Police Commissioner tells court phone intercepts used during il-Gojja interrogation were given back to MSS

Police Commissioner Angelo Gafa’ has insisted in court that the police could not exhibit phone intercepts used during the interrogation of Edwin Brincat il-Ġojja as they had already been handed back to the Malta Security Services.

Gafa’s cross-examination continued before Madam Justice Audrey Demicoli as the Constitutional case filed by Yorgen Fenech, in which he is claiming that the police failed to give him full disclosure of the evidence against him, thus breaching his right to a fair trial, resumed on Tuesday.

Fenech, who is indicted for his part in the 2017 car bomb murder of journalist Daphne Caruana Galizia, had filed the Constitutional case after Magistrate Rachel Montebello had denied a request for the exhibiting of call recordings between Melvin Theuma and key players in the murder plan in December.

The decree stipulated that evidence can only be requested after testimony is heard by the court. But she also decried what appeared to be a fishing expedition by the defence to determine whether in fact the indicated phone conversations were actually spied upon by the MSS.

The recordings requested by the defence concern alleged phone calls between Melvin Theuma, lawyer Arthur Azzopardi and Edwin Brincat, known as il-Ġojja. 

“I am informed that the defence never asked for the head of MSS or Arthur Azzopardi to testify in the compilation of evidence…” Gafa said in reply to a series of questions put to him by Gianluca Caruana Curran, one Fenech’s lawyers. The lawyer argued that the investigating inspector had testified that he was not in possession of the recording of a call between Azzopardi and Theuma.

“Whatever action was taken, was taken by MSS, facilitated by the Police. The police never had access to play the recording but the information we were given was that it contained nothing of relevance to the current case,” Gafa said.

Caruana Curran read out a part of the decree, in which the court had made it clear that if the police had any information which was relevant to the case, it was obliged to disclose it to Fenech.

“At no stage was I informed that Azzopardi or the head of MSS were summoned to testify to exhibit these recordings during the compilation of evidence,” Gafa replied. Caruana suggested that this was not true, but the witness pointed out that the 17 page decree had stated that the defence could not summon them as witnesses.

The police used a number of methods to obtain information, but had no power to carry out intercepts, explained the commissioner. “Only MSS can do this.”

The only intercepts used by the police were those utilised during the interrogation of Edwin Brincat, insisted Gafa, pointing out that the court had decreed that “the relevant part of the recordings were already made available to the defence.”

The lawyer then made reference to another pronouncement by the court dated December 28, in which it had also ordered the police to exhibit recordings of calls involving Brincat.

But Gafa insisted that it was impossible for the police to comply with the court order. “The prosecution had made it clear that at that stage it had no intercepts in their possession as they had already handed them back to MSS.” He again referred to the decree which stated that the relevant parts of the recording had been disclosed to the defence.

Gafa added that the recording had been played in full during interrogation and that the defence was already in possession of an audiovisual recording of this.

Fenech’s other lawyer, Charles Mercieca told the witness that the audio in that recording was not of good enough quality to make out what was being said. 

“The police could never hand over something which wasn’t in their possession at that time,” insisted Gafa.

He was asked why the police “were so keen” to hand the recording back to MSS after using it during Brincat’s interrogation. The Commissioner replied that this question ought to be directed to the investigating officer.

Mercieca referred to email correspondence requesting “general disclosure.”

Gafa replied that it only referred to the extraction of data from Keith Schembri’s mobile phone.

Mercieca hit back, pointing out that the Commissioner had not answered a judicial protest in this regard, either.

The lawyer asked about the 24 December decree in which the court had ordered general disclosure of evidence, which covered intercepts and other evidence gathered in the investigation, including call profiles, CCTV, data extractions and statements by suspects in the investigation. 

“Had you spoken to your subalterns about evidence gathered in the investigation?” Merceica asked.

“When I asked what disclosed, the information I was given was this: the intercepts were not disclosed and neither was the recording between Arthur Azzopardi and Melvin Theuma or the data extracted from Keith Schembri’s mobile phone,” he said, explaining that the court decree had also stated that ongoing investigations could prevent disclosure.

The court, however, said that this was a question to be put to the actual investigators and not the Commissioner.

Caruana Curran asked about a court decree ordering the exhibition of data extracted from Keith Schembri’s mobile phone, which State Advocate Chris Soler had said he would comply with. Caruana Curran asked what had happened after the State Advocate had said this.

Gafa said that an appeal had been filed, and a court decision was expected later this month.

Caruana Curran confronted the commissioner with the fact that the law stated there was no appeal from acquiescence to a court order, but was overruled by the judge.

The defence lawyer then asked Gafa to name the individuals whose phone had been tapped. Gafa said he had been informed of the intercepts involving Theuma and Brincat, but pointed out that these phone taps were made before his time as Commissioner.

Madam Justice Audrey Demicoli, reading a document in the case file, observed that the Registrar of the Criminal Courts had refused a summons. She ordered this observation be notified to the court CEO and the Registrar of the Civil Courts so that they could explain to the court why the summons took from four days to be served to someone in the same building.