AG rubbishes ‘pathetic’ cocaine claims as Yorgen Fenech lawyers ask to nullify indictment

The Court of Criminal Appeal hears submissions on the appeal filed by Yorgen Fenech against the Criminal Court’s decision on his preliminary pleas - the final stage before trial

The deputy Attorney General has dismissed as “somewhat pathetic,” a claim by Yorgen Fenech’s lawyers to the effect that Fenech had been high on cocaine while releasing his statement to the police.

The remark was made this morning as the Court of Criminal Appeal, presided by Chief Justice Mark Chetcuti, Mr. Justice Giovanni Grixti and Mr. Justice Joseph R. Micallef, heard submissions on the appeal filed by Fenech against the Criminal Court’s decision on his preliminary pleas - the final stage before trial.

Assistant AG Philip Galea Farrugia drew a distinction between an appeal to a decision of the inferior courts and an appeal to a decision on preliminary pleas.

“The difference is that the Court of Criminal Appeal…would not be aware of all the facts that the magistrate would. But with regards to the preliminary pleas, the arguments would be purely legal, and not on the facts.”

He argued that the prosecution should be allowed to confront Fenech with declarations that he had made in his unsuccessful bid to obtain a Presidential Pardon. “The appellant has made declarations for the purpose of obtaining a pardon, therefore for executive purposes, they are not evidence, but we should be able to use them to control the witness.”

“The crux of the matter is whether they are judicial or extrajudicial confessions. In our opinion they are extrajudicial,” Galea Farrugia said.

“Why shouldn’t I, as a prosecutor, and the court in the interests of the truth, not be able to confront him with the fact that he contradicted statements,  which nobody had forced him to make - he wanted to make them himself.”

Charles Mercieca, one of the lawyers defending Fenech, pointed out that pardoned star witness Melvin Theuma had been administered a caution before releasing his statement. “They told him that what you are saying now can be used as evidence against you unless you are given a pardon. Theuma was granted a pardon, but Fenech wasn’t, therefore what he said cannot be used in the judicial process, because it was said on the condition that he be granted the pardon.”

Mercieca began quoting case law to support this argument but was cut short by the Chief  Justice, who told the lawyer that he was simply regurgitating the submissions that he had already submitted in writing, informing him that he had five minutes to conclude.

The lawyer duly moved on to his next argument, telling the court that “from the very beginning the defence had asked for testimony from certain individuals: Keith Schembri, Johann Cremona, Melvin Theuma, Matthew Caruana Galizia, the Commissioner of Police, the head of the Secret Service.” but these witnesses had not been called to testify.

“The defence also asked for phone intercepts, which are crucial to Fenech’s defence. The AG objected at every step.”

Several experts who had testified during the inquiry had not been asked to testify in the compilation of evidence. The lawyer argued that the experts should have testified about and exhibited data extractions from Daphne Caruana Galizia’s mobile phone, as well as Keith Schembri’s electronic devices.

“Experts that had been appointed to carry out an analysis of the victim’s phone, had exhibited their reports as part of the magisterial inquiry, but [the reports] are nowhere to be found in the inquiry file,” Mercieca submitted, adding that the defence had recently filed an application, demanding this evidence.

Complaining of the lack of a level playing field, the lawyer argued that Attorney General had “abused her powers” under the Criminal Code which granted her complete access to the inquiry, he said,

“The powers of the AG were used so that this evidence was not collected. It is unjust and contrary to the administration of justice. It leads to the nullity of the compilation of evidence.”

Both Keith Schembri and Matthew Caruana Galizia had testified but were not cross-examined, because the Bill of Indictment was issued in the meantime, ending the compilation of evidence.

“The Bill of indictment is what curtailed the process,” Mercieca said, once again claiming that the defence had not been granted full disclosure of the evidence held by the police, pointing to recordings of phone calls between Edgar Brincat and former Commissioner of Police Lawrence Cutajar which had not been exhibited during the compilation of evidence.

“Now the situation is that I am facing a jury with a possible life sentence, without the evidence. Brincat is the person who allegedly bribed the former Commissioner to grant a pardon to Theuma. 

“The remedy is the annulment of the Bill of Indictment,” said the lawyer.

Mercieca then attempted to quote a legal scholar, who had been quoted in the defence’s written submissions but was cut off by the Chief Justice who pointed out that the court had allowed him to speak for 15 minutes beyond his allotted time.“I think we know how to read,” added Mr. Justice MIcallef, half-jokingly.

In his counter-arguments Deputy Attorney General Galea Farrugia pointed to case law which established the grounds on which the Bill of Indictment could be declared null, saying that they were not present in this case.

“There is no inconsistency between the facts and what is contained in the Bill of Indictment and this clearly emerges from the facts,” said the prosecutor, adding that the court had also taken the time to go through the recordings itself and had ultimately declared that there was no illegality.

The prosecutor rubbished the defence’s claim that Fenech had been in a drug-impaired mental state when he had released his police statement. “That two years after [the statement was issued], they claim that the defendant had been under the influence of cocaine when he released his statement, despite him having been medically examined before, is somewhat pathetic,” opined Galea Farrugia. “If anything they can argue this during the trial.” 

The court adjourned the case to June 21 for judgement.

Lawyers Therese Comodini Cachia and Jason Azzopardi are representing the Caruana Galizia family in the proceedings, as parte civile.