Daphne murder: Yorgen Fenech sought private flight, tried moving cash from Dubai before arrest

The prosecution has described how Yorgen Fenech planned to escape when he learnt his arrest was imminent, quoting from a flurry of messages with his uncle Ray and brother • Magistrate denies bail

14 April 2021, 9:51am
by Matthew Agius

3 min read

Murder suspect Yorgen Fenech

Yorgen Fenech messaged a pilot with Falcon jets with an urgent request for a private flight on the eve of his arrest, a court has heard.

It was also revealed that Fenech was trying to transfer cash from Dubai and other places through Wings Development, the company previously named 17 Black.

The information was given by Deputy Attorney General Philip Galea Farrugia when rebutting a bail application filed by Fenech’s lawyers in today's compilation of evidence sitting.

Magistrate Rachel Montebello denied bail and Fenech's lawyers have demanded a constitutional reference.

Pardoned middleman Melvin Theuma continued testifying in the case against Fenech, who is charged with masterminding the murder of Daphne Caruana Galizia.

Fenech was arrested in the early hours of 20 November, 2019 when he was stopped from leaving Malta aboard his yacht, the Gio.

In submissions against bail, Galea Farrugia insisted that the risk of absconding was still a reality. He then read out a litany of messages exchanged between Fenech, his uncle Ray, and brother, when it became apparent the police were going to arrest him.

“Let us not carry on misleading the court saying the boat was due for a service,” Galea Farrugia said with reference to the defence’s claim that Fenech was not escaping from Malta but was on his way for a scheduled boat service in Sicily.

Galea Farrugia insisted the plan was for Fenech to go to Pozzallo and then get a truck to Nice, where a car had to be arranged with no trace.

But the deputy AG also revealed that Fenech had also tried to arrange a private flight. “On 19 November 2019 Yorgen Fenech sent a message to a pilot with Falcon jets, with an urgent request for a private flight,” he told the court.

Galea Farrugia added: “There are other mentions of Wings Development and 17 Black. These are in the acts of the case. The accused was moving his cash around the world.”

A few hours before his departure on the yacht, Ray Fenech, Yorgen’s uncle, sent him a message with a link to a story that Melvin Theuma had been arrested and was going to be given a pardon.

Ray Fenech told his nephew to trust no one. “Yorgen Fenech was told to ‘go to a safe place seeing that you have the chance’… Flights to Paris, private jets are mentioned in the SMS exchanges,” Galea Farrugia argued.

He insisted the investigation into the Caruana Galizia murder was ongoing and the voluminous data extracted from devices that belonged to Fenech was still being analysed.

The defence argued that the case against their client was being politicised and there was no reason to deny Fenech bail.

Theuma testifies

Earlier in the sitting, Theuma continued his testimony.

Various recorded conversations were played, including exchanges between Theuma and Fenech business associate Johann Cremona.

Theuma’s testimony today was pretty much a repeat of what has already come out. He testified on his fear that he would be smoked out for the murder despite Cremona relaying messages that purportedly came from Keith Schembri that he should not worry.

Theuma had received a presidential pardon to tell all he knew about the plot to murder the journalist. He acted as an intermediary between Fenech and the three men who carried out the crime.

Daphne Caruana Galizia died in a car bomb explosion outside her home in Bidnija in October 2017.

In the last sitting, Theuma's testimony had to be cut short because he fell ill and was later taken to hospital.

Courtroom players

Magistrate Rachel Montebello is presiding.

Superintendent Keith Arnaud and Inspector Kurt Zahra are prosecuting, aided by Deputy Attorney General Philip Galea Farrugia.

Fenech’s defence lawyers are Marion Camilleri, Charles Mercieca and Gianluca Caruana Curran.

Lawyers Jason Azzopardi and Therese Comodini Cachia are appearing parte civile for the Caruana Galizia family. Lawyers Kathleen Calleja Grima and Matthew Brincat are assisting Theuma.

15:59 Magistrate Rachel Montebello has denied bail. The next sitting is on 25 May. Kurt Sansone

15:32 We are waiting for the court to give its decree on bail. Kurt Sansone

14:50 Mercieca insists on a constitutional reference on the bail issue. The court now retires to chambers to decree on the matter. Kurt Sansone

14:50 The court tells the lawyer to conclude his submissions. Kurt Sansone

14:49 Mercieca: “If you are investigating someone else, arrest them, don't keep me in custody.” Kurt Sansone

14:49 Defence lawyer Charles Mercieca wants to make more submissions by way of reply but the court has heard enough and says it will retire to decree in a few minutes’ time.

