Caruana Galizia murder investigator exhibits full list of persons interviewed by police

Police Superintendent Keith Arnaud has been ordered to show Yorgen Fenech's lawyer's a list of all individuals which the police had requested phone data for, in the first days of the investigation

Police Superintendent Keith Arnaud (first from left)
Police Superintendent Keith Arnaud (first from left)

The police Superintendent leading the investigation into the murder of journalist Daphne Caruana Galizia has been ordered to show the lawyers defending the man indicted for conspiring to have her killed a list of all individuals which the police had requested phone data for, in the first days of the investigation.

Superintendent Keith Arnaud was summoned to the stand by Yorgen Fenech’s lawyers in a constitutional case in which Fenech is claiming that the police had failed to grant him full disclosure of the evidence against him at the time of his arrest.

At the start of today’s sitting before madame justice Audrey Demicoli, the superintendent exhibited a full list of the people interviewed by the police as part of the murder investigation in reply to a request previously filed by the defence.

Fenech’s lawyers asked about whether MSS had placed Mario Degiorgio’s house under video surveillance. This was true, said the witness, explaining that Melvin Theuma was a frequent visitor there. The surveillance did not return any actionable information, he said. “All we would see is Melvin going to Degiorgio bringing either food or money...”

The lawyer asked whether he remembered if this method of surveillance had been used on other people as part of the investigation, in particular Melvin Theuma. “If there was, it was very isolated, but I don’t remember that there were,” replied Arnaud. “As far as I know, it was only Mario Degiorgio. In 2018 the main person of interest [to the investigation] was Melvin Theuma.”

Mercieca moved on to ask about device extraction and forensic images of devices which had been collected during the police investigation but which were not exhibited in the inquiry. 

The lawyer suggested that in 2019, the police already had a copy of Fenech’s phone as part of the investigation into the murder, but Arnaud denied this. 

“What happened is that we had Europol appointed as experts in the inquiry and we had immediately requested they pass us any useful information they had extracted so far…once they had access to the devices, they quickly passed on to us what they could, partial extractions. The rest they took back to The Hague to carry out full extractions on and then passed them on to us.”

Mercieca suggested that Fenech’s phone and its data had not been exhibited in the inquiry, but the extracted data was already in the police’s possession around the end of November 2019.

“Yes, I had a partial extraction from Europol, but it was not part of the investigation. It was handed directly to me. I don’t know the exact dates.”

Mercieca said that these experts had testified that the phone was in their possession in 2020. Arnaud replied that he did not remember whether it was in his possession before Fenech’s arrest but directed the lawyer to testimony he had given previously when his memory was fresher. “The phone was seized from [Yorgen Fenech’s] boat and handed directly to the court expert. After that, it was handed directly to Europol,” the investigator explained. Europol had later handed it to Arnaud.

“In a sitting on 19 December 2019, you had referred to a period before Fenech’s arraignment in November 2019, during which you had an extraction of his phone data in your possession. What other phone data did you have in your possession?” asked Mercieca.

Arnaud replied that it was closer to January 2020 that he had more data in his possession. It was around the time when the Task Force was set up, and he had other extractions in hand at this time. 

Mercieca pressed on, suggesting that self-confessed middleman, Melvin Theuma, had already passed on his voice recordings to the police at the time of Fenech’s arrest. Arnaud confirmed this, saying that he had in fact played 4 or 5 recordings to Fenech in the presence of his lawyers.

Mercieca listed a number of devices that the police had in their possession at the time, asking whether Arnaud knew of any others.

Arnaud said that on the same day as Theuma’s arrest, some of his family members and Edgar Brincat had also been arrested and the extractions of their phone data were eventually passed on to him. But at the time, priority was being given to finding the recordings that the police knew Theuma had.

The officer confirmed to the court that no other electronics related to the investigation were still in his possession.

The lawyer also asked Arnaud about the mobile phone data collected as part of the investigation. 

After receiving direction from the court, Arnaud explained how in the first few days after the murder, the police had been “lost” and had requested call data relating to several individuals as part of the investigation. However, these individuals were found not to have had any part in the murder; subsequently, this line of inquiry was superseded by crime scene evidence, said the superintendent.

Arnaud resisted the lawyer’s request to hand over this discarded data. “I am not comfortable handing over information relating to third parties we checked on in the first days of our investigation and who were found not to have featured further on.”

The judge also pointed out that doing so could also constitute a violation of data protection legislation.

Mercieca suggested the superintendent be ordered to exhibit a list of the names of those spoken to instead, but this suggestion was stopped by the judge, who pointed out to the lawyer that it was clear that this data was not used further, as these people did not feature in the investigation.

The lawyer, however, insisted that this exercise had to be carried out by the court itself and not the investigating officer, pointing out that his client’s original complaint dealt with failure to disclose evidence.

In view of this, the court ordered Superintendent Arnaud to exhibit this information animo ritirandi (temporarily before being returned), in a sealed list, accessible only to the court and the lawyers of the parties. 

The superintendent said he would follow the court’s orders, but stressed that the police had already exhibited all the evidence which was relevant to the investigation. “Those persons who were checked on in the first days absolutely did not feature anywhere else in the investigation.”

“The investigator explained that the rest of the evidence did not implicate third parties, nor did it exonerate the accused,” the investigator explained.

Fenech’s lawyers had also wanted the head of Malta’s Security Services (MSS) to testify, but the MSS head had replied to the effect that he could not do so. Mercieca told the court that he was not asking MSS to give information about the contents of the intercepts yet, but only about who was calling who and when. “I’m only asking for information which we have a right to. But that he tells us, ab initio, that he is not going to comply, tells us that he has a carte blanche to do whatever he wants.”

State Advocate lawyer Maurizio Cordina argued that the constitutional cases which Mercieca had cited to support this request only dealt with the exhibition of warrants relating to phone taps and not the phone taps themselves. “Here we are going into territory which could hamper the work of MSS,” warned the lawyer.

The court told the defence to make its request in the form of a court application, after which it would rule on the matter.

The case continues in July.