Murder suspect Yorgen Fenech was denied bail once more on Tuesday, with a court turning down his application following one day of deliberation. 

Fenech stands accused of killing journalist Daphne Caruana Galizia, in a case which the court noted had prompted “vast, complex and intricate” investigations which were still ongoing.

Fenech’s lawyers had argued on Monday that their client satisfied all criteria to be allowed out on bail, which they noted was the rule and not the exception

A court on Tuesday disagreed, listing concerns that allowing Fenech out of police custody could compromise evidence in the case against him, give him the chance to flee the country and provoke a public outcry. 

The court noted concerns that Fenech might abscond if allowed out of custody, highlighting the fact that he had been arrested aboard his yacht at the crack of dawn in an apparent attempt to flee the country. 

Fenech’s business ties and financial means meant that the risk of him absconding could not be excluded, magistrate Rachel Montebello said.

The magistrate also noted that inquiries into Daphne Caruana Galizia’s murder, which Fenech stands accused of complicity in, were still ongoing and that other suspects which Fenech himself had mentioned to police were also under investigation. 

Furthermore, electronic devices seized by police from murder middleman Melvin Theuma were still being examined and had not yet been presented in the compilation of evidence against Fenech and a number of civilian witnesses had yet to testify. 

"At this stage when the crime has not yet been solved, continued custody of the accused is justified," the court said. 

Granting bail at this stage could disrupt public order in a society keenly awaiting the outcome of the murder investigations, the court noted, adding that it was not easy to balance the conflicting interests of the accused with those of society and victims of crime.  

Magistrate Rachel Montebello disregarded the attorney general’s submission opposing Fenech's bail, noting that it had been sent in one day late and was therefore inadmissible. 

She reminded prosecutors of their duty to manage the case promptly and without delay. 

"The fact that bail has been denied does not lift this duty off the prosecution," the magistrate said. 

It was the fourth time Fenech had sought bail since he was first charged with complicity in the murder of journalist Daphne Caruana Galizia on November 30, 2019. 

All four applications have been turned down by the law courts, with Fenech remaining in police custody in the ensuing months. 

Fenech’s time in custody was further complicated by the coronavirus pandemic, which put a temporary halt on court proceedings earlier this year. In May, a court found that Fenech’s rights had been breached by a public health order to halt court proceedings, in a judgement that could have far-reaching implications on other cases. 

Fenech denied access to phone data 

Magistrate Montebello also refused a constitutional reference Fenech’s lawyers had sought.

A constitutional reference is a way through which a court can refer an alleged breach of rights to the constitutional court. 

The request concerned access to Fenech’s mobile phone, which his lawyers say has been given to prosecutors and third parties but not to them. 

His lawyers also noted that bits of data from the phone had been published in local media reports. 

Fenech’s mobile phone featured prominently in court proceedings on Monday, when his wife Marlene testified that she had found a missed call from her husband’s number on her own mobile phone just last week. 

Inspector Kurt Zahra told the court that Fenech’s phone is with Europol experts in the Netherlands and that police working on the murder case and related cases only had access to a copy of the phone’s data. He said lawyers representing the Caruana Galizia family had not been given access to that data. 

The magistrate noted that data from Fenech’s phone had clearly reached third parties, given that local media had reported on some of that data.  

But she also said that the phone data was still subject to investigation and was set to be exhibited in court, with the prosecution yet to conclude its evidence stage. 

“The court cannot understand how the accused can complain that he is being denied of evidence, when that evidence is not yet part of the records of the compilation,” the magistrate said as she rejected Fenech’s request for a constitutional reference.

IT expert to extract data

The court also said that it had appointed IT expert Alvin Cardona to make copies of voice recordings extracted from confiscated devices by Europol experts. 

It ordered that Cardona be given access to the devices in question. 

Privacy concerns about data on Theuma's devices

Lawyers also discussed concerns about privacy concerns about data that might be found on murder middleman Melvin Theuma's electronic devices. 

Some data - such as personal photos or messages from family or friends - might not be relevant to the case, inspector Keith Arnaud argued. He told the court that apart from Theuma's own devices, investigators had also seized devices belonging to relatives of his who did not live in the same home. 

Deputy attorney general Philip Galea Farrugia agreed, noting that investigators had also seized, as an example, a pink laptop belonging to Theuma's daughter. 

The court heard arguments and decreed that parties would meet with the court-appointed IT expert and go through the data together, to decide what data is relevant to the case and disregard the rest.

The murder accused, Yorgen Fenech, will be present when that takes place, as will lawyers representing the murder victim's family. 

The case was adjourned to October 6 at 10am. 

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