MaltaToday cleared of contempt of court, magistrate stresses need to update law

Two cases of contempt of court filed against MaltaToday after the publication of extracts from voice recordings exhibited in the compilation of evidence against Yorgen Fenech have been dismissed

Middleman: Melvin Theuma
Middleman: Melvin Theuma

Two cases of contempt of court filed against MaltaToday after the publication of extracts from voice recordings exhibited in the compilation of evidence against Yorgen Fenech have been dismissed, with the court urging the legislator to update the relevant sections of the law.

The recordings reported by MaltaToday revealed that Melvin Theuma, self-confessed middleman in the assassination of journalist Daphne Caruana Galizia, had been forewarned of an FIAU investigation into his money laundering activities.

They also showed that Theuma had leaked information that Vincent Muscat, il-Kohhu, one of the triggermen in the murder, had requested a pardon in return for information. One story revealed how Theuma was told that Castille would pin the assassination on fuel smuggling suspect Darren Debono and that Theuma was being briefed on developments in the police investigations. Another showed that Edwin Brincat, known as il-Gojja, had coached Theuma on what to say whilst recording his conversations with Fenech.

The application filed by the Director of Courts claimed that MaltaToday’s publication of the recordings contravened a court order which prohibited the publication of the recordings or their transcripts on pain of contempt of court proceedings.

But both MediaToday’s executive director Saviour Balzan and MaltaToday’s executive editor Matthew Vella had told the court that most of the information published by MaltaToday had not emerged in court at that time. This meant that they were not struck by the ban on publication, as this could not have a retroactive effect, argued the defence.

Vella emphasised that neither he nor Balzan had never been in possession of any transcripts relating to the sitting and that he had based the reports on recordings of the police interrogation, not recordings or transcripts of the conversations between the suspects.

In his decision to acquit the editors, Magistrate Victor Axiak observed that while the issue of contempt of court was regulated by dispositions of civil law and was administratively pursued by the Registrar, they were criminal proceedings by virtue of a dedicated section of the Criminal Code and were punishable by imprisonment. 

“This distinction is fundamental, not least because the level of proof that must be reached is not that required before courts of civil jurisdiction (that is, on the balance of probability), but is that required in cases of a criminal nature, that is that evidence must be such as to supersede reasonable doubt.”
The magistrate noted that three separate orders had been issued during the compilation of evidence proceedings against Yorgen Fenech. The first, issued on January 30 2020, prohibited the publication or dissemination of documents exhibited in the case that had not been read out in court. This order was then extended on February 20, to cover the publication of the recordings and transcripts which had not been played in court.

Later that year, in July, a third order had been issued, ordering that three voice recordings be played in court in a sitting held behind closed doors. This order was intended to protect the rights of third parties who were mentioned by name in the recordings but who had nothing to do with the investigation, said the court.

But on 13 August, the court presiding over the compilation of evidence, after being made aware of the publication of what it believed to be extracts of transcripts from the voice recordings in question, had deplored this publication, ruling that this amounted to contempt of its authority.

The magistrate quoted a decree made by Criminal Court Judge Edwina Grima in November 2021, which had been issued over the publication of a number of chats by author Mark Camilleri. In that decree, the judge had observed that the procedure laid down by the law for the publication of the order prohibiting publication was not followed. Therefore there was a doubt as to whether the person accused of breaching it had been duly notified with the order.

The court observed that the only article of the law which could be applied to bind third parties from publishing the voice recordings and related transcripts, also required a copy of the order to be affixed to the outer door of the courtroom where the case was being heard.

However, the compiling magistrate had declared the defendants in contempt under another section of the Criminal Code, which only binds court officials participating in the proceedings.

Magistrate Axiaq observed that the relevant sections of the Criminal Code had not been updated for over fifty years. “In the year 2022, it hardly makes sense that an order banning publication be publicised only by being affixed to the door of the courtroom,” said the magistrate, adding that the legislator should “seriously consider” amending and expanding this article.

“The court feels that at least such an order should be formally served on our country’s media companies,” the magistrate added. They would then have the ability to protest against it and request its revocation. “Even better would be a system where the general public would be made aware of the Court’s order… by having it published on the court website and, if necessary, in leading newspapers.”

With regards to the merits of the case, the court declared that it was not convinced by the defendants’ claim that the transcripts of the voice recordings at issue were not the source material for the articles in question. “At least in certain parts of the same articles, it is clear that the information was being obtained from the transcripts themselves. This is behaviour which, although not against the law in the circumstances, could have easily translated into prejudice against the interests of justice.”

Although the defendants were acquitted, there was a sting in the tail, with the magistrate concluding that “The defendants would do well to ask themselves whether, through the publications in question, they were truly serving the public interest or not.”

Lawyers Veronique Dalli and Andrew Saliba assisted the defendants.