone
12:46 Arnaud says he has no problem with presenting the relevant data to the defence. Fenech is heard telling his lawyers, “who decides what is relevant?” Kurt Sansone
12:43 “Once this information is on a laptop belonging to a private citizen, this laptop should be exhibited,” Mercieca insists. A similar request had been rejected. The laptop in question belongs to the daughter of Melvin Theuma's partner. Kurt Sansone
12:42 The parties are now discussing the data room request made by the defence which had previously been rejected. Mercieca protests that the defence is learning things from testimony and not from disclosure. Kurt Sansone
12:34 The court allows Mercieca to continue speaking. Kurt Sansone
12:34 Arnaud stands up: “Are we making submissions on bail, now?” Kurt Sansone
12:34 Mercieca: “The defence is not a slave to the prosecution.” Kurt Sansone
12:33 At this stage, the defence suspends the cross-examination. Mercieca tells the court that “it cannot be that the accused be remanded in custody for an entire year”. He says the excuse that the investigation is ongoing is still being used to deny bail. Kurt Sansone
12:30 The defence are consulting with Yorgen Fenech while the court waits for more questions. Kurt Sansone
12:26 Arnaud is asked whether he had heard any phone taps of former police commissioner Lawrence Cutajar. “I don't know if he is being tapped,” Arnaud insists. Kurt Sansone
12:24 Yorgen Fenech prompts a question to his lawyer, Gianluca Caruana Curran. Kurt Sansone
12:23 Mercieca: “We are hearing that the police are investigating other people and we are not aware of them. We need to test this information.” Kurt Sansone
12:23 Arnaud complains that Gianluca Caruana Curran is constantly passing comments. Kurt Sansone
12:22 The court asks the press not to report the names of the individuals the defence is asking about. Kurt Sansone
12:22 He is asked whether he saw phone taps on Mr A and Mr B. “I'm not informed about this,” Arnaud replies. Kurt Sansone
12:21 Arnaud: “When we ask questions in interrogation, we are legally allowed to bluff. He confirms that he had seen phone taps on some people.” Kurt Sansone
12:16 Arnaud says that the data being requested could only be presented by the service provider as it could easily be edited and tampered with. The court is getting annoyed at Mercieca's antics. “You have now three times asked for the presentation of information which is not evidence,” the court says. Kurt Sansone
12:15 The court almost allows a cross-examination in the circumstances when it notices a gesture by Mercieca. Reprimanding the lawyer for making it, the magistrate threatens to withdraw its permission to allow the cross-examination. Kurt Sansone
12:14 Defence requests that it is allowed to cross-examine Arnaud. The court points out repeatedly that the defence is not the Attorney General. Kurt Sansone
12:09 The magistrate says there were already three similar requests and she would not allow this to happen. Kurt Sansone
12:09 The defence suggests that the superintendent give the names of the people being investigated to the court in chambers, even without the defence being present. The court notes it had already decreed that the defence could not request all the service provider data related to the case. Kurt Sansone
12:08 The court says that at this stage this information doesn't relate to the testimony of the superintendent and could damage the investigation given that these persons are still under investigation. Kurt Sansone
12:07 Prosecution says the people who cannot be named are still being investigated. Kurt Sansone
12:07 The prosecution objects to the answering of the question and the giving of these persons’ names beyond those of the Degiorgio brothers, Vince Muscat and Melvin Theuma. Kurt Sansone
12:06 Mercieca tries to extract the names of the persons whose phones are being tapped. He suggests the sitting continue behind closed doors if need be but Arnaud says he will not do so, whether in open court or behind closed doors. Kurt Sansone
12:02 Arnaud: “I have been investigating homicides since 2012 and always learned that the investigation would tell you what is needed. In this case, the MSS were needed. And indeed, they were already active on the case before I requested it.” Kurt Sansone
12:01 Mercieca: “Why?” Kurt Sansone
12:00 Arnaud is asked whether the security services were asked to assist in this investigation. “Yes,” he replies. Kurt Sansone
