Thirty-two months have elapsed since the day when Yorgen Fenech was remanded in custody, a period “equivalent to a four-year effective jail term”, his lawyer Charles Mercieca stressed in court on Friday as he made a fresh bid for bail. 

“This is no triviality. Is this situation fair,” asked Mercieca while making submissions on the umpteenth application filed on behalf of the businessman, who is currently awaiting trial over his alleged complicity in the assassination of Daphne Caruana Galizia. 

The journalist was killed in a car bomb a few metres outside her Bidnija home on October 16, 2017. 

Just over two years later, with the alleged trio of hitmen already under arrest, Fenech was arrested while allegedly making his escape on board his yacht a few miles outside the Portomaso marina. 

Since then, various bail requests have been turned down, with the Attorney General objecting for several reasons, primarily the fact that investigations into the murder were still ongoing, the consequent risk of tampering with evidence and the fact that circumstances had not changed much.

“This is an anomalous situation. This is not a normal situation. This is only Yorgen Fenech’s situation,” argued Mercieca, adding that Fenech had a clean criminal record, was the only suspect in the case who had been granted police bail and the only one who had always observed bail conditions.

“Yet he’s the only one who has been through a four-year effective jail term,” went on Mercieca, while Fenech sat silently in the dock, head bent, only occasionally making brief contact with his lawyers.

When the proceedings reached the stage of pre-trial pleas, Fenech’s lawyers had immediately flagged their concerns about certain evidence that was still not available and the fact that the issuing of the bill of indictment “at the eleventh hour” by the AG had cut short all pending cross-examinations of witnesses.

“This is an issue of human rights and fair trial,” argued Mercieca. 

Fenech has spent time equivalent to a four-year effective jail term at the Corradino Correctional Facility, with an ongoing inquiry that the AG “does not want to wrap up” and awaiting access to evidence that the defence did not yet have.

“How fair is this? If not to do justice, then why are we here? The final aim is justice and fairness and this is not fair,” said Mercieca. 

But deputy AG Philip Galea Farrugia rebutted that the defence “had no idea how a magisterial inquiry was wrapped up”.

It was either the inquiring magistrate who declared the inquiry closed once investigations were completed, or the police requested closure once a suspect was to be arraigned.

In this case, the murder inquiry was still “very active”, said Galea Farrugia, adding that lead investigator superintendent Keith Arnaud had said so and that “until last week witnesses testified before inquiring magistrate Victor George Axiak”.

This meant that the fear of tampering with evidence still existed. 

And that fear was not in relation to evidence that was already preserved in the records of the inquiry but regarding criminal investigations that were still ongoing.

The lapse of time was also a consideration for bail, rebutted the defence.

In fact, the law itself provided a 20-month time limit, pointed out Madam Justice Edwina Grima, referring to the term within which the bill of indictment had to be issued. 

“Were it not for that bill of indictment issued at the eleventh hour, Fenech would have got bail,” countered Mercieca. 

The law next set a 30-month time limit for the trial to commence. 

“But we need all the evidence to be able to make all pre-trial pleas,” argued Mercieca.

As for the fear of tampering, Fenech did not know who “these persons are” and had never tried to tamper.

“His interest is for just investigations to reveal the truth and to make sure that those who truly wanted and paid for this murder are arrested.”

Court expert testifies

Friday’s sitting started off with the testimony of court IT expert Keith Cutajar who was asked to shed light upon an “unexplained” tear in an evidence bag containing a cloned copy of the murdered journalist’s phone.

The issue had been flagged by the defence at the previous sitting.

The expert gave an overview of how exhibits were handled from the moment they were handed over to the expert.

The sealed exhibit is photographed from different angles.

Once the bag or envelope is opened, the contents are photographed.

In case of a mobile phone, the device is removed from its cover and the SIM card is removed.

Once expert analysis is complete, the exhibit is re-sealed and the old evidence bag is placed inside a new bag, taped or stapled, stamped and signed to ensure the chain of custody.

An evidence bag is sealed with tamper-proof tape which, once removed, purposely leaves a mark.

This is not an ordinary bag and if the tape is removed, the expert would know whether the bag was previously opened or not. 

A technical person would normally open such bag from its lower end and then re-seal it with the tamper-proof tape or staple it, depending on the size of the exhibit inside. 

Answering questions by the defence, Cutajar said that details about the expert, the case number and the dates of withdrawal and return were generally written on the front of the envelope or on an appropriate form inserted inside the envelope or bag.

Further questioning by the defence triggered an objection by the prosecution who pointed out that such questions were meant to be addressed at the trial. 

As for the “integrity of the exhibit” that was a matter for the court to decide upon, intervened the judge. 

If the chain of custody was flawed and the integrity of the exhibit cast in doubt, then it was for the court to decide, said Madam Justice Grima, adding that the court would decree on the matter after taking stock of the report on this particular exhibit and after the parties have made their written arguments.

However, up to the point that court expert Martin Bajada worked on it, the phone was properly sealed and therefore, the “material was crystallised” at that stage, pointed out the court. 

The decree on bail will be delivered in chambers and the case continues in August.

Lawyers Gianluca Caruana Curran and Marion Camilleri also assisted Fenech. Lawyer Jason Azzopardi appeared parte civile.