Updated 5.35pm with Muscat reaction
Former prime Minister Joseph Muscat was questioned by investigators working on the Daphne Caruana Galizia murder case while under caution, a homicide inspector told a court on Monday.
Muscat was called in for questioning on August 24 and spent around 90 minutes at the police depot answering investigators’ questions. He subsequently told reporters that questioning revolved around a claim made by murder accused Yorgen Fenech and that police had assured him he was “not a suspect” in the case.
On Monday, inspector Kurt Zahra confirmed that Muscat was spoken to under caution, meaning he was warned that anything he said could be used against him in court and that he had the right to remain silent if he feared incriminating himself.
Zahra was answering a question by lawyer Jason Azzopardi, during a hearing in the compilation of evidence against Fenech.
'Standard procedure' - Muscat
In a reaction, Muscat said that it was standard procedure for questioning to take place under caution.
"I asked on the record whether I was being investigated in this case. Police confirmed on the record that I was not," he wrote on Facebook.
Muscat said he had answered all questions put to him and that the interrogation had been recorded by police.
Fenech told interrogators that himself, Muscat and former OPM chief of staff Keith Schembri were “like brothers” and shared a WhatsApp chat group between themselves, Zahra testified.
The inspector told the court that police believe Caruana Galizia, who was blown up in a car bomb in October 2017, was killed because of something she was about to reveal.
In 2017, he said, Caruana Galizia had received a leaked cache of over 600,000 emails related to the Electrogas power station deal. Fenech was a director of the Electrogas consortium until he resigned that post following his arrest in November last year.
The inspector also confirmed that police were investigating an alleged attempt Fenech made to procure cyanide, a fast-acting potentially deadly chemical that is used as a poison. Questions about that alleged attempt, made by Azzopardi, immediately drew protests from Fenech’s defence team.
Police were also looking into other issues they had discovered in the course of their investigations, Zahra added.
Mystery phone call
The day’s court session began with the testimony of Fenech’s wife, Marlene Fenech.
She told the court that she found a missed call on her phone from her husband’s mobile phone number last Friday at 2.30pm. Fenech’s phone was seized by investigators as part of the murder investigation and is currently at Europol headquarters in the Netherlands.
Marlene Fenech said that she tried calling back, found the phone not in a position to respond, and then filed police report
The court gave prosecutors until Tuesday morning to file a reply to that claim.
Answering questions, Zahra told the court that interrogators grilling Fenech had not played him recordings of statements given by murder middleman Melvin Theuma, Fenech’s business partner Johann Cremona or his doctor Adrian Vella.
Fenech’s lawyer Gianluca Caruana Curran argued that police had only played his client “three or four” recordings out of around 200 in total and said Fenech had offered to show Zahra his phone to prove he had never intended to escape.
“And on that phone there were messages to relatives telling them to 'take care of my children',” the witness shot back.
Fenech’s defence lawyers requested bail for their client, arguing that he had now spent months in police custody and that prosecutors had failed to justify their objections to Fenech being released on bail.
The court, presided by magistrate Rachel Montebello, said that it would issue a ruling on that request on Tuesday.
Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca appeared on Fenech’s behalf.
Inspectors Keith Arnaud and Kurt Zahra prosecuted. Lawyers Jason Azzopardi and Therese Comodini Cachia appeared on the Caruana Galizia family’s behalf.
As it happened
Court session ends
3.55pm Mercieca wraps it up, and the court session is concluded.
Yorgen Fenech is escorted out of the courtroom. He stops briefly to hug his mother Patricia as he walks past her and then continues on his way.
The court will decide on Fenech's bail request tomorrow, and after that the file will be referred to the attorney general's office. The case will continue once those files are sent back to the court.
This live blog will end here. We will have a summary of the hearing's key pieces of testimony available at the top of this article soon. Thank you for having joined us.
More arguments for bail
3.43pm Mercieca continues to make his case for Fenech to be given bail.
He notes that the attorney general has argued that bail should be denied due to concerns about tampering evidence.
“Where is the proof of such tampering? All the evidence is preserved in the magisterial inquiry,” he says, adding that the prosecuting inspector has confirmed that the inquiry is now closed.
Mercieca argues that in reality, the attorney general is objecting to bail on the grounds that Yorgen Fenech might tamper evidence which investigators have yet to learn about.
“Fenech is trustworthy and has no business interests abroad,” Mercieca tells the court. That latter claim draws an incredulous remark of disbelief from the Caruana Galizia family and its lawyers.