12:00 The court points out that the defence is not meant to be doing its own investigation, but defending its clients. The court tells off Gianluca Caruana Curran for “just sitting down, passing comments”. Kurt Sansone
11:59 Arnaud is being interrupted as soon as he begins to answer. The court points out that the questions could be made to the security services not to the prosecution. Kurt Sansone
11:58 Arnaud: “I could not ethically ask an MSS operative who was being tapping or not.” Kurt Sansone
11:58 Mercieca frames the question differently. Kurt Sansone
11:57 BACKGROUND INFO.: The Malta Security Service is authorised at law to carry out wiretaps but it can only do this if it gets a warrant from the minister responsible for home affairs or the prime minister. The police have no part to play in the issuing of a warrant for wiretaps and the MSS operates distinctly from the police. Information obtained by the MSS through wiretaps can be passed on to the police to help them in their investigations. Kurt Sansone
11:55 Arnaud says he has nothing to do with this procedure. Kurt Sansone
11:54 Mercieca: “Were the wiretaps made with a warrant?” Kurt Sansone
11:53 Mercieca asks which MSS operative had passed on the recording but is stopped by the court. Kurt Sansone
11:52 The court tells the defence off. “Sur Avukat, you can't come here and expect to do what you like with the laws of procedure. Procedure is there to be followed not to be disrupted,” the magistrate says. Kurt Sansone
11:50 Mercieca asks if he knows whether a particular individual's phone was tapped. Arnaud protests that he has nothing to do with the issuing of warrants and wiretaps. Kurt Sansone
11:48 Arnaud says that he had used certain wiretaps in an interrogation for a total of 20 minutes and returned the pen drive to the person who handed it to him - understood to be a Malta Security Service representative. Kurt Sansone
11:45 Arnaud: “I cannot present things which I have no possession of. I cannot testify about things to do with the Security Services.” Kurt Sansone
11:43 Mercieca asks if Arnaud is going to exhibit the phone taps indicated in the court application. Kurt Sansone
11:43 Mercieca takes a dig at the media about a leaked recording, which the court had no idea about. Kurt Sansone
11:42 Inspector Kurt Zahra protests that questions are going beyond the remit of today’s sitting. Kurt Sansone
11:41 More questions are being asked about X (the person who cannot be named on court order) and the January recordings. Kurt Sansone
11:39 She reprimands the defence for “badgering the witness”. Kurt Sansone
11:39 The court prohibits a question by the defence. “The witness was summoned to testify for a specific reason... and don't expect the superintendent to answer questions he is not prepared for,” the magistrate says. Kurt Sansone
11:38 Fenech asks to be allowed out of the court briefly and this is granted. The sitting continues in his absence. The accused returns immediately. Kurt Sansone
11:35 The court is in an angry exchange with the defence. Mercieca is arguing that the investigation is dawdling and this in itself is a reason for bail to be granted. “When I was at the Attorney General’s office...” begins Mercieca but is cut off by the court. He continues: “We are a year into the case and these recordings aren't presented yet.” Kurt Sansone
11:29 Defence lawyer Charles Mercieca is asking specific questions but Arnaud protests that he wasn't asked to prepare for them. The court agrees with Arnaud. Kurt Sansone
11:27 The name of the person being asked about cannot be mentioned on court order. Kurt Sansone
11:27 Arnaud: “This was eight weeks ago.” Kurt Sansone
11:26 Mercieca: “In the last five times you spoke to this person, when was the last time?” Kurt Sansone
11:25 The witness explains that the persons mentioned in the recordings had been interrogated at length. Inspector Kurt Zahra intervenes, arguing that the questions made by Mercieca were a cross-examination when in fact the witness was summoned by the defence. Mercieca passes a comment about Zahra and is reprimanded by the court. Kurt Sansone
11:19 Arnaud explains that because investigations are still underway he is not in a position to grant disclosure of this evidence to the defence. The superintendent is asked to give names of those being investigated. The court prohibits the publication of the names. Kurt Sansone
