Recording 'suggests other murder masterminds that do not involve Yorgen Fenech', defence claims

A court has heard a surprising claim by Yorgen Fenech’s legal team, who told the newly reopened compilation of evidence against Fenech, that the Italian authorities had made reference to a recording that, they say, hint at “possible masterminds” who had paid for Caruana Galizia’s murder and had no connection to their client. 

The claim emerged in a sitting last Friday, as the compilation of evidence against Fenech resumed before magistrate Rachel Montebello.
Lawyer Charles Mercieca told the court that the conversation - ostensibly recorded on a smartwatch- seemed to have involved two Maltese persons, one of whom is recorded telling the other that he had paid around €40,000 to “get rid of Caruana Galizia”.  No other details about this alleged recording emerged in the sitting. The existence of the recording in question is understood to have been inferred from correspondence with Italian prosecutors, in which a reference is made to a recording submitted to Italian authorities.

In that sitting, during which the defence also tried to suggest that Fenech had not applied for a Presidential pardon for his involvement in the murder, only for the court to point out that it was documented in the acts of the case, Mercieca insisted that Fenech had consistently denied being the mastermind behind the murder "from his very first statement to the police." 

The defence said that it had only learned of this recording when they were sent an updated copy of the acts of the murder inquiry, he said, by which point the time frame for filing pleas and adding to the list of witnesses had long expired.

Lawyers Anthony Vella and Godwin Cini, prosecuting on behalf of the Office of the Attorney General informed the court that they had received the document through Eurojust and had exhibited it in the acts of the inquiry. They were unable to recall the date on which it had been received, they said in reply to a question from the defence, adding that they would have to check the case file.

Fenech’s lawyer submitted that the prosecution had to present all evidence for and against the accused, should the exhibits have been received while the compilation of evidence was still ongoing. 

The defence’s request to add several related witnesses to their list was upheld by the court.

The lawyers also claimed that a report by foreign court experts who compiled a number of possible motives for Caruana Galizia’s killing had not been handed over to them by court experts, and was being held by Europol.

The basis for that report was the data extracted by former Europol expert Marinus Martin Van Der Meij from a forensic clone of Caruana Galizia’s mobile phone. Van Der Meij had previously told the court that he had handed over a physical copy to the inquiry led by then-magistrate Anthony Vella, in May 2018.

But Fenech’s lawyers say they had not been given a copy of the data, telling the court that neither were they able to find the document in the case file.

Van Der Meij and another former Europol expert, Konstantinos Petrou, have been ordered by the Criminal Court to exhibit a copy of the report on several occasions, Mercieca said, adding that they had still not complied and now no longer worked at Europol.

Lawyer Anthony Vella from the AG’s office told the judge that Europol had suggested sending an encrypted copy of the report through the police via the Sienna system. The court could then appoint an expert to download it and Europol would send the appointed expert the decryption key.

Madam Justice Edwina Grima disagreed with the complex process suggested, telling the AG that reports prepared by court-appointed experts should not be exhibited by anyone but the expert in question and that it was unheard of for the Criminal Court to have to go through Europol to obtain a report.

“The court deplores the fact that the report of a court expert appointed by the inquiring magistrate is in the hands of Europol, a third party extraneous to the case and that the court is being constrained to request the agency for a copy,” minuted the judge.

Besides ordering both experts testify in person, the judge also ordered that a Europol representative must testify to explain why a report drawn up by a court-appointed expert was in possession of the agency.

Martin Bajada, who had been appointed to carry out several forensic examinations of digital devices was next to be cross-examined. Mercieca asked him about what had happened to Caruana Galizia’s laptop. Bajada told the court that it had been handed over to the German authorities in the immediate aftermath of the murder. The authorities in Germany had later informed the inquiring magistrate that they no longer were in possession of the device, but had “given it back to whoever had taken it to them.”  They did not say who had done so.

Fenech’s lawyer showed Bajada correspondence between the German and Maltese authorities, which had taken place in terms of a European Investigation Order related to the murder.

Bajada read out the document, which he told the court that he had never seen before, from the witness stand. He said the German prosecutor had informed Malta that “the family of Ms Caruana Galizia asked to have the data saved on the laptop of the deceased deleted.” 

The judge ordered Bajada to hand over a copy of all data extracted from Caruana Galizia’s cloned mobile phone. The court’s copy was to be held under seal and only be accessible to the court, with the parties only receiving a redacted version that did not reveal the names, numbers, dates and times of communications with the murdered journalist’s sources.

AG lawyers Anthony Vella and Godwin Cini are prosecuting.

Lawyers Charles Mercieca, Gianluca Caruana Curran and Marion Camilleri are assisting Fenech. Lawyers Therese Comodini Cachia and Jason Azzopardi are assisting the Caruana Galizia family as parte civile.