Judge rejects Yorgen Fenech's bid to remove lead investigator from Daphne murder case, critical of Keith Schembri

Judge Lawrence Mintoff has rejected Yorgen Fenech’s request to remove Assistant Commissioner Keith Arnaud from the investigation into the murder of Daphne Caruana Galzia.

The 155-page judgment was handed down today in the Constitutional case that Fenech had filed against Arnaud, the Commissioner of Police, the Attorney General and the Home affairs Minister.

Fenech, who is charged with masterminding Caruana Galizia’s murder, had accused Arnaud of having passed on information to former OPM Chief of Staff Keith Schembri about the progress of the murder investigation, claiming that Schembri had found Arnaud’s wife a government job in return.

The judge observed that Fenech had claimed that his fundamental rights had been breached by what he said was a lack of independence and impartiality in the investigation, addressing his complaint “not at every member of the police force” involved in the investigation, but specifically to Inspector, today Assistant Commissioner, Keith Arnaud.

Superintendent Keith Arnaud (striped tie) exiting the law courts in this file photo

“In his initial application, the applicant states that the investigation regarding the homicide of Daphne Caruana Galizia was being conducted by Inspector Keith Arnaud, the Police Commissioner, and other officers within the Police Force. However, the claimant points his finger only at the Inspector, now Assistant Commissioner Arnaud, and alleges Arnaud's involvement in the investigation in question, impinges on the independence and impartiality that every police investigation should enjoy, and asking the Court in order to even order that Keith Arnaud should in no way be allowed to participate in the investigation in question, and that every act and decision taken in the same investigation be reviewed by whoever replaces the same Inspector Keith Arnaud,” the judge observed.

It is highly disgraceful that Inspector Keith Arnaud, because of other people’s conflicts of interest, was put in this pitiful position, where that which he was officially and confidentially reporting on during briefings at the OPM was revealed in the most villainous and disloyal manner Judge Lawrence Mintoff

Mr Justice Mintoff also pointed out that the police investigation into the murder of Daphne Caruana Galizia had led to convictions for the three assassins, as well as separate ongoing proceedings against three other men who are accused of procuring the bomb used to murder the journalist. The investigations had also led to Fenech being indicted with having commissioned the killers, said the court.

Besides this, Melvin Theuma, after receiving a presidential pardon, had admitted to being the middleman between Fenech and the three assassins, who are currently serving prison sentences after having admitted to their part in the murder.

Fenech’s opinion changed after second pardon request rejected

The judge also noted that Fenech’s opinions about Arnaud had only changed after his second pardon request was rejected. He had not complained about Arnaud’s involvement upon his arrest, despite the fact that the reasons for which he requested the investigator’s removal were already known to Fenech at the time.

In fact, Fenech had started requesting that Arnaud be removed from the investigation after his two requests for a presidential pardon were rejected, and after the presidential pardon had been granted to Melvin Theuma. “Fenech began to say that he was feeling betrayed by Keith Schembri, who had allegedly promised to help him obtain a presidential pardon. But when his request for a presidential pardon was still being considered, and Yorgen Fenech was making his voluntary statements with the Police, the applicant had words of praise for Inspector Keith Arnaud and Inspector Kurt Zahra, so much so that he began to say that he trusted them.”

Fenech wanted a pardon in return for information that was mostly hearsay

Fenech’s request for a presidential pardon had been based on information which Fenech had provided to the police, but the judge observed that the information was, for the most part, hearsay evidence which could not be corroborated by witnesses or other evidence and which could not lead to a conviction. This had led the police to recommend that Fenech not be pardoned.

Fenech had testified in the constitutional case, telling the court that former OPM Chief of Staff Keith Schembri and Keith Arnaud had a “close” relationship and that Schembri was receiving real time updates about the progress of the investigation from Arnaud, starting just a few days after the murder.

Yorgen Fenech wants us to believe that, in this most naive senseless way, one of the leading businessmen in the country ended up unwittingly involved in the financing of Daphne Caruana Galizia’s assassination Judge Lawrence Mintoff

The alleged murder abettor had also testified about Schembri having claimed that Arnaud had told him about the planned police raid on the Marsa potato shed in December 2017, and about the discussions regarding Vince Muscat’s request for a pardon, as well as about Fenech’s phone being tapped and about the planned date of Melvin Theuma’s arrest for money laundering and illegal gambling.

This did not impress the judge, however.

