Yorgen Fenech attempts to sow doubt on integrity of mobile phone data in final pleas

Yorgen Fenech defence attempts to sow doubt on integrity of mobile phone data as judge hears final preliminary pleas, with judgement expected for December

Yorgen Fenech
Yorgen Fenech

The judge who will be presiding Yorgen Fenech’s trial announced that she would be delivering her judgement on his preliminary pleas in December at the end of a pre-trial hearing this morning. 

During today’s sitting, Yorgen Fenech’s lawyers once again argued that the evidence disclosed to them was incomplete, claiming that amongst other things, electronic devices belonging to Keith Schembri and Daphne Caruana Galizia had not been exhibited in the acts of the case.

The defence also appears to be opening the door to the extraordinary suggestion that evidence might have been planted in the accused’s mobile phone.

“There is data in the mobile phone that Fenech is saying he had never seen,” submitted lawyer Charles Mercieca, repeating his claim that his client’s wife had received a phone call from Fenech’s phone at a time when Fenech was already in custody. “All these problems in the chain of custody, this leads me to be suspicious,” he said.

Mercieca told judge Edwina Grima that the data extracted during the magisterial inquiry was “undermined” and that exhibits had mismatching hash data, which raises doubts about the data’s integrity. “To date we cannot explain why this is so.”

The defence had asked for the important evidence, he said, but it had been given irrelevant exhibits among the evidence, including audio CDs of nursery rhymes, ostensibly seized from Fenech’s residence. “But the mobile, the laptop belonging to Keith Schembri, the mobile phone belonging to Daphne Caruana Galizia, these are necessary,” he said.

In brief submissions rebutting the defence this morning, Deputy Attorney General Philip Galea Farrugia argued that the issues being raised by the defence could only be addressed during the trial, not at the preliminary pleas stage. “Fenech is saying that there is content in his phone that wasn’t there before. This is a fact that must be decided on by the jurors. How can this court decide on it?...  In truth there is nothing to stop the court from passing judgement on the pleas with the evidence already in hand.”

The defence’s arguments were evidently frivolous and vexatious as today’s proceedings had been intended to hear the preliminary pleas, submitted the prosecution. “The pleas are already made. Where is the potential breach? We are in such an early stage and the court has said five or six times today that the defence will have all the evidence in hand before the jury.”

He argued that a request by the defence to refrain from concluding their oral submissions on their preliminary pleas today, despite having been ordered to by the Court, was purely a delaying tactic, as the pleas in question relate to alleged issues with the chain of evidence of certain devices. Galea Farrugia argued that Maltese case-law has invariably laid down that such issues are to be dealt with at trial stage and not at the preliminary plea stage. 

“With all due respect, if Yorgen Fenech is alleging that certain data from his mobile phone is 'missing', he can choose to give evidence during the trial and explain this to the jurors - with the jurors then deciding whether to believe him or not. But…the defence is expecting the Court to expunge Fenech's mobile phone from the acts before trial stage, on the basis that according to what their client told them - as opposed to him giving evidence under oath during the trial…there is 'missing' data.” 

After hearing the defence explain why, in its opinion, the evidence is untrustworthy, Galea Farrugia made it clear that he didn’t agree with Fenech's allegations, but, that in any case, these issues cannot be decided by the judge at this stage. 

These arguments were repeated many times as the debate seemingly went around in circles, with the defence claiming that there were missing items in the evidence, and the court pointing out that the defence had been given access to all the evidence, also pointing out that today’s sitting was only intended for submissions on the remaining preliminary pleas.

The defence subsequently declared that it had concluded its pleas. 

It is unclear whether Fenech’s legal team intends to file a constitutional reference on this matter.

The judge adjourned the case to December for a judgement on the preliminary pleas highlighting that the defence was being given two full months to view the exhibits in question in court, in the presence of the AG and the court expert who analysed them. The defence was also authorised to make a further note of submissions on the remaining pleas during this two month time window.

Lawyers Charles Merceica, Gianluca Caruana Curran and Marion Camilleri are Fenech’s defence counsel.

Deputy Attorney General Philip Galea Farrugia is representing the prosecution in these proceedings. 

Lawyers Jason Azzopardi and Therese Commodini Cachia are assisting the Caruana Galizia family.