Yorgen Fenech’s defence claims recordings show star witness Melvin Theuma in ‘a different light’

Yorgen Fenech’s lawyer accuses the prosecution of 'dirty tricks' and abuse of power as he makes preliminary submissions in front of a judge

Yorgen Fenech stands charged with the murder of Daphne Caruana Galizia
Yorgen Fenech stands charged with the murder of Daphne Caruana Galizia

Yorgen Fenech’s defence lawyers accused the prosecution of using “dirty tricks” to obtain a conviction “at all costs,” in their preliminary pleas to a judge on Friday.

Fenech is indicted and will stand trial for the 2017 murder of journalist Daphne Caruana Galizia, who was investigating his part in a deal between the government and the Electrogas consortium. The consortium, of which Fenech is a shareholder, was awarded a contract to build a power station in Malta and supply the state-owned electricity provider with energy.

Caruana Galizia was assassinated by a bomb placed under the driver’s seat of her car in October 2017.

As the sitting for submissions on Yorgen Fenech’s preliminary pleas began on Friday, defence lawyer Charles Mercieca dictated a note to the court, declaring that although the defence had requested the recusal of presiding judge Edwina Grima, and had filed a constitutional case in this regard, “the defence… has no doubt in the integrity of this court, as presided. It never had, we do not have, and never will, howsoever it decides.”

Lawyers Charles Mercieca (left) and Gianluca Caruana Curran are appearing for Yorgen Fenech, alongside Marion Camilleri (not in photo)
Lawyers Charles Mercieca (left) and Gianluca Caruana Curran are appearing for Yorgen Fenech, alongside Marion Camilleri (not in photo)

“The reasons for which the defence proceeded in this way are reasons which are purely legal and nothing more,” said the lawyer. The constitutional case is still ongoing, however.

In his lengthy submissions, Mercieca argued that the prosecution was using “dirty tricks” to deprive the defence of access to vital information.

This includes police statements of people expected to be brought as witnesses, he said. “We aren’t asking that they be exhibited as evidence but as disclosure to the defence. The defence is finding disgusting resistance against it seeing this evidence. It is often ignored,” Mercieca explained.

Deputy Attorney General Philip Galea Farrugia replied to this, arguing that the statement is only evidence with regards to the person who released it. If there are statements constituting hearsay, and which are therefore inadmissible, then disclosure doesn’t apply, Galea Farrugia said.

Mercieca then clarified that the defence was seeking that these statements be “revealed, not exhibited.”

The lawyer accused the prosecution of being ready to ignore a “telling off” they received from the constitutional court. “I would be ashamed to show my face. We want to prove that it is not only us who are seeing these games and shortcomings in the investigation which are only hurting Yorgen.”

Galea Farrugia rebutted this submission, arguing that if there is a shortcoming there is no doubt that it would be brought to the attention of the jurors.

The defence made clear that it wants Fenech’s trial by jury to begin after the Constitutional case is decided.

The court said it will decree from chambers on these objections.

Defence claims prosecution withheld vital evidence

Mercieca made an extraordinary statement, accusing the prosecution of withholding vital evidence. “From the beginning the defence felt that the prosecutor didn’t have an interest in exhibiting all the evidence… Without this evidence, we cannot make our defence.”

The lawyer said that he had asked that this evidence be exhibited in the compilation of evidence “20 times.”

Keith Schembri, Johann Cremona and Kenneth Camilleri have not yet testified, he pointed out. Although the court had upheld the request that they be summoned, by June the prosecution had still not summoned them.

“We requested disclosure from the magistrate and the prosecution and received no reply,” Mercieca argued.

“The AG’s stratagems led to Keith Schembri’s cross-examination being suspended and the defence being stopped from cross-examining him by this suspension.”

Yorgen Fenech's defence believe that Keith Schembri (pictured) could be incriminated if Kenneth Camilleri is allowed to testify
Yorgen Fenech's defence believe that Keith Schembri (pictured) could be incriminated if Kenneth Camilleri is allowed to testify

A year and a half later Schembri hasn’t finished his testimony, said the lawyer.

