The chief investigator in Daphne Caruana Galizia’s murder case said on Friday that a “narrative” exchanged between Keith Schembri and Yorgen Fenech in 2019 had sought to pin the assassination on someone else.
Keith Arnaud said that a paper delivered by a doctor known to both men had contained a story to try and help Fenech get a presidential pardon for himself.
The case dates back to November 2019, when Fenech was handed a note while in police custody directing him to pin the journalist’s murder on former minister Chris Cardona.
Arnaud spoke of the note on Friday as he faced cross-examination by Fenech's lawyers.
Fenech's defence team say that the courts’ refusal to grant him bail amounts to a form of arbitrary arrest. Through a constitutional case, the businessman charged with Caruana Galizia's murder is arguing that he has spent over 500 days in custody while still presumed innocent, on grounds that have no basis in law.
Facing questioning from parte civile lawyer Therese Comodini Cachia, Arnaud said the paper handed to him contained a story with Fenech telling police that it was a “narrative” he was told to tell so as to get a pardon himself.
Fenech had reflected the contents of that letter in his later statements to the police. One of the papers reached Fenech before his arrest and the other came to him after the arrest, during police bail, Arnaud said. No further details were given.
Asked by defence lawyer Charles Mercieca whether that “narrative”, which included Cardona's name, had been confirmed by one of the hitmen, Arnaud said that Vince Muscat’s testimony was based on “hearsay”.
The investigator added: "So far, we have not yet managed to put the pieces together, to link that narrative."
Friday’s testimony was punctuated by challenges to Arnaud over why the police could not grant Fenech bail with fears of him absconding still remaining. But the defence lawyers described the suspicions as nothing more than "phantom fear".
While investigation into the businessman’s links to the murder had been concluded, the case had not been wrapped up and investigations were still ongoing.
Arnaud also explained why the police had to move forward with their plans to arrest Fenech after the media got wind of murder middleman Melvin Theuma’s arrest and presidential pardon.
The defence lawyers pushed Arnaud to name the Malta Security Services official who alerted the police that Fenech was leaving on his boat the night of his arrest. Arnaud declined to identify him, while the State Attorney warned that a particular provision in the Security Service Act prohibited him from doing so.
The court will decide on a way forward in the next session.
As it happened:
Friday's case is adjourned. The next sitting is scheduled for October 29.
We'll be back shortly with the highlights of the sitting.
12.50pm The family lawyer says they would need to summon other witnesses to prove risks of granting bail.
But both Soler and Comodini Cachia point out that pending these proceedings, other charges were filed against Fenech. There are also pending magisterial inquiries that are secret in nature as well as ongoing police investigations. How can they get proof from those secret procedures?
"Your problem," Mercieca remarks.
"But its our fundamental rights that you’re violating!" Comodini Cachia replies.
The MSS official
12.30pm The parties still have to resolve the matter about the identity of the MSS official who alerted the police about Fenech leaving Portomaso that November night.
The court suggested that the official's name be written on a paper and placed in the records, to be ‘destroyed’ once case is concluded. But the State Attorney is not happy with that arrangement.
Mercieca says he would be happy for that name to be accessible only to the parties, and it is needed to allow Fenech to regulate his position in this case.
Soler asks the court not to authorise Arnaud to answer any questions about anything to do with MSS. He cites a particular provision in the Security Service Act, prohibiting him from doing so.
The court suggests that the parties prepare submissions on this point for a next sitting.
The Chris Cardona 'narrative'
12.23pm Mercieca asks Arnaud to confirm that the “narrative” cited earlier included facts told to him by Fenech himself.
Mercieca: "And that narrative included Chris Cardona, other masterminds in the murder. And that narrative was also confirmed by (hitman) Vince Muscat’s more recent testimony?"
Arnaud: "Not quite. Vince Muscat told us what he learnt from others. He did mention same names, based on what others told him, hearsay."
No more questions for Arnaud who walks out of the court room.
The freezing order
12.20pm Arnaud is once again asked to step outside of the court room. The State Advocate wants to know if Fenech is facing other charges.