The lawyer quotes European case law, insisting that the fact that police are still uncovering data, which is in their possession doesn't mean bail should be refused. Kurt Sansone

14:41 The court asks about whether there was a risk of approaching witnesses. The Deputy AG says there were incidents which showed this. Kurt Sansone

14:40 Galea Farrugia: “The biggest evidence is the recent arraignments. It shows that work is ongoing in the investigation. From the date of the most recent denial of bail, there were developments and people were arraigned.” Kurt Sansone

14:39 Galea Farrugia: “I think the fear of absconding... piu di cosi'... let us not carry on misleading the court saying the boat was due for a service. There are other mentions of Wings Development and 17 Black. These are in the acts of the case. The accused was moving his cash around the world.” Kurt Sansone

14:38 Galea Farrugia says that on 19 November 2019 Yorgen Fenech sent a message to a pilot with Falcon jets, with an urgent request for a private flight. Kurt Sansone

14:36 Galea Farrugia continues making reference to a flurry of messages and conversations that show increasingly panicked suggestions that Fenech should leave Malta for Sicily.

“Now go,” one of the messages read, to which Fenech replied: “Yes, we leave at 5am. Arrange a car in Nice with no trace.” Kurt Sansone

14:34 Galea Farrugia reads out more messages in this vein. He says the plan was to go to Pozzallo then get a truck to Nice. Concurrently, he adds, there was another chat between Fenech and his brother.

Galea Farrugia reads out the exchanges: “We can sort out a way where you can be somewhere safe… Tell your friend it is better to do as he suggested and leave the country for good… boss, let us leave now, listen to me… tell Logan no crew and use WhatsApp to call… We can't rent a car and run away with it.” Kurt Sansone

14:31 Galea Farrugia: “Wasn’t he supposed to have been going on a boat trip?” Kurt Sansone

14:30 Deputy AG Philip Galea Farrugia speaks now. He bases his argument on the law, which says that bail can be given only if certain criteria are fulfilled.

”In February we heard the same arguments from the defence and two weeks later two more people were charged,” he says.

Galea Farrugia says that the night before Fenech’s arrest, the accused received a message from his uncle Ray about the Prime Minister's declaration that he wants arrests. Fenech was told to “go to a safe place seeing that you have the chance”.

“Flights to Paris, private jets are mentioned in the SMS exchange,” the AG lawyer continues. He continues quoting from the exchange Fenech had had with his uncle on the eve of his arrest.

Asked if the airport is safe, Fenech was told that it was better to travel by boat. “A few hours before his departure on the yacht, Gio, Ray had sent a link to a story that Melvin had been arrested and was going to be pardoned,” Galea Farrugia says, adding that Fenech’s uncle told him not to trust anyone. Kurt Sansone

14:23 Arnaud: “What the Commissioner said was that from the evidence which the police have in hand to date, the persons indicated are in court.”

Arnaud says that he does not recall the Commissioner saying that the investigation is concluded. “The huge amount of data taken from Fenech's devices is still being analysed,” he adds. Kurt Sansone

14:22 Arnaud replies, pointing out that the Police Commissioner's words should not be taken out of context. The reference is to a statement made by Police Commissioner Angelo Gafa in a press conference shortly before three more men, believed to have supplied the bomb that killed Caruana Galizia, were charged earlier this year. Kurt Sansone

14:20 Mercieca says that the Attorney General argued that there wasn't a change in circumstances. “But he must have seen the Police Commissioner's pronouncement. Should the arguments be rejected, we will be filing a constitutional reference,” he insists. Kurt Sansone

14:13 Mercieca argues that no new evidence was unearthed. “We shouldn't have to come here, 17 months after his arrest and argue why Yorgen Fenech should be granted bail... it is his right,” the lawyer says.

“Whenever possible, remand in custody should be avoided. Fenech has two children,” he says.

Mercieca lists all the people charged with murder since Fenech's arrest. “They are all on bail,” he says. Kurt Sansone

14:10 The lawyer warns that he will make a constitutional reference on this issue. Kurt Sansone

14:09 The court interrupts and asks whether there was a formal indication of this.

“It was declared seduta stante,” replies the lawyer, insisting that the police commissioner himself had said that all those involved in the murder of Daphne Caruana Galizia are either arrested or charged.

