Yorgen Fenech is to get a second attempt at having Superintendent Keith Arnaud taken off the Daphne Caruana Galizia murder case, following a court of appeals decision on Wednesday.
Fenech’s initial bid to have Arnaud removed was dismissed by a court earlier this year, on the grounds that he had failed to exhaust other remedies available to him before filing the case.
Fenech appealed that decision, and on Wednesday the court partially agreed with him and ruled that the initial decision to dismiss his request was incorrectly assessed. The court ordered the case to be sent back to the first court to be reevaluated.
Fenech, a business tycoon who stands accused of complicity in Caruana Galizia’s 2017 murder, wants Arnaud taken off the case on conflict of interest grounds.
He alleges that Arnaud, the lead investigator and prosecutor in the case, was friendly with former OPM chief of staff Keith Schembri and had sought to “protect” Schembri from being implicated in the murder. Fenech had told police investigators that Schembri “wanted Daphne dead”.
In his court application to have Arnaud taken off the case, Fenech argued that the investigator could not be impartial, breaching his right to a fair trial. The first court had concluded that Fenech could have filed a legal challenge against the police commissioner to have the investigator removed from the case, but had not done so.
But on Wednesday, a second court disagreed with that reasoning. It observed that Fenech had asked the court to assess whether Arnaud was biased, not to get the police to take criminal action against Schembri. His case had nothing to do with challenging the police commissioner, it said.
“Whether Fenech was right or wrong was another matter,” added the court.
The court, presided over by Chief Justice Mark Chetcuti and Justices Giannino Caruana Demajo and Anthony Ellul, sent the case back to the first court to decide upon the other issues in the case.
Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri assisted Fenech.