Mercieca wants him to limit the question to the freezing order.
Arnaud is called back and the judge puts the question: do you know of any charges linked to the second freezing order?
Arnaud: "No. What I know is through the media."
Does Fenech still have access to boat?
12.15pm The family lawyers asks if Fenech today still has access to the boat and his father's inheritance, sparking vociferous objections from the defence lawyers.
They say there are two freezing orders on Fenech's assets and he also faces money laundering charges.
Comodini Cachia says that neither she nor the State Advocate have access to that freezing order.
Arnaud says that as far as he knows, the boat and George Fenech’s inheritance fall outside those freezing orders.
The court says the issue is very relevant to this case.
Mercieca declares to the court that Fenech has no access to any property.
The other parties are not willing to rely on that declaration.
Comodini Cachia asks whether Fenech's relatives have access to the boat while he is in jail.
"Police have not seized it. They can’t transfer it but can use it," Arnaud says.
Papers delivered to Fenech during arrest
12.03pm Comodini Cachia steps in again and asks about the paper handed by Dr Adrian Vella to Fenech. Where was the tampering?
Arnaud says the paper handed to him contained a story with Fenech telling police that it was a narrative he was told to tell so as to get a pardon himself.
Comodini Cachia: "Was that narrative what he told you in his statements?"
Arnaud: "Yes, more or less, the content of that narrative was in his later statements to the police. One of the papers reached Fenech before his arrest and the other came to him after the arrest, during police bail."
Mercieca says the papers exchanged had a narrative about individuals and in fact it sparked police investigations "in other directions".
Arnaud: "So far we have not yet managed to put the pieces together, to link that narrative."
Why no action against Keith Schembri?
12pm Arnaud says everything changed when the media got wind that Theuma was being granted a presidential pardon to tell all about the murder.
Mercieca asked Arnaud to confirm that it was Fenech himself who alerted the police that he had seen a copy of the pardon and the letter from Keith Schembri delivered through their mutual doctor.
Arnaud confirms this was correct.
Mercieca: "Do you confirm that Yorgen Fenech also asked for police protection?"
Mercieca: "So every attempt to tamper with evidence was revealed to police by Fenech himself. Did you speak to those two persons (Adrian Vella and Keith Schembri) who were involved?"
Mercieca: "Were they arraigned?"
Arnaud: "No, not yet."
Mercieca: "What are you waiting for?"
The investigator is asked to leave the court room for a minute until Mercieca makes a point.
Mercieca says the risk of tampering is worse than ever and asks why no action been taken against others.
'Nothing is going to happen to us'
11.50am The state advocate has something to ask: What does it signify within the context of bail for a person who has properties and contacts abroad.
The defence object to the phrasing of the question.
Arnaud says that Fenech has easy access to move abroad, with various chats proving that, and that was a concern for police.
"Perhaps not everyone has such means. Thats why we object to bail."
Mercieca steps in and says that the fear was related to property abroad but the police had failed to identify any property. Fenech had travelled abroad several times and always returned to Malta.
"That's the case," Arnaud confirms.
Mercieca: "What led you to suspect that Fenech knew that he was being investigated?"
Arnaud: "The movements were suspicious. At the time we were discussing Melvin Theuma's pardon. Fenech used to tell Melvin that nothing would happen. There would be arrests but police would not take action. But then suddenly, all that changed. Any idea that nothing would happen was suddenly dispelled."
Mercieca points out that it was (former business associate) Johann Cremona who told Melvin Theuma that nothing would happen, not Yorgen Fenech.
Arnaud interjects: "Melvin testified more than once that Yorgen Fenech used to tell him, “we’re strong! We have money. Nothing is going to happen to us.”
Daphne case still ongoing
11.42am Arnaud also confirms that Fenech had a copy of the presidential pardon.
Comodini Cachia: "So do you confirm that Fenech was aware of what the police were investigating."
Arnaud: "That seems to be the case."
Comodini Cachia: "Are investigations into Daphne Caruana Galizia's murder wrapped up?"
