Yorgen Fenech's bid to refer an alleged breach of rights to the constitutional court was denied on Tuesday, with a court ruling that the request was “frivolous and vexatious”.
Magistrate Rachel Montebello found no merit to arguments presented by Fenech’s legal team as part of their request for the constitutional reference, at the end of a three-hour sitting in the compilation of evidence against the murder suspect.
Fenech, a millionaire business tycoon who was arrested one year ago, stands accused of complicity in the murder of journalist Daphne Caruana Galizia, who was killed in October 2017. He is pleading not guilty to that and other charges.
Fenech’s lawyers had requested a constitutional reference during a sitting held one week ago, in which lawyer Charles Mercieca argued that the attorney general’s timing in sending case files back to the magistrate meant that the defence could not summon key witnesses to testify again.
Among those witnesses are self-confessed murder middleman Melvin Theuma and Fenech’s business associate Johann Cremona.
On Tuesday, magistrate Montebello dismissed that line of argument, noting that nothing was stopping Fenech’s defence team from presenting those witnesses at a later date.
It was the second time Fenech’s lawyers have tried and failed to have an issue referred to the constitutional court – the country’s highest court.
Jason Azzopardi testifies
Earlier in Tuesday’s sitting, the court heard testimony from Caruana Galizia family lawyer Jason Azzopardi.
Fenech’s defence team have argued that Azzopardi breached their client’s presumption of innocence when he gave a radio interview in which he said that he believed Fenech is guilty.
Lawyer and Opposition MP Jason Azzopardi. Photo: FacebookAzzopardi stood by that remark when asked about it on Tuesday, telling the court “God forbid if I didn’t believe in the case I’m representing... I am not a public official, nor a functionary or agent of the state."
Lawyer Charles Mercieca disagreed and argued that Azzopardi, who is also an Opposition MP, represented a constituency which included people who might be summoned to judge Fenech as jurors.
People in his position had an added responsibility to be careful when speaking, he said.
Therese Comodini Cachia, who also represents the Caruana Galizia family, argued that the defence team had presented no proof to back their claim that the radio interview had harmed their client, and were acting as though the trial was imminent when it was not.
If Azzopardi, who represents the Caruana Galizia family, did not believe that Fenech was guilty, he was “wasting the court’s time”, she said, as she noted that many others also expressed their views about proceedings.
“What about those influencers on social media who speak about the case though they are not at all related to it?” she asked.
The magistrate said she would deliver a decree on the matter in chambers.
The case continues on November 26.
Inspectors Keith Arnaud and Kurt Zahra and deputy attorney general Philip Galea Farrugia prosecuted. Lawyers Charles Mercieca and Marion Camilleri appeared for Fenech. Lawyers Jason Azzopardi and Therese Comodini Cachia represented the Caruana Galizia family.
As it happened
Court adjourned
2.45pm There won't be any witnesses today - the court is adjourned to November 26 at 10am, with subsequent sittings on November 30 and December 2.
Mercieca files an application
2.36pm Defence lawyer Charles Mercieca says he has filed an application about an incident that happened yesterday. He would like to have something minuted, but the magistrate stops him in his tracks: she will first see the application, she tells him.
Lawyers consult their calendars
2.30pm Witnesses will now be heard according to the list presented by the attorney general, the court has decreed. Lawyers discuss the court dates.
Second failed attempt
2.25pm It is the second time Yorgen Fenech's lawyers have tried and failed to refer an issue concerning this case to the constitutional court.
The first constitutional reference they had sought concerned access to Yorgen Fenech's phone data. Defence lawyers said their client's rights were being breached as they had not been given access to the data.
The court had disagreed, noting that the data had not yet been presented in court.
Constitutional reference rejected
2.22pm Magistrate Rachel Montebello rejects Yorgen Fenech's request for a constitutional reference.
She says the court does not agree with the defence's argument that the procedure adopted when the attorney general handed documents over left the accused at a disadvantage or deprived him of the right to present evidence at a later stage.
Nor does it agree with the defence's argument that the attorney general was racing to present evidence. The attorney general is bound to gather all evidence for and against the accused and is strictly bound by the law to send all evidence back to the magistrate.
There is nothing preventing the accused from asking for the evidence to be presented, the magistrate notes. Nobody is depriving the accused of the right to hear from witnesses his defence team requests.
