Updated 2.45pm

Yorgen Fenech’s lawyers have filed a legal application calling for the murder case to resume and for middleman Melvin Theuma to return to the witness stand for cross-examination.

Records of the compilation of evidence are currently at the Attorney General’s office and the next date for hearing is scheduled for December 2. 

But Fenech’s lawyers are seeking to bring that date forward, requesting the Criminal Court order that the records be sent back to the magistrates’ court for continuation. 

The application also requests Melvin Theuma return to the witness stand under cross-examination.

The self-confessed middleman in the plot to assassinate Daphne Caruana Galizia, was due to testify on July 22 but plans were disrupted on the eve of the sitting when Theuma was found in a pool of blood at his Swieqi apartment.

He ended up in a critical condition after suffering knife wounds inside his home, in what police described as an apparent attempt at self-harm.

Theuma’s presidential pardon was expected to take centre stage in the murder proceedings, after Fenech’s lawyers cast doubt on that pardon, saying that there was another recording about which the middleman had not testified. 

At a previous sitting, the lawyers had questioned Theuma as to whether former police commissioner Lawrence Cutajar was paid €30,000 in exchange for his presidential pardon, a claim denied by Theuma. 

The middleman, a taxi driver who worked at a hotel owned by business tycoon Fenech, was given the pardon on condition that he revealed all in the plot which led to the murder of the journalist in October 2017.

Call to cross-examine Johann Cremona

Fenech’s lawyers are now seeking to bring back Theuma to the witness stand, for further cross-examination, and together with him also Johann Cremona, a business associate of Fenech.

Cremona had testified last June, during a nine-hour long session whch came to a dramatic finish with the court ordering ex-police commissioner Cutajar to be formally investigated, following allegations that he tipped off Theuma. 

In today’s application, Fenech’s lawyers are also requesting all service provider data gathered in the course of the investigations, as well as those voice recordings by Theuma which had come to light early in 2020.

Other evidence requested includes recordings of all phone taps in the prosecution’s hands, particularly those related to calls between Edwin Brincat il-Gojja and Cutajar, Theuma and Brincat as well as Theuma and former assistant police commissioner Mario Tonna.

Experts appointed by the court at the July 22 sitting to handle transcripts of recordings, are also to present their work, Fenech’s lawyers say.

Prosecuting Inspector Kurt Zahra and a Vodafone representative also feature among those listed in today’s call by Fenech’s lawyers for further testimonies. 

During the last hearing on October 21, Fenech’s defence team had alleged that the whole case had been “orchestrated,” that the prosecution were coaching Theuma on how to testify and that certain recordings remained “hidden.”

“These are evidence we’ve been asking for and still not received. And meanwhile investigations continue, while Yorgen Fenech is in jail, presumed innocent. This case was orchestrated by a liar to blame it on Fenech. This goes against presumption of innocence and fundamental rights of Fenech,” lawyer Charles Mercieca had argued at the compilation presided over by magistrate Rachel Montebello. 

The application was filed before the Criminal Court, presided over by Madam Justice Consuelo Scerri Herrera, who abstained.

"When the average observer has reasonable cause to think that the presiding judge might not be independent and impartial, that judge is bound to abstain or face recusal," said Judge Scerri Herrera in a decree following Fenech’s application.

The judge observed that she had already abstained in proceedings related to the Caruana Galizia's assassination and thus felt that she ought to abstain once again, in homage to the basic principle that justice must truly be seen to be done. 

The court sent the application back to the court registrar to be assigned to another judge.

Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca signed the application. 

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