Arnaud: "No. The ones into Yorgen Fenech are, but in general they are not."
The task force has included foreign experts too.
The Schembri letters delivered through the doctor
11.40am Laywer Therese Comodini Cachia, representing the Caruana Galizia family, has a question.
Even under police bail, in spite of all conditions, Fenech had managed to discuss the murder with someone else.
Arnaud confirms that police on watch at Fenech's flat did not realise that the businessman had received papers from Keith Schembri delivered through doctor Adrian Vella.
Background: A doctor who treated both Keith Schembri and Yorgen Fenech testified last year that he had served as a go-between for the two men while Fenech was being investigated in connection with the murder of Caruana Galizia. The letter had instructions to pin the murder on former Economy Minister Chris Cardona.
And in the searches at Fenech's home and office, police found documents about his ownership of secret companies 17 Black, Wings Development. In fact, the police's financial crimes unit were informed, Arnaud says.
Fenech was seeking a way out
11.30am The defence lawyer asks the police if they would be willing to adopt those same measures were Fenech to be granted bail again.
Arnaud says the phone chats showed that Fenech had sound contacts abroad.
"To me, the chats were valid and clear enough. Fenech spoke about flights, checking for ways out, times and all. It was clear enough. What else need I check? Obviously my sole concern was related to the homicide and the fear of escape stemming from that."
Mercieca: "You concluded that Fenech was heading to France and had bought property in France."
Arnaud: "No. We didn’t know if he was going by boat until that point. In fact, we had police on watch even at the airport."
A 'phantom fear'
11.20am Mercieca continues to grill the police superintendent. He tells Arnaud how he coudl fear Fenech would abscond and yet he had no problems giving him police bail.
"It was a phantom fear."
Arnaud replies: Yorgen Fenech had asked for a pardon upon arrest. There were police officers stationed at his apartment during police bail, upon agreement with the parties. And besides, all ports were alerted. And police officers were physically on standby at the airport. All those measures remained in place. Those were the reasons we granted police bail."
The crucial pardon dates
11.12am Arnaud is asked if one of Melvin Theuma's pardon conditions was to implicate Yorgen Fenech in the murder.
"No, that's not correct," Arnaud replies.
Mercieca: "Was it to tell all about the murder?"
Arnaud: "Correct. The pardon was not given to implicate Fenech but to give all information he had about the case. And the pardon was given after we had questioned Fenech."
Theuma's pardon was granted on November 25. Mercieca points out that after that date, Fenech got police bail twice, which means the police let him go on police bail after Theuma had told them all he knew about the businessman.
So what prompted the fear of absconding?
Arnaud says the fear set in on November 20, 2019: "Yorgen Fenech made two requests for pardon. The second request was made after Melvin Theuma was granted a pardon."
The trips abroad
11am Mercieca asks Arnaud if he had told the inquiring magistrate that Fenech was abroad just a week before his arrest or that he had made the same boat trip to Sicily before.
Arnaud: "No, I didn't. Again, I wasn’t keeping surveillance myself. I just got the information."
Mercieca: "Do you confirm that Fenech was given police bail several times?"
Arnaud: "Yes. I don't recall offhand the exact dates."
Meanwhile, Fenech is chatting with the other defence lawyer Gianluca Caruana Curran in court.
No tentative date for arrest
10.50am Arnaud is asked if the police had a specific date for Fenech's arrest or just a tentative strategic plan.
"We had no tentative date. It depended on the movements and the results of our investigations."
Mercieca says Fenech frequently used his boat from Portomaso to travel abroad.
Arnaud repeats: a lot was going on in the country that day with media reporting Melvin Theuma's presidential pardon, plus the "movements" at Portomaso.
The judge remarks: "seems that the media was more of a catalyst."
Background: Melvin Theuma was given a presidential pardon to tell all about Caruana Galizia's murder. The self-confessed murder middleman was arrested just days before Fenech set sail from Portomaso. Just hours before Fenech's arrest, the media had revealed Theuma's arrest.
Who alerted the police?
