The much-delayed case against Yorgen Fenech could be prolonged by several more months, with his defence team pressing for an IT expert's remit to be broadened to include Daphne Caruana Galizia's blog.
Should the court accede to the request, it will take until “at least February or March” of 2024 for the expert to complete the task, defence lawyer Charles Mercieca noted on Tuesday.
The defence lawyer emphasised that he and fellow defence lawyer Gianluca Caruana Curran wanted the expert to be summoned to the witness stand back in July 2021 and had asked for that to happen.
But that prosecutors had given the court the impression that the expert had already testified and therefore could be discounted, Mercieca said, despite the evidence being "clearly relevant".
Had the witness testified at the time, Fenech would have been out on bail because the maximum time he could have been held in custody would have elapsed, Mercieca emphasised.
The defence lawyer's request came during the testimony of IT expert Martin Bajada as the compilation of evidence against Fenech reopened on Monday, more than two years after it was initially concluded.
Bajada was summoned to testify about information extracted from a clone of Caruana Galizia’s phone, seized from the Bidnija site where she was killed in October 2017.
Defence lawyers, however, noted that Bajada was initially also assigned the task of checking comments posted to Caruana Galizia’s blog, Running Commentary, to identify any threatening posts.
Bajada confirmed that he had identified 482 such comments by people who potentially had a “motive” and eventually whittled them down to posts within “eight to 10” blog posts Caruana Galizia had written.
He testified in greater detail about those in private, after Magistrate Rachel Montebello temporarily ordered journalists and members of the public out of the courtroom.
Bajada was one of several experts to testify during Monday’s court session – the first in the reopened compilation of evidence against Fenech, who stands accused of complicity in Caruana Galizia’s murder.
Three people are serving time for having planted and detonated the bomb that killed the journalist. A self-confessed middleman, Melvin Theuma, has testified that he was given money and instructions by Fenech to commission the hit.
Fenech denies that and is pleading not guilty.
Although the compilation of evidence against him was initially concluded in August 2021, a court ordered it to be reopened earlier this year following a series of pre-trial pleas filed by his legal team, who argued that various key witnesses had not been given the opportunity to testify.
During Monday’s hearing, a court heard the testimony of various DNA, fingerprint and forensic experts who presented reports about information extracted from papers handed to Yorgen Fenech by doctor Adrian Vella.
Vella has testified that he was given those papers by Keith Schembri, the former OPM chief of staff.
Another IT expert, Keith Cutajar, told the court he extracted data from two laptops seized from Schembri’s home in late 2019. He was unable to extract data from a tablet, while Schembri’s phone was never located.
At the start of the sitting, former AFM commander and explosives expert Jeffrey Curmi testified behind closed doors.
The case resumes next week.
Deputy attorney general Philip Galea Farrugia, AG lawyers Anthony Vella and Godwin Cini, and Police Inspector Kurt Zahra prosecuted.
Lawyer Jason Azzopardi appeared on the Caruana Galizia family’s behalf.
As it happened
Live blog ends
12.35pm That's all for today, thank you for having joined us. We've got a summary of the key points from today's hearing available at the top of the article.
Thank you, and see you again next week.
Europol experts to testify next week
12.24pm That’s all for today.
Before the hearing is concluded, Police inspector Kurt Zahra indicated that Europol experts will testify when the case resumes. That is due to happen next week.
DNA lifted from papers
12.12pm The day’s final witness will be Marisa Cassar, a DNA expert.
Cassar was asked to analyse two different batches of papers. She took swabs of them and found “positive results” but with mixed profiles.
Under questioning from the defence, she confirms that these were the papers handed to Yorgen Fenech from Keith Schembri, through Adrian Vella.
Cassar confirms that the swabs were good enough to allow her to find matches. There were probably two males, she says.
She presents her report to the court. The defence says it will take a look at the report before proceeding [it may ask for the DNA to be matched].
Impressions left on papers
12.04pm Another witness – a forensic science lab expert whose surname is Pace [we missed the first name again].
Pace was appointed in 2019 and given two envelopes containing papers.
He carried out an electrostatic examination on them and found impressions left by someone writing on papers placed on top of them.
The process involves sprinkling black dust on the papers, covering them in clingfilm and then flashing electrostatic beams onto the paper.
Pace presents his report, together with images of those papers, to the court. The defence gets a physical copy, the prosecution will be sent a soft copy.
Fingerprints on papers given to Yorgen Fenech
11.54am Police Sergeant Micallef (we missed his first name) is the next witness.
Micallef was ordered by the inquiring magistrate to work on fingerprints related to the car bomb that killed Daphne Caruana Galizia.
He confirms, when questioned by the defence, that the fingerprints in question were taken from papers allegedly sent to Yorgen Fenech by Keith Schembri.
He tells the court that he passed those exhibits – two evidence bags, one featuring 70 fingerprints – to Zammit. The witness presents the evidence bags and his report about them. The defence is given a copy.
