Yorgen Fenech pre-trial: IT expert not summoned to testify about all his tasks

A court-appointed IT expert has told the judge hearing preliminary pleas before Yorgen Fenech’s trial, that the prosecution had not summoned him to testify about all the tasks he had been appointed to do by the inquiring magistrate.

The court expert in question, Martin Bajada, was summoned to the stand in a sitting before Madam Justice Edwina Grima on Friday. Fenech is being charged with masterminding the murder of Daphne Caruana Galizia in October 2017.

Yorgen Fenech’s defence lawyers, Charles Mercieca and Gianluca Caruana Curran, had filed an application requesting the court summon Bajada to testify, contending that a clone he had made of Daphne Caruana Galizia’s mobile phone was not passed on to Interpol.

They alleged that handwritten notes in the acts of the case showed that, in September 2018, Bajada had withdrawn the clone of the victim’s mobile phone from evidence.

Responding to the allegations in court earlier today, Bajada explained that he had fulfilled the terms of his appointment in the inquiry, adding that he had also been appointed as a court expert to carry out other tasks, which he had not testified about. “The reason for this is simple, it is because I was never summoned to testify about them.”

Bajada explained that in terms of one of his court appointments, he is not permitted to submit his completed report until “certain things happen,” which he said he could not give more details about.

Answering a question by defence lawyer Charles Mercieca, Bajada explained that during the course of the inquiry led by magistrate Neville Camilleri, some experts had dropped out and so a new nomination was drawn up by the court for Bajada. Under the terms of this appointment, he was not permitted to submit and testify about his assignment at this stage of proceedings.

However, Bajada added that had he been asked to do so by the prosecution during the compilation of evidence, he would have been able to testify about this assignment.

Mercieca told the judge that in fact, this had been requested by the defence during the compilation of evidence, but the AG had replied to this request by stating that the experts in question were not to testify about their reports once they completed their assignments.

“I handed it to Europol and that’s all,” Bajada said, with regards to the mobile phone in question. After looking at the note on the envelope, containing a description of the exhibit, he noted that it did not specify which mobile phone it contained.

The court asked the defence lawyers how they had arrived at the conclusion that the device in question was the same one withdrawn. Mercieca replied that the defence had worked its way back from testimony and reached the conclusion by a process of elimination.

Whilst on the stand Bajada noticed that the signature on the exhibit was not even his.  

Bajada was handed a number of exhibits from 2018 in today’s sitting. The evidence bags were not his, he observed, but added that for some reason there was his signature on them.

“The report [attached to the exhibit] deals with the meetings I had with the inquiring magistrate during the time I was working on the case. This is something else. The signature is mine but I have no recollection [of signing it].

“The correct way to handle an exhibit is to open it and see it. This has been handled by someone else,” Bajada said. The expert questioned the chain of custody of some of the items which had been exhibited in evidence.

“I had carried out some work on it [the phone], I don’t remember what, and then re-sealed it. Now I am seeing that the evidence bag has been opened from the other end and stapled shut.”

Bajada filed a note in court, stating that he had handed the cloned phone to Europol in 2017. In September 2018 he had opened the evidence bag delivered from Europol and had marked the envelope. 

“There must have been a decree somewhere authorising the bag to be opened,” Bajada said. “But the second envelope [containing a hard disk] I never even touched,” he said.

The court dictated a note observing that one of the exhibits mentioned in the accused’s application could not be found in the acts of the case. The judge ordered the registrar of courts to track down the missing exhibit.

Cross-examined by Mercieca, Bajada repeated that the handwriting on the envelope containing the exhibit was not his and that he had returned the exhibit after examining it.

Looking at the exhibit in court this afternoon, Bajada also observed that he had written a note as to why he had opened the evidence bag, namely to carry out Whatsapp and Google extractions. He recognised the signature of inquiring magistrate Anthony Vella on the exhibit, although his own signature was not present.

Asked by the lawyer as to whether he had seen any tears in the evidence bag when he had examined it. “Definitely no, as I would have remarked about it.”However, other court-appointed experts might have worked on the exhibit, as it had also formed part of the evidence exhibited in the case against the Degirogio brothers, as well as other inquiries, he said. “I cannot testify about what has become of the extractions as they are part of an inquiry.”

Bajada had been tasked with carrying out specific extractions of WhatsApp data, he said. “During the Degiorgio compilation of evidence, I didn’t examine it [the phone], I had only testified about the cloning procedure.”

Meanwhile, the Yorgen Fenech inquiry had also continued and other experts had also examined the exhibit, he said.

The case was adjourned to 22 July to hear submissions on Fenech’s latest application for bail.