The defence team's claim about the accused's rights being breached is frivolous and vexatious, the court concludes.
Tight on space
2.03pm Today's session is being held in a smaller courtroom (hall 17), and space is at a premium - far from ideal conditions in the midst of a pandemic.
Yorgen Fenech's wife, who previously stood on the side as she had nowhere to sit down, has now managed to find a seat closer to him.
Two of Daphne Caruana Galizia's sons, Matthew and Paul, sit patiently on a bench at the back of the hall.
Court back in session
1.48pm Following a 45-minute break, the court session resumes.
The court will first issue a decree on the constitutional reference which Fenech's defence team requested last week.
[Fenech's lawyers have claimed that prosecutors had breached their client's right to a fair trial by sending case notes back to the magistrate just as an application they had filed was being reassigned to a different judge. They said this prevented the court from hearing important witnesses, such as Melvin Theuma, again.]
Court to decree later
12.52pm The court says it will issue a decree on this matter at a later stage. Two hours into today's session (and after last week's session was entirely taken up with procedural issues) the court can turn its attention to the actual case at hand - the compilation of evidence against Yorgen Fenech.
The magistrate has suspended the hearing until 1.45pm. We'll be back shortly.
Mercieca makes a point
12.49pm Charles Mercieca has more to say about the issue - he argues that parte civile lawyers must gather both evidence against the accused as well as evidence in the accused's favour.
Long road ahead
12.41pm A single radio interview cannot be defined as a "violent" press campaign and there is still a long way to go before the case reaches its trial stage, Comodini Cachia adds.
By then, so many other factors - from new evidence to comments by the defence team itself - may be in play, she adds as she wraps up her legal argument.
Azzopardi's 'obvious' belief
12.33pm Comodini Cachia returns to a question Azzopardi was asked during the radio show: “So in your (plural) opinion, is Yorgen Fenech guilty?”
Azzopardi answered that question in his capacity as the Caruana Galizia family’s lawyer, she says. It’s obvious he must believe that, otherwise he would be wasting the court’s time.
Comodini Cachia then refers to an EU directive which Mercieca made reference to.
“I happened to be one of those who drafted it, so I know something about it,” she tells the court.
The directive concerns the definition of public officers and public statements made by public authorities. But it does not define public authorities and does not delve into the presumption of innocence, she says.
'What about those social media influencers?'
12.28pm Mercieca ends his legal argument, and now Therese Comodini Cachia makes her rebuttal.
Defence lawyers keep making the same broad arguments, she says, “as though this case is going to trial tomorrow”.
The defence team have not provided any evidence that there was a breach, nor have they provided any proof of any irremediable harm or damage.
“What about those influencers on social media who speak about the case though they are not at all related to it?” Comodini Cachia asks.
Azzopardi's two hats
12.20pm The crux of the defence team's argument is that Azzopardi, who is both a lawyer in this case as well as an MP, represents his constituency and therefore must weigh his words with extra caution.
Voters in Azzopardi's district could end up being summoned to sit on a jury panel that will judge Fenech in a few years' time, Mercieca argues.
The lawyer continues to hammer his point home, citing local case law and European Court of Human Rights judgements.
Mercieca argues that even when acting as a parte civile lawyer, Azzopardi must not breach the presumption of innocence. So there are two infringements in this case, the defence lawyer says, one under each of Azzopardi's "hats".
Meanwhile, Azzopardi's colleague as parte civile lawyer, Therese Comodini Cachia, waits patiently with her arms crossed. Yorgen Fenech sits quietly and looks down, occasionally fiddling with his hands.
This is a lengthy intervention by Mercieca.
Mercieca's soliloquy
12.06pm Defence lawyer Charles Mercieca launches into a lengthy speech about the presumption of innocence and the need for safeguards to prevent the process from degenerating into a mock trial.
The higher a person's standing in society, the more attention they must pay to what they do and say, Mercieca argues.
As the defence lawyer speaks, Azzopardi has a word with inspector Kurt Zahra and the accused, Fenech, speaks briefly with one of his guards.
In the public domain
12pm Mercieca asks about talk of a pardon for suspected hitman Vince Muscat (il-Koħħu). Azzopardi refers to an interview with il-Koħħu's lawyer Marc Sant and that means he was talking about something already in the public domain.