[Last February, French prosecutors said investigators there were probing Fenech’s assets in that country]
Mercieca wades back on his initial claim and says that there is “only a family hotel in France” and then argues that there is no risk of Fenech fleeing the country, that he will abide by all conditions set and that his mother is willing to serve as a guarantor.
This is quite a lengthy submission by Mercieca.
"Please conclude," the magistrate tells him.
Fenech's lawyers demand AG answers on bail
3.28pm Lawyer Charles Mercieca is making his case for Fenech to be given bail.
Bail is the rule and not the exception, he says, and so too is an accused’s presumption of innocence.
The lawyer cites examples of accused people in other high-profile cases being granted bail, from [drug trafficker] Meinrad Calleja to Francesco Fenech and Lorin Scicluna, who stand accused of a racially-motivated murder.
If the attorney general’s office objects to bail, it must present evidence to back those objections up, Mercieca adds.
Mercieca continues to make his legal arguments, but is interrupted by a sudden shriek on the court’s PA system.
He then goes on: “We’ve been constantly hearing about the prosecution’s objection on the basis of a phantom fear of public disorder. Where is this public disorder? Let the prosecution prove this”.
3.15pm Fenech’s lawyer Charles Mercieca says that their client’s rights are being breached by the long delays in the case. [Fenech has been in police custody since he was arrested and charged last November].
Mercieca notes that the attorney general’s office broke the rules by filing its reply to Fenech’s bail application late, and asks for that note to be removed.
The magistrate says she will decide on that in her bail decree.
[Fenech’s lawyers filed the application on August 26. The attorney general had one day to reply. Their reply was filed on August 28, two days later].
Court to decide on defence requests tomorrow
3.08pm The case will continue tomorrow (Tuesday) at 12.30pm, when it will decide on Fenech’s request for bail as well as a request his lawyers made earlier today for a constitutional reference.
Tomorrow’s session will be limited to delivering those two decisions, the magistrate says.
Matthew Caruana Galizia testimony postponed
3.04pm Matthew Caruana Galizia, one of the victim’s three sons, was due to testify today too.
But there’s no time for him to do so, as the magistrate has said that today’s session must be wrapped up by 3.30pm.
Lawyer Jason Azzopardi, representing the Caruana Galizia family, suggests putting his testimony off to a later date. The court accedes to that request.
Lawyer objects to question
2.59pm Fenech’s lawyer Charles Mercieca argues that inspector Zahra should never have been asked whether Fenech “showed remorse” during his interrogation. He says the question violates his client’s presumption of
innocence. [Zahra was asked that earlier during today's sitting by lawyer Jason Azzopardi].
The magistrate takes note of Mercieca's objection.
Call log request
2.54pm Fenech's defence team has also asked for logs of calls made between Cutajar and il-Ġojja to be made available - a request upheld by the court.
Logs from November 2019 to now will be presented.
Prosecutors will be summoning representatives of local telecom service providers to testify.
Defence suspends cross-examination
2.46pm Fenech's defence team suspends its cross-examination of inspector Kurt Zahra.
The magistrate now addresses Zahra's colleague, inspector Keith Arnaud, and says that the defence had asked for an IT expert to be appointed to copy data extracted from Melvin Theuma's devices.
Arnaud says the prosecution has no objection to that.
The magistrate says she will deliver a verdict on that request tomorrow (Tuesday).
A post-it note?
2.43pm Zahra is asked whether he had any post-it notes attached to his notes.
“I don’t remember,” he says. “If I did, it was by mistake”.
Defence lawyers say that one such note on the missing pages bore the initials 'LC' [presumably for former commissioner Lawrence Cutajar].
Zahra denies that outright. "No, definitely not," he says.
The magistrate holds up a small slip of yellow paper.
"Is it by chance this sticky note?" she asks. "That was a note put there by the court itself."
Mystery solved. There's laughter in the courtroom at the discovery.
2.38pm Caruana Curran continues his questioning about Zahra’s notes.
Some pages of the inspector’s notes are missing, the lawyer notes. Where are they?
Zahra: Yes, I had removed pages which featuring information linked to the pardon [request] and what Yorgen Fenech had said about his request for pardon. And I had informed the court about it.
The court asks the witness to check exactly what he removed from his notes, to ensure nothing else linked to his court evidence is missing.
Recordings and il-Ġojja
2.34pm Back in the courtroom, lawyer Caruana Curran has asked for logs related to the period November 20 to 30, when his client was under arrest.
He tells the court that at one point, Fenech’s defence team had been told that [former deputy commissioner] Silvio Valletta wanted to speak to them. The lawyers waited at the police depot but after two hours were told they could leave and that Valletta would contact them.