Mercieca quotes from ECHR case law. “We aren't talking of two or three months but 17 months. The mandatory maximum in EU states is far below that which Fenech has been held in preventive custody,” he says. Kurt Sansone

14:06 Charles Mercieca stands up to make his submissions too. “In Malta, we have only criminal or civil proceedings but certain individuals have tried to turn it into a political case. We have legal principles that apply. The case has set a record for the length of preventive arrest. The investigations into Fenech are concluded. He is not being investigated over the murder of Daphne Caruana Galizia,” he says. Kurt Sansone

14:05 The lawyer argues that the conditions cited in previous bail rejections no longer existed and the prosecution is finding it hard to justify bail denial to the court. Caruana Curran says that his client has already spent two years in prison despite being presumed innocent.

“He is Maltese and has no companies or accounts abroad. No evidence of absconding has been brought,” says the lawyer.

He argues that the tycoon's travel plans prior to his arrest had been documented.

“The fact that he might escape is not a reason to deny bail after 17 months. Ankle bracelets should be used in this case. We are talking about a person with a clean criminal record. We cannot carry on like this,” Caruana Curran says. Kurt Sansone

14:01 The court now deals with a bail request by the defence. The submissions will now be made by Gianluca Caruana Curran. Kurt Sansone

14:00 Arnaud refers to a note filed in the proceedings on 29 January with two documents. Defence lawyer Charles Mercieca says he had requested that the rest of the tapes be exhibited not just the prosecution's choice of them. The prosecutor had argued, in other proceedings, that only the recordings related to this case should be exhibited. Kurt Sansone

13:50 Arnaud has finished his questions. The court suspends the witness's deposition. Kurt Sansone

13:47 The commissioner in question is former police commissioner Lawrence Cutajar who served between April 2016 and January 2020. Kurt Sansone

13:46 Theuma: “Johann would tell me that Keith would fix everything and therefore if the commissioner knows, couldn't Keith tell him not to arrest me?” Kurt Sansone

13:44 Arnaud asks the witness why he had said ‘this time I'll reveal them for sure’.

Theuma: “I had told Johann many times that I will go, I will go, I will go for sure, but that time I told him I will reveal them.” Kurt Sansone

13:40 The magistrate asks whether Theuma knew that the police commissioner had told Johann Cremona about the places where the raid would happen. The witness insists that he didn't actually know what the police commissioner was doing. Kurt Sansone

13:33 We are now moving on to another recording. Kurt Sansone

13:31 Theuma: “I would have rather not been arrested. I would have rather revealed all before being arrested. You are right, your honour.” Kurt Sansone

13:28 The magistrate asks what was his interest in finding out where the raids were going to take place and whether he would be arrested.

“I was going through such a hard time, I didn't even know what to do,” he replies. Kurt Sansone

13:27 Theuma: “Yes, on the murder. I told them that if the police picked me up I will tell all immediately.” Kurt Sansone

13:26 Arnaud: “And you mention ‘if I’m caught, I will tell all’…” Kurt Sansone

13:25 Arnaud says that the recording shows that Theuma wanted to know the places where the police raids were going to take place. “Why?”

“To clean up,” Theuma replies.  Kurt Sansone

13:23 The correct position in the recording is found. Theuma tells the court that at that point Johann Cremona was telling him that it was the police commissioner who spoke to Kenneth Camilleri. “I was amazed at this,” he says. Kurt Sansone

13:09 The court asks the technician to rewind five seconds, to hear a part of the recording again. It seems the technician went back to some unknown stage.

The parties are now searching through the transcripts trying to figure out what is happening.

The magistrate says we are in the wrong place in the recording.

It seems the media player being used doesn't support five second skips. Kurt Sansone

13:05 Theuma in the recording: “The commissioner told Kenneth (presumably Kenneth Camilleri a former member of Joseph Muscat’s security detail and close friend of Keith Schembri) about the places.” Kurt Sansone

13:02 Another recording is played. Kurt Sansone

13:02 Theuma says he cannot remember if he had got a reply from Cremona about the plan they had agreed upon. Cremona had contacted Theuma to tell him that he would have no problems with the murder's aftermath.

The witness says that he was confused because of the mixed messages he was getting from Cremona and Fenech in relation to the murder.

“They would tell me not to worry, and then that I would be arrested,” Theuma tells the court. Kurt Sansone

12:57 Theuma says that he had tried to call Yorgen Fenech but couldn't get through to him and, desperate for money, had called Johann Cremona. Cremona threatened to go to Raymond Aquilina, the witness says. Kurt Sansone

12:56 Arnaud quotes from the transcript: ‘Jekk tgħaddi għand Raymond froġa ħa ssir (‘If it passes to Raymond the whole thing will get bungled’).’ The reference is to Raymond Aquilina, a police officer who in previous testimony was indicated as the person who would carry out the money laundering raid and who would ensure the case does not progress far.