[We don't know which papers Micallef is referring to, but they could be the papers that doctor Adrian Vella was given by Schembri. Vella visited Fenech in hospital days after his arrest.]
Data from Keith Schembri's printer?
11.51am Defence lawyer Charles Mercieca says the data that Zammit is testifying about is copies of papers taken from Keith Schembri’s printer, seized by another police officer.
Zammit is asked if he has documentary evidence showing the chain of custody that the data went through. The witness says he does not, but that he had signed a form at the Forensic Science lab which shows he confirmed receipt of the data.
Former cybercrime officer testifies
11.48am The next witness is Timothy Zammit, a former inspector at the police’s Cyber Crime Unit.
Zammit was instructed to transfer data to Europol.
He tells the court that he had transferred a large encrypted file to them in 2020, and also sent Europol a secure message to inform them of the transfer. Zammit received confirmation that the data had been received on January 1, 2020.
Zammit no longer works for the police and does not have access to information about that data or the case.
Data to be presented next week
11.43am Cutajar says that he managed to extract data from the two laptops but not from the tablet, a “particular” device that lacked a charger.
The court instructs him to present two copies of the extracted data at a hearing next week.
Defence asks for copy of report
11.42am Defence lawyers say that while Cutajar presented his report and the devices to the court in February 2021, they never received a copy.
Cutajar says he can do so in four days’ time.
Court expert Keith Cutajar testifies
11.39am The next witness is another court expert, Keith Cutajar.
Cutajar worked on devices seized from Keith Schembri's home, extracting and reading data on them. They included two laptops and tablet. His phone was (infamously) not found.
Cutajar was handed his brief by inquiring magistrate (now judge) Neville Camilleri in November 2019.
Defence: prosecutors misled court
11.37am Mercieca goes for the jugular.
The court was given the impression by prosecutors that the experts had already testified and there was no need for them to be summoned as part of the compilation of evidence, he says.
Now, it emerges there is relevant information to be presented, possibly in favour of the defence. And to do that work the experts need a “substantial amount of time.
Had they testified back then, Mercieca argues, Yorgen Fenech would be out on bail because the maximum time limit an accused can be held in custody would have lapsed.
Mercieca also gives notice that the defence might be raising further pleas about this “at the opportune moment.”
Another delay on the horizon?
11.27am We’re back inside.
The court says Bajada should limit himself to presenting threats that Daphne received on her phone.
Fenech’s lawyers want Bajada’s remit to extend to her blog, Running Commentary, and ask the court to relay that request to the criminal court.
Lawyer Charles Mercieca notes this whole process is going to take months – at least until February or March of next year.
He also notes that the defence had asked for this to happen way back in July 2021. The court had then ordered the police to indicate the relevance of those witnesses.
Now, more than two years later, it's clear that the evidence is relevant and important, the lawyer says.
Testimony continues in private
11.16am Bajada is asked more questions about these people with a possible ‘motive’, but says that divulging more would force him to reveal some confidential information related to pending investigations.
Hearing that, the magistrate orders his testimony to continue behind closed doors.
So out we go once again.
Identifying blog threats
11.09am Bajada clarifies his earlier comment about 482 people – they identified 482 suspects who posted what could be construed as threats on Daphne's blog. People who possibly had a “motive”, he says.
Defence lawyer Charles Mercieca pounces on that. So these people possibly had an interest in killing Daphne Caruana Galizia, he says.
Bajada tempers that suggestion. The comments had to be taken into context, he says, and were whittled down to 8 to 10 stories which were possibly relevant to the crime.
Bajada has not seen Europol report
11.02am Bajada says he personally took the cloned phone to Europol offices in the Netherlands, where two teams of experts worked on it. The mobile was eventually sent back.
Bajada says he has not seen the Europol report.
'Let's stick to phone'
10.59am Comments posted to Daphne’s blog are also relevant, the expert says, as they could contain threats against her.
But the deputy AG notes that the judge who appointed Bajada, Edwina Grima, had instructed him to focus on the cloned phone, not the blog. “So let’s stick to that,” he tells the witness.
The defence disagrees. Lawyer Charles Mercieca says Bajada was initially given a broader remit of combing through the phone and blog, by inquiring magistrate (now Judge) Neville Camilleri.
Cross-referencing blog posts
10.56am Bajada tells the court that Caruana Galizia wrote about 482 different people on her blog, Running Commentary.
Bajada was tasked with checking data on her phone against those blog posts, after the person initially handed that responsibility, Judge Emeritus Geoffrey Valenzia, resigned. That report has not yet been presented.
Bajada tells the court that Europol was given both the cloned mobile phone as well as copies of the Running Commentary blog posts.
The challenge of protecting Daphne's sources
10.52am The court’s instruction to remove all references to sources proved problematic, Bajada tells the court.