11:15 Arnaud: “If I'm not mistaken, the issue of the presidential pardon came out of the discoveries found in the ice cream box.” Kurt Sansone
11:12 Mercieca asks whether the allegation that Melvin Theuma's pardon was pre-arranged emerges from the recordings. Kurt Sansone
11:11 Arnaud: “No, I used the copy given to me by the inquiring magistrate.” Kurt Sansone
11:10 Mercieca: “I imagine you made copies of this, correct?” Kurt Sansone
11:10 Arnaud: “Yes.” Kurt Sansone
11:10 Mercieca asks whether the 10 recordings discovered in January are related directly to the charges against Fenech. Kurt Sansone
11:09 Arnaud: “Melvin had his ice cream box of recordings. But it was during the examination of other devices that the recordings were discovered. The discovery was made in January.” Kurt Sansone
11:05 Mercieca asks him again to exhibit the recordings. Arnaud explains again that unless he is authorised by the inquiring magistrate he cannot do so. “The request can be made. We have no intention of hiding them,” Arnaud says. Kurt Sansone
11:03 Arnaud says that these recordings were on devices which weren't in Melvin Theuma's possession. “If I'm not mistaken they were on the laptop belonging to the daughter of the partner of Theuma,” he says. Kurt Sansone
11:02 Arnaud says that the recordings formed part of the magisterial inquiry into the murder, which is still ongoing and therefore he is not authorised to exhibit them. Kurt Sansone
11:02 Mercieca asks him about the discovery of new tapes in January and asks him to present them to the court. Kurt Sansone
11:01 The defence calls Superintendent Keith Arnaud to the stand. Kurt Sansone
11:00 He objects to the presentation or passing on of the contents of the accused's mobile phone to this court of compilation... The defence is objecting and insisting that only the testimony indicated in its court application be heard. The court refuses the request. Kurt Sansone
10:57 The court appears reluctant to grant it as it was not mentioned in a previous note. It is listening to Mercieca's objection. Kurt Sansone
10:57 Defence lawyer Charles Mercieca rebuts: “He knows what the constitutional court teaches us about this. His request is intended to confuse. It is not a worthy request.” Kurt Sansone
10:54 Parte civile lawyer Jason Azzopardi stands up and asks the court to also order the witness to hand over a copy of a hard drive. The defence objects. Kurt Sansone
10:48 The magistrate's deputy registrar is now allocating code numbers to the transcripts in the presence of the defence and prosecution. This is being done so that everyone will have the same reference numbers for the documents. It is a tedious exercise, but a necessary one. Kurt Sansone
10:42 The two transcribers say that they had transcribed eight recordings from a pen drive they had been given. They collected the pen drives from the magistrate's chambers from her deputy registrar. Kurt Sansone
10:39 The witness's deposition is suspended for now. He leaves the courtroom. The testimony is suspended until the transcript of the recordings is exhibited by the next witnesses. Kurt Sansone
10:36 Cardona says he has not changed anything of the video part of the recording, other than covering the mouths in parts where he had been requested to do so. Kurt Sansone
10:32 He says that some parts of the DVDs had to be censored and muted. It is not apparent why. Six DVDs are exhibited. He hands copies to the parties. Kurt Sansone
10:29 A court-appointed IT expert, Alvin Cardona, takes the stand to report on his task of making copies of Melvin Theuma's deposition and cleaning up the audio. Kurt Sansone
10:26 The three psychiatrists who evaluated Melvin Theuma take the stand. The court tells us that we are prohibited from publishing what they say. Kurt Sansone
10:25 Magistrate Rachel Montebello emerges from chambers and the sitting begins. She is going to decree Fenech’s application from the 9 December. Kurt Sansone
10:10 Yorgen Fenech and his family are also inside. He is discussing something with his lawyers. Parte civile lawyer Therese Comodini Cachia has just entered and is speaking with Daphne Caruana Galizia's family. Kurt Sansone
10:09 Inspector Kurt Zahra and Superintendent Keith Arnaud are here, as are defence lawyers Marion Camilleri, Charles Mercieca and Gianluca Caruana Curran. Parte Civile lawyer Jason Azzopardi is chatting with the inspectors. Kurt Sansone
10:09 We're settling in the courtroom and proceedings should start very soon.
 Kurt Sansone
10:07 Good morning. Kurt Sansone