Inspector Zahra, on the witness stand, says he is not sure about this.
Caruana Curran moves on. He reads from a document which states that during his interrogation, il-Ġojja had refused to answer questions even after being played recordings of conversations between Theuma and Fenech.
[It seems as though Caruana Curran is making reference to notes drawn up by Zahra himself, presented in court earlier this summer.]
Zahra says he recognises the note but says no recordings were played to il-Ġojja. He says he would need to check whether there were any phone taps.
Caruana Curran: What was said in those conversations?
Zahra: I cannot answer that, I’d need to check.
The lawyer tries to press on but is stopped by the magistrate, who tells him to allow the witness to verify.
What have we heard so far?
2.27pm Just joining us? Inspector Kurt Zahra has been testifying today. He's said:
- He believes the journalist was killed because of something she was about to reveal;
- Joseph Muscat was questioned by the police ‘under caution’ last Friday;
- Yorgen Fenech, Joseph Muscat and Keith Schembri had a WhatsApp group between themselves. ‘We are like brothers,’ Fenech had told police;
- Police are investigating an attempt Fenech made to import cyanide, a potentially deadly chemical;
- Fenech showed 'no remorse' during interrogation;
- A day after Caruana Galizia’s murder, middleman Melvin Theuma went to Fenech’s apartment and saw a group of persons gathered around a table. Among them was Electrogas director Turab Musayev;
- Fenech claimed he had paid so much money to Theuma, that once Keith Schembri offered him money to hand over to the murder middleman;
- Fenech had sent messages to relatives asking them to take care of his children, shortly before he was arrested on board his boat;
- Fenech’s wife received a call from her husband’s phone number last Friday;
- Fenech wanted to give information about government corruption when under interrogation;
2.25pm Court proceedings can resume following a brief recess.
Inspector Zahra will face a few further questions under cross-examination.
2.05pm The defence team has asked for a short break after a two-and-a-half hour sitting. Court suspends sitting until 2.15pm.
2pm Police had played some three to four recordings to Fenech during his interrogation.
When asked, Zahra says the police did not play out statements by Theuma, Johann Cremona and Adrian Vella to Fenech.
After the pardon request from Fenech was turned down, defence lawyers were given all recordings.
Caruana Curran says that out of some 200 recordings, police only played three to four recordings to Fenech.
Caruana Curran says that during interrogation, Fenech had asked for his mobile to prove to the inspector that he never intended to escape.
Zahra interjects: "And on that phone there were messages to relatives telling them to 'take care of my children'.
The defence lawyer grills the police inspector and asks him whether he felt the need to arrest other individuals who had been mentioned in the secret recordings, like former deputy police chief Silvio Valletta and Keith Schembri.
When the new recordings came to light, Fenech's claims had indeed been corroborated, Caruana Curran says.
Il-Ġojja's no reply
1.38pm Zahra confirms that doctor Adrian Vella had assisted Fenech when he was under arrest.
But the police inspector does not know what the doctor had prescribed before Fenech was taken to hospital.
Zahra is asked about the interrogation of Edwin Brincat (il-Ġojja), but the police inspector says he had not answered any questions.
Zahra: "He was asked about what he knew of murder and what Theuma had told him about it. He did not answer anything."
Caruana Curran: "Arnaud and Zahra had questioned il-Ġojja. Were those questions discussed with commissioner beforehand?"
Zahra: "No". (Previous court sessions had revealed the friendship between Brincat and the then police commissioner).
Caruana Curran: "Did you know that il-Ġojja went to Cutajar’s house?
Zahra: "I got to know about that after the arrest."
Zahra says he does not believe the police commissioner was present during the interrogation of il-Ġojja, but he could not exclude the possibility that he went in at some point.
Fenech wanted to reveal corruption
1.25pm On November 25, Fenech had told police during an informal meeting that he wanted to speak about corruption.
Pointing out that the police commissioner was also present for the meeting, Zahra says they were questioning the suspect about the murder.
"We were not into economic crimes... had the defence wanted, they had all time to speak to economic crimes."
Caruana Curran: "Yorgen Fenech had told you that you don’t want to listen, that you are defending a corrupt state!”
Zahra: "We often hear that. We sensed certain delaying tactics at the time."
Cutajar contacted il-Ġojja
1.20pm Lawyer Caruana Curran takes the stand and says it was Fenech who had told police about the burner phone and had personally handed over the phone number.
He asks about informal meetings with Fenech before the recorded interrogations and who took the information about Theuma's pardon request to the government.
Zahra says he and Arnaud had prepared a report on that issue and passed it on to the police commissioner.