“The court observes that Yorgen Fenech, upon his own admission, had been – for over two years – allegedly receiving this restricted and sensitive information about the police investigations into the murder of Daphne Caruana Galizia, both from the Assistant Commissioner of Police Silvio Valletta and from Keith Schembri.

Obviously Yorgen Fenech never complained about this, as long as this information was advantageous to his interests, in spite of the fact that this revelation of confidential information could endanger those same police investigations and could have even exposed the lives of police and army officials to great danger.” 

In his testimony, Fenech had tried to give the impression that Arnaud would provide this information to Schembri for ulterior motives or because of their “closeness” and insinuated that in doing so, Arnaud had been influenced by the former Chief of Staff and had a conflict of interest, “because, according to what Schembri allegedly told him, he had arranged a job for [Arnaud’s] wife with a government company,” reads the judgment.

But it goes on to note that when cross-examined about this claim, Fenech had clarified that Keith Schembri “might have also” obtained this sensitive and confidential information about the investigation during official briefings at the Auberge de Castille, “and not head to head, directly from Keith Arnaud.”

Arnaud had no relationship with Schembri

The evidence showed that Arnaud had no relationship with Keith Schembri and neither had he ever set foot inside Castille before Daphne Caruana Galizia was killed, said the judge.

Arnaud’s first encounter with the former OPM Chief of Staff had been when former Assistant Police Commissioner Silvio Valletta had taken him with him for one of the briefings at the OPM, prior to the first arrests in connection with this case, in December 2017.

Former OPM chief of staff Keith Schembri: Yorgen Fenech alleged that Arnaud was compromised because Schembri had found his wife a government job, something the court gave short shrift to

When, by order of the court, Silvio Valletta was forced to relinquish the leadership of this investigation, Keith Arnaud started to liaise with Schembri, in his capacity as OPM Chief of Staff, whenever a briefing had to be set up.

The judge remarked that when acting as the contact point between the police and the OPM, Arnaud had found himself in the same uncomfortable position that any other police officer would have found himself. It would never have occurred to the homicide investigator that Keith Schembri could have been directly or indirectly involved in the murder, or that he was a friend of Yorgen Fenech, Mintoff said.

“The court finds that if there was anyone who had a conflict of interest in the ensuing situation, it was Keith Schembri, who continued to attend briefings at Castille, even when Melvin Theuma’s pardon request was being discussed, without disclosing his “fraternal” friendship between him and Yorgen Fenech, even after Yorgen Fenech became a suspect and his mobile phone was tapped by the Security Services.”

Judge critical about Schembri’s appointment as Chief of Staff

“The court adds that it was inevitable that the appointment of a leading businessman in Malta as Chief of Staff at the Office of the Prime Minister, with all the entanglements and wide ranging contacts with the business world, would bring with it many situations of conflicting interests,” said the judge, adding that this had created serious doubts about whether, in such a delicate situation, Schembri’s personal interests would take the upper hand and prevail over the public interest.”

“Whatever shortcomings might have occurred during the investigation into the murder of Daphne Caruana Galizia… it is highly disgraceful that Inspector Keith Arnaud, because of other people’s conflicts of interest, was put in this pitiful position, where that which he was officially and confidentially reporting on during briefings at the OPM was revealed in the most villainous and disloyal manner, to the point where those arrested at the Marsa potato shed on December 4, 2017 had already been tipped off about their impending arrests. As a result, the lives of Inspector Arnaud and those colleagues of his in the police force and the army who participated in that raid, were placed in grave danger.”

Keith Schembri (left) and Melvin Theuma, who was granted a pardon to tell all: The judge was critical of Schembri's conflict of interest (Photo: Times of Malta)

Judge Mintoff continued: “The court deplores the lax and dishonest way in which the applicant testified in these proceedings, initially recriminating about the leaks by pointing his finger at Keith Arnaud, only to admit in his cross-examination, that it ‘could also be’ that Keith Schembri was given this sensitive information during briefings at Castille and had not been disclosed head to head by Keith Arnaud.”

This distinction made a world of difference, said the judge. “Even if, and only for the sake of the argument because this in no way emerges from the evidence, it was true that Schembri had helped Arnaud’s wife find a job with a government company, the Court can never bring itself to believe that a front-liner in the investigation, like Keith Arnaud, would reach the point where he would endanger the integrity of the investigation and place his life and those of his colleagues in serious danger.”