10.40am The defence wants to know who alerted the police to the movement at Portomaso (just hours before Fenech was to leave the island).
"They denied us that name at the compilation. They denied us that evidence. They issued bill of indictment and cut out our evidence abruptly," Mercieca charges.
Arnaud takes objection to this line of questioning.
There is now a debate raging out about naming the MSS officer who gave Arnaud the information that night.
The court insists there would definitely be a ban on that name.
Mercieca says it is vital to identify this person who gave Arnaud the information that apparently sparked the arrest that night.
Suspicious movement at Portomaso
10.35am The defence lawyer points out to the compilation proceedings which said that Fenech's arrest was not planned for November 20.
Arnaud confirms that was correct.
The judge wants to know what happened.
"Because we saw a lot of activity at Portomaso around the boat. There were preparations to set sail and so forth. And in fact that’s what happened," the superintendent replies.
The lawyer says Fenech had a boat and he often travelled on it.
"The people keeping a lookout sensed that activity at Portomaso was suspicious," Arnaud says.
The judge asks if the police ever noticed that Fenech had taken the boat out on previous occasions.
"We were led to take action considering that the activity was happening when the media was reporting that Melvin Theuma’s pardon was being considered."
Arnaud says it was the Malta Security Services which had alerted the police to the "activity" at Portomaso.
Was Fenech aware he was a suspect?
10.30am Defence lawyer Charles Mercieca asks if Fenech was aware he was being investigated for the murder.
"Until November 19 (2019) he didn't, but the activity on the 20th led us to believe that something was up," Arnaud replies.
"Was he ever questioned by other police before the 19th?"
Arnaud says the first arrest warrant was issued on November 20 and as far as he was aware nobody ever questioned Fenech before that date.
Mercieca wants to know whether his client was ever under police bail.
Arnaud says there was no police bail until November 19.
Mercieca: "And do you know that some days before Yorgen Fenech was in France?"
Arnaud: "Yes. There were other times when I was told that he was abroad, coming and going."
The Paris property
10.22am Arnaud walks into the court room and heads straight to the stand where he takes the oath.
Defence lawyer Charles Mercieca fires the first question. He asks if the investigations into Fenech were now closed. Arnaud says they are.
The investigator is questioned about a property purportedly linked to Fenech in Paris. He says the police made their verifications about the property from chats in general.
Mercieca hits back: "What if I tell you that Yorgen Fenech bought no property in France? Could you rebut that? He bought no property as verified by public entities and bank transactions."
Ten minutes later, the defence and the prosecution are still arguing over whether the right investigations were made to verify if the Paris property does indeed exist.
Therese Comodini Cachia, acting on the behalf of the Caruana Galizia family, intervenes: "Keith Arnaud was asked to check if Yorgen Fenech spoke about a property, saying that France was 'less transparent' than London. He was not told to verify the existence of that property."
10.02am Good morning and welcome to this live blog.
We're inside hall 17 of the Valletta law courts, where judge Miriam Hayman will preside over the case.
Fenech has just walked into the hall with three armed guards behind him.
What happened last time?
9.55am The August 20 hearing brought to light several text messages that Fenech had sent out before he was arrested in November 2019.
Fenech exchanged hundreds of messages with his uncle, brother and boat captain in the days leading to his arrest for murder, with all of them pointing to him planning a surreptitious escape.
In the messages, Fenech spoke about moving tens of thousands of euro in suitcases and paying for large transactions in cash.
Who are the key players?
Yorgen Fenech: a business tycoon and heir to a family fortune, who stands accused of complicity in Daphne Caruana Galizia's murder. He has filed today's case.
Keith Arnaud: A superintendent and the police officer who is leading the murder investigation.
Kurt Zahra: A police inspector who is assisting Arnaud in the murder investigation.
Chris Soler: The state advocate.
Gianluca Caruana Curran, Marion Camilleri, Charles Mercieca: Yorgen Fenech's legal team;
Jason Azzopardi, Therese Comodini Cachia: lawyers appearing for the Caruana Galizia family.
Miriam Hayman: The judge presiding over this case in the constitutional court.
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