Caruana Curran interjects: "This was the same Cutajar, a friend of il-Ġojja, the same Cutajar who contacted il-Ġojja before the latter testified in court... and Cutajar who allegedly received money."
Zahra says Theuma insists he was receiving the information from il-Ġojja and not Cutajar.
Thousands of emails about Electrogas
1.10pm Zahra confirms that since the start of 2017 Caruana Galizia had received over 600,000 emails over leaks about the Electrogas power station.
"That’s why we believe that she was killed because of something she was about to reveal," Zahra says.
He confirms that the Economic Crime Unit is also carrying out its own investigation.
Azzopardi asks about Fenech's attempted importation of cyanide. But his remark elicits protests from the defence team.
Zahra says that police are investigating not only the murder but also anything else that may be discovered.
1.05pm Asked if Fenech had ever shown remorse for the four to five hour interrogation, Zahra replies that he didn't.
Azzopardi asks what Fenech did after he was handed information by Keith Schembri about the December 5, 2017 raid which landed the three alleged hitmen, he said he informed Melvin Theuma.
"He had also got the message that set off the bomb."
The meeting with Muscat
12.55pm Fenech said that the price tag for the murder was actually €120,000 then upped to €150,000. He had given Theuma €50,000 in an envelope drawn out of a car boot to cover the €30,000 deposit the middleman had forked out.
"It was Keith Schembri who told me to proceed (mexxi) with the murder," Fenech had told the police.
Zahra: "That was the reason why I said that Fenech never denied his involvement in the murder and what led me to press charges."
When summoned to Castille, Muscat had asked Fenech if he trusted Theuma.
“Not really because he’s recording me,” Fenech had told the then prime minister.
Fenech knew suspected hitman Vince Muscat had started speaking up about the case because he had been told by Schembri.
Asked by Azzopardi, Zahra reveals that Muscat was interrogated under caution when he was recently summoned to the police headquarters.
Background: Muscat was called in for questioning on August 21 and spent roughly 90 minutes being interrogated. He had said at the time that police had assured him that he was “not a suspect” in the case.
What does 'interrogation under caution' mean?
The term 'interrogate under caution' implies that a person has been warned that anything they say may be used against them in a court of law. In essence, a person interrogated under caution is told by police that they have the right to remain silent or to not answer any question that might incriminate themselves.
Being interrogated under caution does not automatically mean that a person has been arrested.
Fenech felt blackmailed
12.50pm Scared for his life, Theuma had passed on snippets of secret recordings to Fenech.
"He was the middleman between hitmen and Fenech. If something happened to him, he alone could uncover Fenech. So he had handed some recordings to Fenech to prove he had some evidence in hand."
Under interrogation, Fenech said he could not remember those recordings.
Fenech said he felt threatened, then qualifying that as saying he felt he was being blackmailed.
'Brothers' with Muscat, Schembri
12.40pm Azzopardi asks about a phrase in one of the recordings which had been played out to Fenech during interrogation.
Azzopardi: "Why did he say 'I chose you for this job'. "What did that mean?"
Zahra: "When I asked Fenech about the recordings, he had always replied it was in connection with the case” - Caruana Galizia's assassination.
Prime Minister Joseph Muscat knew that their mobiles were tapped, Fenech had said.
He says that Muscat, Schembri and Fenech had a chat group.
"We're like brothers," Fenech had told investigators.
Schembri's money offer
12.35pm Theuma was troubled most by the promise of bail and money for the three alleged hitmen. When that didn't happen he felt betrayed and began to pester Fenech.
Fenech told investigators that he gave money to Theuma to get rid of him.
Azzopardi: "Did Fenech ever seek proper legal help, go to police to handle Theuma?"
Zahra: "No, we don't have that information."
Fenech had claimed that he had paid so much money to Theuma, that once Keith Schembri offered him money to hand over to the murder middleman.
That was when Schembri had given Fenech some €80,000.
Where did Theuma go after the murder?
12.25pm Melvin Theuma had given Fenech a copy of his phantom job agreement with the government, his photo with Keith Schembri at Castille as well as receipts.
Zahra says the job was offered just days after speaking to Degiorgio about murder in 2017.
Azzopardi: "Where did Melvin Theuma go day after the murder?
Zahra: "He said he went to Yorgen Fenech and saw a group of persons gathered around a table. Among them, was Turab [Musayev]."
Musayev is the Azeri-British National who was SOCAR Trading's representative on the board of Electrogas.
A call on a burner phone
12.20pm And after almost an hour of legal wrangling, the case finally resumes. First witness is inspector Kurt Zahra.
Lawyer Jason Azzopardi fields the questions.