Arnaud had acted in the same manner as any other police inspector in that situation, said the judge. “When meetings or briefings were called between the Prime Minister and his Chief of Staff, Keith Schembri, that is to say the Prime Minister’s factotum and alter ego, it is natural to presume that there was no hidden conflict of interest, like the “fraternal friendship” between Yorgen Fenech and Keith Schembri.”

Former Commissioner of Police had a central role in the case

But the situation which Arnaud found himself in further complicated by the uncertainty as to whether he could rely on the support his superiors in the police force, said the judge, pointing to the clandestine meetings between ex-Police Commissioner Lawrence Cutajar and Edwin Brincat, il-Gojja, “Melvin Theuma’s ‘stepfather’  that Cutajar had held behind the backs of the homicide investigators. Brincat and Cutajar would listen to and discuss Theuma’s recordings during those meetings, said the judge, which risked completely disrupting the police investigation.

Former police chief Lawrence Cutajar (file photo)

It also shone a spotlight on Cutajar’s long friendship with Brincat, added Mr Justice Mintoff, “and another plainly visible conflict of interest, whereby it should certainly not have been…Cutajar to make recommendations about Melvin Theuma’s pardon request to Cabinet. 

“But for reasons known only to the applicant, through the present case, he is not placing this conflict of interest in his sights, but was limiting himself to the alleged conflict of interest which he is claiming that Keith Arnaud had, and was requesting that Arnaud alone be removed from the investigation into the murder of Daphne Caruana Galizia. This despite the fact that one of Fenech’s defence lawyers had insinuated, while cross-examining Arnaud, that Lawrence Cutajar had been ‘paid €15,000 for Melvin Theuma’s pardon’.”

The duplicity in Fenech’s testimony could also be seen in his voluntary declarations to the police, said the Court. Fenech had mentioned Valletta, a personal friend of his, attempting to excuse him for allegedly disclosing sensitive information about the murder investigation by putting it down to “letting off steam,” in what the court felt was an attempt to conflate Valletta’s treachery with Arnaud carrying out his duties when briefing the OPM.

On this point, the judge remarked that the OPM should be involved as little as possible in investigations into serious crimes, and that briefings about them and pardon requests should be limited to a technical level, at most. Ideally there should be no political involvement in such issues, said the judge. “The court reminds that this country has a history of presidential pardons with strong political connotations, which did not always have positive outcomes.”

Arnaud was “absolutely not alone in the leadership of this investigation,” added the court, noting the direct involvement of a number of senior police officers, including Cutajar and Europol liaison officers, as well as a task force focused solely on the murder investigation, made up of over 10 other police officers and MSS personnel.

It emerged from the evidence that every crucial decision taken during the investigation had been taken collegially by Task Force members unanimously, said the judge. “However, Yorgen Fenech, out of all of these people, points his finger at Keith Arnaud.”

The court said it was convinced that the real reason for Fenech singling out Arnaud was his recommendation that Fenech’s pardon requests be refused.

Fenech’s explanation left judge ‘concerned and perplexed’

Judge Mintoff added that he was “not a little concerned and perplexed” by Fenech’s explanations as to how he came to be involved in the assassination.

He had testified that Theuma had told him that plans were being made to kill the journalist during a meal at his farmhouse. Fenech told the court that at the time, Caruana Galizia had been writing that his friend Keith Schembri “was terminally ill and would die soon.” Fenech didn’t like Caruana Galizia, although she had never attacked his family.

Judge Lawrence Mintoff

When Theuma had told him that all he had to do was put up a sum of money, Fenech said, he had replied that he didn’t care about money and didn’t want to be involved in the matter not because of the expense but because it wasn’t in his nature.

Fenech said he had refused a second time, when Theuma had repeated his request while driving Fenech to the airport a few days later.

This was followed, said the court, by “the most incredible and untruthful part of the account given by Yorgen Fenech.” Fenech had testified that Theuma had taken his statement that he didn’t care about money to mean “go ahead, money is no issue, we will do it.”

“Fenech wants us to believe that, in this most naive senseless way, one of the leading businessmen in the country ended up unwittingly involved in the financing of Daphne Caruana Galizia’s assassination.”

Mr Justice Mintoff said he was “absolutely not convinced and does not believe” that the preparations for the murder had reached such an advanced stage that it could not be stopped. “If anything, Fenech could have, had he wanted to, called off the hit and paid the assassins off anyway, instead of paying for the commission of a murder against his will, seeing as money was not a problem.”

“And if the murder would have happened anyway, why did he still need to involve himself in this heinous crime?”

