Yorgen Fenech claims he gave police statement while under the influence of cocaine

Yorgen Fenech's defence claims that his police statement was given whilst he was in a 'vulnerable' state due to cocaine use • Defence asks court to appoint expert to report on the effects of cocaine use on a person being interrogated

Yorgen Fenech’s lawyers have asked the Criminal Court to declare 'inadmissible as evidence' the information Fenech had disclosed to the police whilst in a “vulnerable state”, after being promised that it would only be used in order to have his request for a presidential pardon considered.

The request was one of several Fenech’s defence counsel made in a lengthy sitting before the Criminal Court this morning.

Fenech is indicted over the murder of journalist Daphne Caruana Galizia, who was killed by a car bomb outside her home in 2017.

Lawyers claim Fenech was questioned in a vulnerable state because of his use of cocaine, no full disclosure of evidence to date

In an application filed this morning, Fenech asked the Criminal Court permission for, amongst other things, the appointment of an expert by the court to report on the effects that cocaine consumption has on the mind of a person being interrogated. Lawyer Charles Mercieca also requested full disclosure of all the evidence, both for and against the accused, be given.

Mercieca alleged that only 130 minutes of Melvin Theuma’s recordings had been disclosed to the defence out of some 60 hours of recordings. “There is evidence that he didn’t order, want or pay for the murder [of Daphne Caruana Galizia],” he said, accusing the prosecution of having “painted a reality that favoured them alone. Not only did you interrogate my client when he was vulnerable, not only did you not give him disclosure, but the information that was given was of select facts only.”

Several requests for disclosure had been made with regards to the recordings, said the lawyer. “Today we know the police had over 200 recordings in hand, not four [which it had disclosed to the defence]”. “There are other recordings that Fenech wanted to hear, but he has not been allowed to.”

In two days, the interrogation was over and Fenech was ready to be charged, Mercieca went on. “Of course this would be the case if you only let the accused hear what you want him to hear.”

Reading from Fenech’s interrogation transcript, Mercieca quoted him as saying “I always told you this homicide did not start with me, it was started by Melvin on his own initiative...”

The lawyer went on to allege that the police had recordings, mobile phone data and phone intercepts which showed that Melvin Theuma was being guided to entrap Fenech. “Are these not important?” asked Mercieca.

During the testimony of Edwin Brincat, the witness had been confronted with incriminating phone intercepts, which the defence had not been made aware of.

“We noted that they had phone intercepts which indicated a frame up, that Fenech didn’t want or pay for this murder.” Did we have to find out about these by accident? They should have been presented from day one.”

Neither was the defence given copies of the statements issued by former minister Chris Cardona, former OPM chief of staff Keith Schembri and others, the lawyers alleged. “Why weren’t we given copies…not even when we asked for them?”

“We are not saying that insufficient disclosure was given, we are saying that there was no disclosure as it painted a false picture of reality.”

“I cannot in good conscience say this statement is good evidence when the person giving it was manifestly misled…What other remedy can I have? At this stage I am requesting that it be declared inadmissible.” 

Pardon discussions not meant as evidence

Mercieca told the court that after Fenech’s arrest, there had been conversations as to whether or not he was eligible for a Presidential pardon.

Before these conversations, the agreement was that these statements could not be taken as evidence unless the presidential pardon is given, the court was told. Mercieca argued that the lawyers had spoken with the investigating officers and confirmed this beforehand. They had given Fenech legal advice with this background. “As a result we don’t have a statement that is in line with the Police Act or Criminal Code. It was not read out to him, nor confirmed by him, as it was not to be used as evidence against him.”

The parte civile had filed an application before the compiling court arguing that in the same way that Theuma’s statements were exhibited, so should Fenech’s. The AG had not objected to this request, said Fenech’s lawyers, adding that Fenech’s statement was not taken audiovisually, but had been noted down in writing by the police.

It was argued today that the statement taken during the process of a pardon, therefore enjoyed a different status at law. “They could not be brought as evidence against him. They were also exhibited dishonestly, after being taken under a condition. The first thing you do is use it against him in violation of the condition.”

The law states that Statements are invalid if taken in exchange for promises, added the lawyer.

The dishonesty was “startling”, Mercieca went on, claiming that the accused was first promised that the information would not be used to incriminate him, then had it used against him anyway and the prosecution not only did not object to, but actively encouraged its use.

“Not only was it obtained dishonestly but it was also presented in court dishonestly,” submitted the defence. “The AG had heard Keith Arnaud’s and Kurt Zahra’s testimony before several courts where they said that the information was taken down informally. The acts were in his possession for a month.

“The AG was part of the process of considering the pardon and knew that it should not be exhibited. So why did he allow it to be?”

With respect to evidence tendered by Melvin Theuma, Fenech’s lawyers argued it was inadmissible as the defence was deprived of the opportunity to cross-examine him, due to bill of indictment being issued. Likewise, the evidence given by Keith Schembri could not be used, said the defence, as his testimony was suspended and because the court had also granted him rights which were not envisaged in the law.

“Fenech asked for the pardon because he had a lot of information about corruption in the country which he wanted to reveal in order to be eligible for a pardon. He never confirmed that he wanted, paid for or was involved in the murder. To the contrary he had denied having any involvement. ‘What had she written about me to justify this? Ma tarax?’ he had said.”

Lawyer alleges Europol expert “misconduct”

At the start of today’s sitting before madam justice Edwina Grima, the judge noted that two applications, one for bail and another application containing several requests had been received. The judge remarked that she had already decreed similar requests.

The appointment of the expert has already been decreed, she said, going through the applications. The judge also asked about the relevance at this stage of the exhibiting of the Code of conduct of Europol employees. “Couldn’t it have been done before, during the compilation of evidence or during Fenech’s jury?  Lawyer Charles Mercieca replied that the bill of indictment had been filed by that time.

Mercieca alleged that the code of conduct had “disappeared” from the Europol website, but added that he had a copy, but said that this had to be exhibited by the prosecution.

Assistant Attorney General Philip Galea Farrugia argued that an expert is appointed in his personal capacity as an expert and not on behalf of Europol. The judge agreed with the AG.

Mercieca argued that the expert’s conduct invalidated his work and that the code of conduct was required to prove this. There was no legal disposition impeding him from exhibiting evidence about admissibility at this stage. The court disagreed, saying that the evidence stage will take place before the jury.

The Judge asked about the relevance to the case at this stage. “I cannot understand this application without you telling me, at this stage, what it is meant to achieve.”

Mercieca: “We are asking…we have been waiting for  months for these copies.”

The judge protested at this, telling the lawyer to direct his complaint to the courts’ administration, as her registrar was being shared with others and had missed appointments with the experts as a result.

The court was doing the best it could in the circumstances, said the judge, insisting that it was not prejudicing the accused’s rights. This statement was disagreed with by the defence, which said that the effects of this situation was “precisely that.”

The court announced that it would deliver its decree on the applications on 7 January.

Lawyers Charles Merceica, Gianluca Caruana Curran and Marion Camilleri appeared for Yorgen Fenech.

Deputy Attorney General Philip Galea Farrugia represented the prosecution in today’s sitting.

Lawyers Jason Azzopardi and Therese Comodini Cachia appeared parte civile