"I limited myself to what was already said in public."
On the show, Azzopardi said he was talking as parte civile lawyer, even saying the family had not yet been consulted about the issue.
"But I was also speaking as a private citizen."
Therese Comodini Cachia has a question too.
She refers to a question put by the presenter to Jason Azzopardi which was: "In your (plural) opinion is Yorgen Fenech guilty?" Who is "your"?
Azzopardi replies: "Obviously that meant all lawyers acting parte civile. Parte civile and prosecution share similar roles. This is common knowledge, based on law."
He says that in this case he represents the interests of the victim's family and he does so with no shame.
Azzopardi stands by his comment
11.50am Asked about the radio show, Jason Azzopardi says the article of law on which defence is basing its claim of wrongdoing speaks of 'public authorities' and the lawyer insists he is not a public authority.
Azzopardi says that the defence left out a question that had been put to him on the show. The question was: "Yorgen Fenech is accused of being the mastermind".
Mercieca: "And you said that Yorgen Fenech is guilty?"
Azzopardi: "Yes, and God forbid if I didn’t believe in the case I’m representing... I am not a public official, nor a functionary or agent of the state."
Comments on a radio show
11.40am While explaining the nature of the radio show, Debono presents a copy of the programme hosted by academic Andrew Azzopardi on October 31.
She is asked who had invited Jason Azzopardi on the show. She says she had not made the call herself.
Mercieca asks Jason Azzopardi to testify: "With pleasure," the lawyer replies.
But the magistrate won’t have that. Let’s not degenerate, she says, pointing out that the recording is self-explanatory. She then accepts Azzopardi to the podium.
Court warns the lawyers to be professional “as always” and to limit questions to this particular issue and no more.
The tension between the two lawyers is palpable.
We're off
11.30am Half an hour late and we're finally off. The magistrate takes her place.
The magistrate says she will first tackle the accused’s application about his alleged breach of human rights.
This relates to a comment that parte civile lawyer Jason Azzopardi made on a radio show on 103FM.
Newsbook editor-in-chief Sylvana Debono is called in.
Parties, witnesses gather
11am Caruana Galizia family members are gathered inside the court room. Fenech has just been escorted in. He's having a word with his lawyer as his wife stands on the side of the room.
We're in hall 17 of the court, which doesn't really lend itself well to 'social distancing'.
The latest sittings
10.55am In a hearing held on October 21, Fenech's defence team alleged that Melvin Theuma had "bought" his presidential pardon for €17,000 with the consent of former police commissioner Lawrence Cutajar.
Cutajar is himself under investigation for having secretly met with a friend of Theuma's, Edwin Brincat known as il-Ġojja, without informing the murder case's lead investigators.
In other hearings held in October, lawyers argued over data obtained from Yorgen Fenech's electronic devices and prosecutors cross-examined statements made by various witnesses, albeit behind closed doors.
The sittings had also heard how Fenech told interrogators that himself, Joseph Muscat and former OPM chief of staff Keith Schembri were “like brothers”.
An inspector had also confirmed that police were investigating an alleged attempt Fenech made to procure cyanide.
Yorgen Fenech outside court in November 2019. Photo: Mark Zammit CordinaWho are the main players?
Yorgen Fenech: the businessman charged with being the mastermind behind the murder;
Melvin Theuma: the self-confessed middleman in the murder;
Vince Muscat, Alfred Degiorgio, George Degiorgio: the alleged hitmen;
Keith Schembri: the OPM's former chief of staff;
Lawrence Cutajar: the former police commissioner;
Keith Arnaud, Kurt Zahra: the lead police investigators;
Kenneth Camilleri: a member of Joseph Muscat's security detail;
Johann Cremona: a business associate of Yorgen Fenech's.
Edwin Brincat (Il-Ġojja): a friend of Lawrence Cutajar and Melvin Theuma;
Rachel Montebello: the presiding magistrate;
Gianluca Caruana Curran, Marion Camilleri, Charles Mercieca: the lawyers appearing on Fenech’s behalf;
Jason Azzopardi, Therese Comodini Cachia: the lawyers appearing for the Caruana Galizia family.
Philip Galea Farrugia, Nadia Attard: representing the AG’s office and assisting the prosecution.