Neither did the judge believe Fenech’s claim to have paid many thousands of Euro because he was afraid of and was blackmailed by “the worst kind of violent men.”

Fenech’s statement that he wasn’t sorry about what happened to Caruana Galizia and that he didn’t like her, he had intended to demonstrate how truthful he was being, the court said, “but this type of talk continues to reduce, not increase, his credibility.”

Fenech fear was not blackmail but Theuma’s cooperation with investigation

The court said it was convinced that what Fenech was really scared of, was not Theuma’s friends, but the fact that the police investigation had reached a very advanced stage, and had led to the arrests of the three assassins, one of whom – Vince Muscat – was prepared to talk to the police and was requesting a presidential pardon.

Vince Muscat, il-Koħħu, (right) is one of three men sentenced for carrying out the murder of journalist Daphne Caruana Galizia

Theuma’s handing over of his recordings to the police was another more likely factor in the “powerful sense of fear and panic” that gripped Fenech.

Faced with this situation, while contemplating fleeing Malta, Fenech had clung to the hope that his friendship with Keith Schembri – who he said had promised him a pardon if he kept to the script he had passed on to him through Dr Adrian Vella – would pay off.

Fenech wanted a pardon to avoid punishment, not to reveal the truth

The judge said he was morally convinced that the intention behind Fenech’s requests for a pardon was “definitely not that the whole truth be revealed, but to avoid punishment.”

“To achieve this aim, whilst following the script allegedly given to him by Schembri, Yorgen Fenech started to create fictitious and unbelievable scenarios” said the judge. When investigators pointed out the fact that much of what Fenech had told them in his first statement – about the businessman and the minister who, according to Theuma, were involved in the murder – was based on hearsay, Fenech spun a new yarn, involving Paceville impresario Hugo Chetcuti. “A businessman who, however, happens to be dead, and who can therefore in no way contradict Fenech,” noted the court.

Fenech’s second story was based on alleged drunken boasts by former minister Chris Cardona about having killed Caruana Galizia himself and that his mobile phone data would never make it into the evidence of his libel case he had filed against her over her stories about Cardona attending a German sex club by the name of Acapulco.

Chris Cardona: Yorgen Fenech had claimed, in a bid to obtain a pardon, the former minister was behind Caruana Galizia's murder, however the judge said this could not be corroborated

Fenech was expecting to be pardoned on the basis of this information which would lead nowhere because it was “not corroborated in any way,” and which would have left the police with nothing concrete that could lead to the identity of who had commissioned Caruana Galizia’s killing.

When his second pardon request was also refused, despite having supposedly said the whole truth and nothing but the truth, Yorgen Fenech once again changed his version of what should have been the truth and said he felt betrayed by Keith Schembri because he had reneged on his promise to help him obtain a pardon.

“It was at this point that, contrary to everything he had said before, he started to say that Keith Schembri was directly involved in the murder plot as one of the people who commissioned and who paid for it.”

Fenech had told the court that after the arrests of the assassins, when panic had overcome Melvin Theuma, who threatened to tell everything to Simon Busuttil, Schembri had told him that he was going to hire Kenneth Camilleri to shoot Theuma dead. He later alleged that Camilleri had lost his nerve at the last moment because when he went to kill him he had found Theuma to be accompanied by his son.

The court gave short shrift to this account, however, pointing out that even if it had been so easy for Schembri to hire Camilleri to kill Theuma, he would have had no reason to go to the trouble of asking Yorgen Fenech to find him someone to kill Caruana Galizia when he had Camilleri at his disposal.

There was no apparent reason to criticise the police’s decision not to press charges when it was not clear that their case would succeed, said the court, and neither could it be said that Arnaud’s involvement in the murder investigation had not been effective.

Mintoff also noted that Caruana Galizia’s widower had testified in these proceedings to reiterate the full trust that he and his family had in the two lead homicide investigators - Assistant Commissioner Arnaud and Inspector Keith Zahra.

Court highlights ‘institutional deficiencies’

“However, the Court still feels it is duty-bound to make its observations about the institutional deficiencies which, in its view, emerged during the investigation into the murder,” said the judge. “The greatest institutional shortcoming in this homicide investigation were the continuous leaks of confidential and restricted information and the possible compromising of evidence as their consequence, which could have had a devastating effect on the public’s trust in the Police and on its image and credibility.”

The leaks which perforated the investigation were continuous and had reached back to its very start, said the court, pointing to the raid on the potato sheds in Marsa in which the Degiorgio brothers and Vince Muscat were arrested.

