Yorgen Fenech’s murder compilation to reopen for specific witnesses to be heard

The Court of Criminal Appeal has confirmed the reopening of Yorgen Fenech’s murder compilation to hear a number of specific witnesses, including a Europol expert who had extracted data from Daphne Caruana Galizia’s cloned phone.

Lawyers for the man awaiting trial over his alleged complicity in the assassination of Daphne Caruana Galizia had pointed out that a number of prosecution witnesses, put on the list by the Attorney General when filing the bill of indictment, had never testified in the proceedings. 

The defence later limited their objection to five of those witnesses, namely two police officers, a former police inspector and two foreign experts. 

The Criminal Court, presided over by Madam Justice Edwina Grima, rejected this plea as to the inadmissibility of these witnesses when delivering judgment in respect of Fenech’s pre-trial pleas last December. 

However, she ordered that the records of the case were to be referred back to the magistrate who had presided over the murder compilation so as to hear the testimony of five specific witnesses. 

Among those was a Europol expert who was appointed by the magistrate conducting the in genere inquiry in March 2018, to examine Daphne’s cloned mobile phone and to extract any data relevant to the murder investigation. 

The clone was produced by another court expert working on the victim’s phone that was destroyed in the car bomb explosion that killed Caruana Galizia, metres away from her Bidnija home on October 16, 2017. 

Those court experts had not yet presented their findings to the inquiring magistrate when investigations were concluded in respect of Fenech.

Consequently, their evidence during the murder compilation had not been preserved.

That was why Madam Justice Grima had ordered the reopening of the murder compilation before the case progressed to the final stage of trial by jury. 

However, when listing the witnesses, one of them was erroneously left out. 

The Court of Criminal Appeal, presided over by Chief Justice Mark Chetcuti together with Justices Joseph R. Micallef and Giovanni Grixti, observed that there was “no other plausible reason” for that omission than a mere “lapsus”.

Fenech’s lawyers also argued that the compilation of evidence as well as the bill of indictment were null since the accused was “hampered” by the prosecution when trying to produce “crucial evidence”.

The Magistrates’ Court had also precluded the defence from cross-examining important witnesses such as former OPM chief of staff Keith Schembri, former OPM security official Kenneth Camilleri as well as a relative of self-confessed middleman Melvin Theuma. 

Denied access to police notes

Fenech’s lawyers had also been denied access to police notes on the murder investigation.

They had also wanted the MSS chief to testify about certain phone intercepts.

All that had a bearing on the fundamental principle of “equality of arms”, complained the defence. 

However, the first court had concluded that those claims were unfounded and the same conclusions were reached by the court on appeal. 

Fenech’s appeal was rejected save for that part concerning the Europol expert whose name was to be added to the list of witnesses to testify before the magistrate at the compilation that was to be re-opened for that purpose. 

The Attorney General also appealed last December’s judgment but only in so far as it had declared Fenech’s first statement to the police as inadmissible. 

Following his arrest in November 2019, Fenech had requested a presidential pardon in return for which he offered to supply information that could lead to criminal charges against third parties. 

For that purpose, he gave statements to the police without, however, being cautioned in terms of law and that was precisely because whatever he said was not meant to be produced in evidence against him.

Yet, the prosecution sought to use those statements and Fenech’s lawyers objected. 

Their objection was upheld by the first court which declared the statements given for the purpose of securing a presidential pardon, were inadmissible in evidence.

And no reference whatsoever was to be made to them during the upcoming trial. 

Madam Justice Grima had declared that since at the time, Fenech was already viewed as a murder suspect and since necessary legal safeguards were not observed, those first statements were legally vitiated.

The Attorney General sought to reverse that decision.

But the Court of Criminal Appeal turned down the prosecutor’s appeal observing that the first court had scrutinised the relative documents and rightly concluded that they were inadmissible because the proper legal procedure had not been followed. 

“This circumstance served as a perfect example of a statement taken without due observation of the law and consequently rendered inadmissible,” concluded the judges, throwing out the AG’s appeal. 

Deputy Attorney General Philip Galea Farrugia is prosecuting. Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri are defence counsel.