“One minute Raymond Aquilina is a friend and the next he's threatening to go to the magistrate,” Arnaud says. Kurt Sansone

12:52 Melvin's testimony is suspended again and he is allowed out of the courtroom. He returns a couple of minutes later and his deposition continues. Kurt Sansone

12:50 Arnaud asks Theuma about a part where he was talking about the police raid and his daughter. Reference is made to a residence of a relative of Melvin Theuma and that he didn't want the police to search it. Theuma tells the court that he was worried because the people “had nothing to do with anything”. Kurt Sansone

12:38 It is pertinent to note that the recordings have a lot of noise and journalists have no transcripts on which to follow, unlike the parties in the case. The recordings are sometimes inaudible, making it difficult for journalists to follow what is being said. Kurt Sansone

12:28 The magistrate tells him to let her know if he has difficulty hearing the voices in the recording. The recording playback resumes, even less audible than before. The court asks Theuma if he is following and replies in the affirmative. Kurt Sansone

12:27 Melvin theuma is summoned back to the stand again. Kurt Sansone

12:27 The court clarifies the list of names that cannot be mentioned. The name of Johann Cremona, previously referred to as (Omissis 1) can be mentioned. Cremona was a business associate of Yorgen Fenech. Kurt Sansone

12:25 Mercieca insists that it is a problem. The magistrate says she will ask Theuma if he is understanding the recordings and take it from there. The court dictates a note, observing that the speakers on the defence's side of the courtroom are not working and the sound is not clear. Kurt Sansone

12:19 Deputy AG Philip Galea Farrugia, says he cannot understand what the problem is. “We have transcripts, we have these two speakers that work,” he says, pointing to them. Kurt Sansone

12:18 The problem does not appear to have been resolved. Magistrate Rachel Montebello comes out of her chambers. She reminds Mercieca that he can follow the recordings on the transcript. However, the lawyer says the intonation and inflections in the recording make a difference.

The court technician tells the magistrate that half the courtroom speakers are not working. Kurt Sansone

12:10 The problem appears to be serious, affecting half the courtroom. A classical music test track is played. They now try to use the actual recordings but it seems that the speakers aren't working well. Kurt Sansone

11:51 The technician speaks to the magistrate and the sitting is suspended. Kurt Sansone

11:50 A court technician makes some adjustments to the speakers’ connection. It makes no difference to the abysmal quality of the recorded sound.

Defence lawyer Charles Mercieca asks the court to stop the recording as the defence cannot hear a thing. The technician fiddles with some speakers, but so far has been unable to fix the problem. Kurt Sansone

11:43 Another recording is played. Kurt Sansone

11:42 “The news,” replies the witness. He reiterates that the news had prompted the comparison. Kurt Sansone

11:41 Referring to the recording, Arnaud asks him what had made him say ‘they didn't pick up Konrad and Keith, they'll pick me up?’ Kurt Sansone

11:38 The court calls Theuma back in the courtroom to continue testifying. Kurt Sansone

11:37 The questions raised concern a particular point – we are not allowed to report the questions - which the court says could be dealt with at cross-examination stage. The parties are making submissions, arguing that the defence raised the point at too early a stage. Kurt Sansone

11:30 Defence lawyer Charles Mercieca asks the court to order the witness to leave the stand briefly so he can make an observation. The court does so. Theuma leaves the courtroom.

The court bans the publication of the forthcoming questions by the lawyer. Kurt Sansone

11:29 Arnaud says it sounds like Theuma knows about the conversation the former police commissioner Lawrence Cutajar had with Edgar Brincat.

“Not at all,” Theuma replies, saying something about Qormi and how he brought up the police commissioner himself to try and impress. Kurt Sansone

11:26 Arnaud reads from the transcript: “I will not be picked up, I will reveal who they are, for sure and tell him.”

He asks about the information Theuma had about the raids.