How was he to interpret it? If a source just said “Hi Daphne”, that would be noted.
Court expert Martin Bajada testifies
10.49am Jeffrey Curmi is done testifying, and people can return to the courtroom.
Court expert Martin Bajada will testify now – and we expect him to do so in public.
Bajada cloned Daphne Caruana Galizia's phone. The court had instructed him to remove any references to her sources before presenting the data in court.
What is Curmi testifying about?
10.40am Curmi is an explosives expert who was at the crime scene in Bidnija. The inquiring magistrate also appointed him to compare the explosives used in that bomb blast to those used in five other cases.
When, earlier this month, Fenech’s lawyers presented their arguments for Curmi to be summoned as a witness, prosecutors objected, arguing that Fenech was not a suspect in any of those other cases.
But Fenech’s lawyers argued that was no grounds for discounting Curmi’s relevance as a witness, and that the court had to hear what he had to say first.
They also noted that AG lawyers were able to hear Curmi’s testimony when he testified in proceedings against Tal-Maksar brothers Robert and Adrian Agius, George Degiorgio and Jamie Vella, who are accused of supplying the bomb that killed Caruana Galizia.
Fenech, on the other hand, could not hear what Curmi had to say as he was not a party to those proceedings.
The court then accepted the request for Curmi to be summoned, provided he only be asked about the bomb that killed Caruana Galizia, and that he answer questions behind closed doors.
Curmi to testify in private
10.15am It all looked poised to begin, with Jeffrey Curmi - the former AFM commander and Malta's future ambassador to the Netherlands - summoned to the witness stand.
But under order of the Criminal Court, Curmi is to testify behind closed doors. Journalists and others are asked to exit the courtroom. We'll have to wait until his testimony is concluded before being allowed back in.
Magistrate in court
10.12am The various lawyers are filtering into the courtroom.
There’s Gianluca Caruana Curran and Charles Mercieca appearing for Fenech, with Deputy Attorney General Philip Galea Farrugia, AG lawyers Anthony Vella and Godwin Cini, and Police Inspector Kurt Zahra appearing as prosecutors.
Lawyer Jason Azzopardi is in court on the Caruana Galizia family’s behalf.
Fenech has just been brought into the courtroom.
The magistrate is out. The hearing can begin.
Who are the witnesses?
10.08am Fenech’s lawyers have presented the court with a list of various witnesses that they want to summon in the case. Some of those names can be made public, others cannot.
Key witnesses they have requested include a Europol forensics expert who was tasked with examining and extracting data from a clone of Daphne Caruana Galizia’s mobile phone.
The original phone was severely damaged in the bomb blast that killed her, but a separate Europol expert had managed to clone it and its contents.
Those experts had not presented their findings to the inquiring magistrate by the time the compilation of evidence had initially been concluded in August 2021.
Fenech’s lawyers have also asked Brigadier Jeffrey Curmi, the former commander of the Armed Forces, to testify. Curmi is an explosives expert and was appointed by the court to carry out a comparative study between the Caruana Galizia case and five other bomb cases.
We also know that Fenech's legal team want to question local electronics court expert Martin Bajada, who worked on extracting data from Caruana Galizia's phone, as well as a number of police officers.
And then there are some other, mystery witnesses who may be summoned.
How did we get here?
9.51am Yorgen Fenech was arrested in November 2019 and charged in early December.
Prosecutors then started presenting their evidence against him. That process, known as the compilation of evidence, ended on August 18, 2021. Or so we thought.
Fenech’s lawyers then filed a list of preliminary pleas against the bill of indictment issued against him.
Judge Edwina Grima heard submissions about those pleas in several court sittings, and handed down judgement on preliminary pleas on December 9, 2022.
The judge ruled that Fenech’s first statement to the police, which he provided in the hope of obtaining a presidential pardon, was to be struck from the record as evidence. She also accepted his request to reopen the compilation of evidence, but rejected all his other pleas.
Both the Attorney General and Fenech’s defence team filed appeals against the judge’s decisions, and a court of appeal ruled on their preliminary plea appeals on October 6, 2023.
As a result, the case was sent back to Judge Edwina Grima, who heard further pre-trial submissions by the defence. Perhaps the most eye-catching was an argument made by Fenech’s lawyers that “the true [murder] mastermind is a third party”.
Finally, on November 4, 2023 the judge sent the case back to Magistrate Rachel Montebello, which brings us to today.
9.45am Good morning and welcome to this live blog.
Yorgen Fenech’s lawyers have filed a flurry of court cases over the past years, but they all centre around this one: the charges he faces concerning the murder of Daphne Caruana Galizia.
The case is due to begin at 10am.
It’s been six years since Caruana Galizia was murdered and four since Fenech was arrested and charged, but the case has yet to go to trial. That’s because of a long and winding series of legal developments which we’ll be summarising for you shortly.