Yorgen Fenech’s lawyers are challenging the validity of statements he gave police investigators, claiming he was under the influence of cocaine at the time.

This was one of the challenges put up by lawyers of the businessman who in November 2019, while being interrogated following his arrest, strongly denied involvement in the murder of Daphne Caruana Galizia, saying he “had no reason to do it".

“What did she ever write about me for me to do such things," Fenech had asked, offering investigators information about state corruption in exchange for a presidential pardon.

Two years down the line, with the compilation of evidence into the 2017 car bomb explosion wrapped up and the trial by jury on the horizon, Fenech’s lawyers are putting forward numerous pleas to the bill of indictment.

On Thursday lawyer Charles Mercieca focused at length on “informal” conversations Fenech had engaged in with lead investigator superintendent Keith Arnaud in the presence of inspector Kurt Zahra and former police commissioner Lawrence Cutajar. 

Like self-confessed middleman Melvin Theuma, Fenech had been reassured that those conversations, held to assess his eligibility for a pardon, were “without prejudice, confidential and would not be used in evidence against him".

The investigator had taken down handwritten notes, the conversations were not recorded and Fenech was not cautioned. 

Eventually, Fenech’s pardon request was turned down and formally-recorded statements were released before investigators said that it was “from here to court” for his arraignment as an accomplice in the murder. 

When testifying later in the proceedings, Arnaud had referred to those “exploratory”  pre-pardon discussions as “informal,” refusing to divulge the information in court. 

'Informal interviews should have remained confidential

But all that seemed to change when in November 2020, the victim’s family lawyers filed an application requesting that information to be produced in the records of the case, arguing that once Theuma’s statements had been exhibited so should Fenech’s. 

“Amazingly enough the Attorney General did not object,” said Mercieca, questioning the logic and highlighting the different scenarios involved. 

Such “scoping interviews” were to remain confidential once the pardon was not granted, argued the lawyer, making reference to Crown prosecution guidelines on the subject. 

His lawyers are also challenging the admissibility of separate statements by Fenech, claiming that at the time, Fenech was in a vulnerable state and his “motor functions were impaired by the drug he had consumed.”

Moreover, the police had not given his lawyers full disclosure.

200 recordings, intercepts, footage

Fenech’s defence now knew that the police had 200 recordings, phone intercepts and footage out of which they had only disclosed four tapes when the statements were recorded. 

Only 130 minutes out of a total of 60 hours, had been disclosed. There were tapes pointing at the involvement of “others” in the crime, also showing that Fenech did not want, nor order, nor pay for the murder, stressed Mercieca. 

'Suspect’s statements elicited through fraud'

He argued that the suspect’s statements had been elicited through fraud. 

Why were the police holding back such evidence, including phone taps of conversations between Theuma and Edwin Brincat il-Gojja, and others between il-Gojja and former police commissioner Cutajar, asked the lawyer. 

“If the police are so convinced that Yorgen Fenech is the mastermind, then why are they scared of giving this evidence?”

'Melvin coached to frame Fenech'

Those intercepts gave a picture of Melvin being “coached” to “frame” Fenech, the lawyer claimed.

“Don’t call him friend, call him mastermind. Stop calling him friend,” Theuma had been urged by Brincat.

And when Fenech himself had asked his interrogators whether there were more recordings, his request for full disclosure was brushed aside.

After listening to four hours of recordings, Fenech had been assured there was no need to play all the tapes at that stage, although he insisted he was certain that Theuma had recorded other people, including Johann Cremona. 

Taking a leaf out of the recent US trial against Ali Sadr, Mercieca pointed out that lack of full disclosure had prompted the prosecution to file a motion for mistrial.

“I’m not expecting the AG to do the same but Fenech was irremediably prejudiced when manifestly misguided to believe something that was not true.”

Fenech’s defence was further prejudiced by the fact that important cross-examinations, such as those of Keith Schembri and Kenneth Camilleri, had been suspended and then cut short by the issuing of the bill of indictment. 

What guarantee is there Theuma will turn up at trial?

Theuma’s health was another matter of concern, went on Mercieca, running the court through the court process which had taken place just before the middleman’s attempted suicide.

Theuma had testified for some 15 times when Fenech’s lawyers requested to cross-examine him. When challenged with yet undisclosed evidence that allegedly indicated that Theuma had bought his pardon, the witness had reacted, insisting that if that allegation were to stand, then his pardon would be withdrawn. 

During a subsequent scheduled sitting, Theuma was meant to be faced with “secret” recordings that the defence had “stumbled upon”. However, the witness had not made it to court as he had allegedly attempted suicide on the eve of his court testimony, Mercieca said.

“Faced with such fact, what guarantee is there that Theuma would turn up at the trial?”

At the end of Thursday's hearing, the court also heard submissions about a fresh application for bail.

A decree will be delivered in chambers.

The case continues in January.

Deputy AG Philip Galea Farrugia prosecuted.

Lawyers Gianluca Caruana Curran, Marion Camilleri and Mercieca are defence counsel.Lawyers Jason Azzopardi and Therese Comodini Cachia appeared parte civile.