The witness gives a convoluted explanation as to how the commissioner he refers to was in fact Edwin [Brincat] and how he had “invented it”. Kurt Sansone

11:17 At the time, Theuma owned property in Safi and Żurrieq. The Safi property was a disused garage. Żurrieq was his hometown. Kurt Sansone

11:16 Theuma: “One time I had driven to Castille but (Omissis 1) told me ‘are you crazy?’ I waited for about 30 minutes and left... I wanted to tell Keith about the murder and about the money.” Kurt Sansone

11:15 Arnaud: “Had you ever gone to try and face Keith Schembri and the other person?” Kurt Sansone

11:14 Theuma says that had it not been for Yorgen Fenech and two other people he would long have gone to tell the authorities of the murder plot. Kurt Sansone

11:13 Theuma flicks his chin several times. He then breaks into a coughing fit. Kurt Sansone

11:13 Theuma: “Many times, I went to reveal everything because I couldn't carry on with that life.” Kurt Sansone

11:12 Asked about his comment ‘I will not be picked up’, Arnaud suggests that Theuma sounded powerful. “I had no power,” insists Theuma, adding that Fenech would tell him that he shouldn't worry so much and that “if we remain united, nothing will happen”. Kurt Sansone

11:09 Testifying in court, Theuma says that he feared that if he was jailed, there was nothing to pin Yorgen Fenech to the murder. “There was nothing since Fulu [Alfred Degiorgio] only knew me,” Theuma says. He goes on to say that he was concerned that Fenech would stop paying the three men who executed the murder. He says that Fenech would often tell him that he wasn't going to be arrested and that everything was under control, but Theuma insists he wasn't convinced as the versions he was hearing kept changing. Kurt Sansone

11:07 Theuma says that in one of the exchanges he was referring to Keith Schembri and how he believed that the former OPM chief of staff and Yorgen Fenech were plotting to get him jailed. Theuma says “they” were “tapping” his phone conversations. Kurt Sansone

11:02 Theuma: “It wasn't related to the murder.” Kurt Sansone

11:01 Arnaud points out that (Omissis 1) tells Melvin Theuma in the recording: “Did you do that job? (Għamiltha l-biċċa xogħol?)” The superintendent asks what was the person referring to. Kurt Sansone

10:58 Asked about a particular exchange, the witness explains that the men were using the messaging application Signal and were trying to set up disappearing messages. Kurt Sansone

10:57 “It was the year I was arrested,” Theuma notes. Kurt Sansone

10:56 The recording has just stopped as the two men started raising their voices. Arnaud asks Theuma when the recording was made. “In 2019,” he replies. Kurt Sansone

10:55 A child is wailing in the background of the recorded conversation. Kurt Sansone

10:55 The court and parties have transcripts to follow the recordings, which the media have not been given, making it hard to understand what is being said. Kurt Sansone

10:54 The volume of the voices in the recording goes up and down. Melvin Theuma is heard saying: “If we mess it up, we have to fix it… I will not be picked up [by the police].” Kurt Sansone

10:45 The voices are referring to Fenech, who appears to be abroad at that juncture. Kurt Sansone

10:45 The recording is a conversation between Melvin Theuma and a business associate of Yorgen Fenech, whose name cannot be mentioned (Omissis 1). Kurt Sansone

10:43 A number of recordings previously played must be heard again, Arnaud informs the court. One of these recordings starts being played. It is not very clear. Kurt Sansone

10:41 Arnaud asks the court to reiterate its previous ban on the publication of certain names from the last sitting. The magistrate accedes to the request. Kurt Sansone

10:39 Pardoned middleman Melvin Theuma now takes the stand. Kurt Sansone

10:38 Arnaud asks how far back the witness had gone back in time in her searches. “Further back than last year,” comes back the reply, although a precise date could not be given. Kurt Sansone

10:38 The Melita representative says that mobile phone number 7949**** is registered to Edgar Brincat, also known as Edwin il-Ġojja. Answering a question from defence lawyer Charles Merceica, the witness says that before 13 April 2020 Melita had not received a request from the police for information on this number. The witness says that the first request was made on 13 April 2020. Kurt Sansone

10:32 A number of people are being summoned to present documents to the court. A representative from communications firm, Melita presents the court with all the accounts relating to an ID card number which is not being said in open court. Kurt Sansone

10:26 Yorgen Fenech has been led into the courtroom and the sitting begins. Kurt Sansone

10:19 Melvin Theuma is supposed to testify today. His lawyers Matthew Brincat and Kathleen Calleja Grima are in the courtroom, together with parte civile lawyer Jason Azzopardi, and the prosecution led by Superintendent Keith Arnaud, Inspector Kurt Zahra and lawyer Anthony Vella from the AG. Kurt Sansone

10:18 Our senior court reporter Matthew Agius is inside the courtroom. The magistrate is hearing another case at the moment. Kurt Sansone

09:55 We will be with you shortly from inside the courthouse where the compilation of evidence against Daphne Caruana Galizia murder suspect Yorgen Fenech will continue. Proceedings are expected to start at 10am. Kurt Sansone

09:54 Good morning. Kurt Sansone

Matthew Agius is Senior Reporter on Law and Court Affairs at MaltaToday. He is also a Leg...