“Kenneth Camilleri did not testify as he is under investigation, but a year and a half later he is still under investigation… And I know that he will incriminate Keith Schembri,” Mercieca said.

In July 2020, nearly six months after being issued, the presidential pardon handed to Melvin Theuma in return for his evidence was still not exhibited, Mercieca stated, adding that "eventually, it was."

Theuma’s phone recordings

Extractions from Theuma’s phone by defence-appointed experts revealed a goldmine of new recordings, said the lawyer, “nine of which give the lie to Theuma’s version.”

The prosecution objected to their being played in open court during the compilation of evidence, he said.

Theuma had attempted suicide in July 2020 after testifying and his cross-examination was cancelled. “Fast forward to 2021, he is summoned to testify and says that he had discarded the recordings.”

“Melvin Theuma has a pardon on the basis of what he told the police and we asked to know what he told them, but the AG said ‘no’. Where is the credibility of the ‘best friend of the accused,’ the Attorney General?”

Defence talks of phone taps that point to frame-up

Several applications filed by the defence had been objected to by the AG, protested Mercieca. In one, they had asked that the head of the Malta Security Services testify, pointing out that the phone intercepts had not been exhibited yet. “There are interceptions which show it was a frame-up,” said the lawyer. “What am I supposed to do? This is not a fishing expedition… How can I show it to jurors if it hasn’t even been shown to me?”

The defence lawyer said that he had only found out about other phone taps, on people suspected of involvement in the murder, from cross-examinations. “If they weren’t made legally, this makes an even bigger problem,” suggested Mercieca, telling the judge that “We want to be judged, but please do so fairly. We want a just process… A person deserves a defence and due process.”

Mercieca accused the AG of using “dirty tricks and tactics,” such as reserving further cross-examination to deny the defence the opportunity to conduct its own cross-examination.

Theuma in a ‘different light’

One witness, who cannot be named, had evidence and recordings of Melvin Theuma which would put his evidence in a different light, he said. These were on devices which were already in evidence.

But when that witness testified, the AG had asked no questions in cross-examination, said Mercieca. “The one question she was asked about Melvin Theuma, she refused to reply to in order to avoid self-incrimination.”

Melvin Theuma (blue mask) exiting one of the court sittings
Melvin Theuma (blue mask) exiting one of the court sittings

“She is indeed charged separately with money laundering, and it’s fair enough that she can’t testify about that, but why not about the recordings?” argued the lawyer.

When foreign experts are due to testify, the defence is notified the day before, but the prosecution know months in advance. When we sent for them again, they didn’t come as the Bill of Indictment was issued by then.”

‘Abuse of power’

“If this evidence is going to come out in front of the jury, then I am letting you know in advance that we are not going to do the jury,” the lawyer said.

“This is abuse of power. The law is being used to strangle the right to a fair hearing. It is extremely evident that the AG is protecting the interests of the State… to find Yorgen Fenech guilty at all costs.”

Attorney General: allegations of hiding evidence an "absolute lie"

Deputy attorney general Philip Galea Farrugia argued that all the evidence would be produced at the trial and that the murder inquiry was still ongoing.

He hit back at the defence’s allegations that some recordings had been kept hidden, saying this was an “absolute lie”. There had been an issue with file formats and software and had been explained to the compiling magistrate in court by an IT expert, he said.

With regards phone intercepts, Galea Farrugia said that these were intelligence and not evidence, and in any case, the Deputy AG said, he had no knowledge of them.

At the end of Friday’s hearing, the Caruana Galizia family filed an application asking for authorisation to receive copies of all applications filed before the Criminal Court.

The Attorney General did not object while the defence said that they would consider the request. Judge Grima made it clear that even in light of EU directives, the victim's status was to be safeguarded throughout the proceedings.

Charles Mercieca, Gianluca Caruana Curran and Marion Camilleri represented Fenech.

Deputy Attorney General Philip Galea Farrugia prosecuted.