Attorney General appeals Yorgen Fenech acquittal

The Attorney General has formally appealed the verdict that cleared Yorgen Fenech of complicity and association in the murder of journalist Daphne Caruana Galizia.

The appeal was filed on Tuesday at noon, marking the beginning of a new stage in the State’s case against Fenech.

Fenech was acquitted on 2 September, when a nine-member jury found him not guilty by eight votes to one on both charges.

The investigative journalist was brutally assassinated by a car bomb outside her Bidnija home on 16 October 2017.

The verdict brought to an end a 55-day trial during which jurors heard extensive evidence surrounding the murder, including testimony from self-confessed middleman Melvin Theuma, police officers, investigators, associates of Fenech and Fenech himself. The jury also heard hours of recordings from Fenech’s police interrogations following his arrest in November 2019.

MaltaToday subsequently published recordings of the interrogations held on 29 and 30 November 2019 online.

The acquittal triggered a strong public reaction, culminating in thousands taking to the streets of Valletta in a protest calling for justice over Caruana Galizia’s assassination.

Grounds of the appeal

The appeal is challenging the verdict on the basis of grave irregularities during the proceedings that could have had a bearing on the outcome.

Sources told MaltaToday the appeal will be two-pronged, focusing on points of law arising from decisions taken by Judge Edwina Grima during the trial. The Attorney General will argue that certain decisions were based on an incorrect interpretation or application of legal principles.

Even where the Court of Criminal Appeal finds in favour of the Attorney General on a point of law, it may nevertheless dismiss the appeal if it considers that no miscarriage of justice actually occurred.

An appeal by the Attorney General against an acquittal is significantly different from an appeal filed by a person who has been convicted. Article 500(2) of the Criminal Code expressly gives the Attorney General the right to appeal against an acquittal. However, the grounds on which the State may successfully challenge such a verdict are more limited than those available to a convicted person challenging a conviction.

Jurors questioned by police

The appeal also comes against the backdrop of a separate police investigation involving members of the jury that acquitted Fenech. A number of jurors were arrested and questioned by police last week over possible issues linked to the oath they had taken before the trial began. Police said the investigation concerns the oath taken by the jurors and public comments they allegedly made before the trial, rather than what police described as “some theory or other allegation”. The jurors were questioned by officers from the Financial Crimes Investigation Department.

The jurors were all subsequently released on police bail.

Possible outcomes of the appeal

The Criminal Code allows the Court of Criminal Appeal to order a retrial if it considers that the interests of justice require it.

This means if the Attorney General successfully challenges Fenech’s acquittal on the relevant legal grounds, the Appeals Court could order a new trial before the Criminal Court.

In that scenario, the case would be heard afresh before the Criminal Court, a new bill indictment would have to be issued and a new jury would have to be appointed. This will not happen immediately.

The Appeals Court can also dismiss the AG's appeal, leaving the verdict intact.

The appeal will be heard by the Court of Criminal Appeal, composed of three judges. The Appeals Court is presided by Chief Justice Mark Chetcuti.