We go back to the day when Dr Adrian Vella had called for Fenech to take him to Gozo, just days before his arrest.
A call came through to Fenech from his brother via a 'burner phone', which is normally used to communicate with others involved in the criminal world.
'Orchestrated campaign to silence us,' parte civile lawyer argues
12.05pm Parte civile lawyer Jason Azzopardi stands up. He says that parte civile only has a standing at this stage of the proceedings, and therefore every time it is halted or blocked, the rights of the victim's family will suffer.
Azzopardi says there is an orchestrated campaign to hinder and silence the victim's legal team.
He asks for court protection so as to be able to continue with its job. He says that the AG and parte civile team filed a joint note earlier this morning. They have similar but not identical aims, he explains.
Who has access to accused's phone?
11.58am Inspector Zahra wants to clarify something. He says Fenech's phone is in the hands of Europol experts at The Hague. The prosecution only has a copy of the data.
The copies of the phone data were only exclusively held by units of police and task force working on the murder probe and other relevant crimes, and no one else, Zahra stresses.
He categorically denies giving access to such data to parte civile lawyers.
Fenech's wife takes the stand
11.53am Yorgen Fenech's wife Marie has been called to the stand and asked to confirm the incident.
She says that last Friday at 2.30pm she found call from her husband’s mobile phone number.
"It was a missed call. I was driving. After some half hour I called back and it was not in a position to respond," she explains.
She says that she called the lawyers and then filed a police report.
The magistrate gives the prosecution until tomorrow morning to file its reply.
'Cancel all procedures'
11.50am Mercieca has one final word. The defence is asking for cancellation of all procedures so far, because they are in breach of the accused’s rights. The defence asks for a constitutional reference.
Galea Farrugia says he will reply in writing.
He tells defence to attach the mentioned Facebook posts to their application so that prosecution may reply accordingly.
11.45am Mercieca stands up to say that the accused is being hindered in his defence so that evidence admissible at trial stage may be checked/controlled by the defence.
As the lawyer is about to continue, the magistrate interrupts. She says that such arguments should have been written in an application rather than minuted in court.
“Don’t use court minutes to make such arguments,” the magistrate says, and asks Mercieca to keep his intervention brief.
Mercieca says it appears that Facebook posts uploaded by parte civile lawyers and third parties show they have access to a volume of evidence which the defence do not.
A phonecall on Friday afternoon
11.35am Last Friday at 2.30pm Yorgen Fenech's wife, got a call from her husband's phone number, currently seized by police and exhibited in the records of the magisterial inquiry.
The magistrate is minuting this fact. She is told that a police report has been filed at the Sliema police station.
The defence declares that a denial of access to Fenech's phone under such circumstances, when third parties have access and they do not, violates the accused’s rights.
11.32am The defence team want to rebut what was said in last sitting.
Defence lawyer Charles Mercieca say that it appears that parte civile lawyers and certain local media have access to Yorgen Fenech's mobile phone. And yet, until today, the defence team have no access to his phone.
Mercieca asks the court to refer the matter to the first hall, civil court for any constitutional remedy.
Off we go
11.30am The magistrate takes her place.
First witness is inspector Kurt Zahra who informs the court that his cross examination will continue and that the victim's son Matthew Caruana Galizia will also testify.
Fenech enters court room
11.05am Yorgen Fenech has entered the court room, escorted by security guards. Lawyer Gianluca Caruana Curran has a quiet word with him.
Deputy Attorney General Philip Galea Farrugia and Nadia Attard from the AG's office enter the hall. They will be assisting the prosecution.
We're still waiting for magistrate Rachel Montebello to take her place.
10.55am Witnesses and family members of both the accused and the victim are gathering in the court room. We're informed that inspector Zahra is expected to continue giving details of November's interrogation.
Details of an interrogation
During the last sitting, police inspector Kurt Zahra revealed details of Fenech’s police interrogation following his arrest in November. The businessman had claimed that:
- Former OPM chief of staff Keith Schembri wanted to murder Caruana Galizia;
- Schembri allegedly paid murder middleman Melvin Theuma €85,000;
- After the murder, three men knew of Fenech’s involvement: Joseph Muscat, family doctor Adrian Vella and Fenech business associate Johann Cremona;
Schembri called Fenech ‘some 30 times’ on the day of Theuma’s arrest;
Schembri wanted to help him escape from the country;
- Muscat told him to 'control' Melvin Theuma during one of two conversations they had;
- Muscat also warned him about a police raid on Theuma and asked if he “trusted” the taxi driver.
Both Schembri and Muscat have denied the claims.
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