“The court is of the understanding that before those responsible for the aforementioned leaks are found and duly punished, it will be hard restore the public’s trust in the integrity of the Force.”  There was “clear evidence about who was responsible” for those leaks said the court, and sufficient evidence for them to be charged.

The potato shed in Marsa where the three men who assassinated Caruana Galizia were arrested: The judge slammed the leaks from the investigation, which put the lives of police and army officers carrying out the raid at risk since the perpetrators had known beforehand of the operation

Another institutional deficiency was the undeclared conflicts of interest brought to light during the course of the investigation, including personal friendships with suspects or persons of interest, made all the graver by the involvement of high ranking government officials like the OPM Chief of Staff and the Commissioner of Police. 

The judge recommended that the legislator “actively consider that conflicts of interest of this kind, especially at the institutional level, which could potentially interfere with police investigations and result in tampering with the collection of evidence should be classified as very serious crimes, to be punished harshly.”

There appeared to be confusion about the investigations into the leaks, said the judge, also pointing out that to date, nobody had been charged in connection with them.

“What is certain, however, is that the presence of Keith Schembri, a leading businessman and the Prime Minister’s alter ego, during briefings at Castille, had created a situation of serious and undeclared conflict of interest which had shocked investigators… Such thorny situations, where even the police found themselves in a quandary as to how to behave in front of a very powerful person like Schembri are an inevitability when a businessman is appointed as the Prime Minister’s Chief of Staff.”

The judge pointed out that when police had searched Schembri’s Mellieha home, they had failed to also carry out a simultaneous search of his office at Castille and his other businesses, as they should have.

Besides this, the police had also failed to seal and put a guard outside Schembri’s office in Castille until it could be searched, leaving the keys to this office in the hands of the new OPM Chief of Staff who replaced Schembri.

As if this was not enough, the police had not carried out this search at Schembri’s Castille office at the same time or shortly after his arrest, but eight full days afterwards. “And this in circumstances where upon his arrest, Schembri had told the police that he had lost his mobile phone, which the evidence shows that he had been using just a few hours before and had not reported its loss to the police.”

Neither was there any explanation as to what criteria the police had used to seize electronic devices and their cloud account login details, said the judge, who revealed that it was unclear as to whether all of these were taken from every suspect or person of interest or just a selection, “or even whether nothing was collected from some of them.”

The judge remarked that he had seen no evidence as to whether the police had internal protocols to establish clear and objective criteria which were applied consistently.

“The court observes that when Keith Schembri was asked to provide the passwords for his cloud data to the police, it seems to have been enough for him to say that he would rather not because he had commercially sensitive information saved there, and the issue appears to have stopped there.”

The chain of command in the murder investigation also came in for criticism by the court, which remarked that whether pre-established procedures had been followed was unclear. 

“Because at first the investigations were being led by Silvio Valletta, who held the rank of Deputy Commissioner. Then when Valletta was ordered by the Constitutional Court to relinquish his role in the investigation, its leadership then passed into the hands of Assistant Commissioner Michael Mallia, who was based at The Hague and was not present in Malta, and ex-Commissioner Lawrence Cutajar also got involved in it, compromised as he was with his conflict of interest because of his friendship with Edwin Brincat, il-Gojja, Melvin Theuma’s adoptive father.

Mr Justice Mintoff also flagged the lack of clarity in police officers’ use of encrypted mobile messaging apps such as Signal and Whatsapp. The evidence did not clearly show in what circumstances police officers were permitted to use them as part of their official duties or whether the deletion or backup of related data was regulated by internal protocols.

But none of this cast a shadow over Arnaud’s work on this case, said the judge. “The court repeats once more that in spite of what appear to be serious shortcomings in police investigations, it is morally convinced that in this investigation, Inspector Keith Arnaud had acted correctly.”

The judge remarked that it was “curious” that Fenech was trying to remove Arnaud from the investigation, when Fenech himself had said that the information had been leaked by Keith Schembri, who had obtained it during his briefings at Castille.

The defence had not asked for Lawrence Cutajar to be removed from this investigation, despite one of Fenech’s lawyers having later alleged in court that Cutajar had been bribed as part of the proceedings leading to Melvin Theuma being pardoned.

“The logical explanation for this, is that Yorgen Fenech, when he filed these proceedings, only had the objective of removing Keith Arnaud from the investigation, who in his understanding, was the real obstacle that had been blocking the road to his presidential pardon.”