Yorgen Fenech has cast doubt on the admissibility of evidence produced against him, arguing that data produced from his phone was incomplete. 

Fenech's lawyers told a court on Friday that there were serious questions to be asked about the chain of custody concerning the businessman's phone. 

And while police had seized “60 CDs of nursery rhymes” from him, former OPM chief of staff Keith Schembri’s phone was still missing.

These were among the arguments made by Fenech’s defence when the businessman, under preventive custody since his arrest in November 2019 as suspected accomplice in the 2017 murder of Daphne Caruana Galizia, was escorted back to court.

On Friday, Madam Justice Edwina Grima declared that the court is expected to deliver its judgment on pre-trial pleas in December, with the possibility of subsequently allowing fresh evidence to be compiled, particularly that linked to Daphne Caruana Galizia’s mobile phones.

The matter was thrashed out in the presence of family members of the assassinated journalist whose birthday would have been celebrated today.

But before the court heard submissions on two particular pleas concerning the chain of custody of certain exhibits and the extraction of data from certain devices, Fenech’s lawyers had other issues to flag.

Expert reports, hard drives, laptops and data from mobile phones belonging to Caruana Galizia and Keith Schembri were still missing, pointed out lawyer Charles Mercieca, adding that such evidence was essential for preparing an adequate defence.

“All I want is that before concluding my work on this case, I get access to all information.”

The defence had been chasing that information from the first day that Attorney General issued its bill of indictment against Fenech, but one year down the line they were still not in possession of a certain amount of court documents, argued the lawyer.

“Access to evidence is a fundamental right of every person criminally charged,” went on Mercieca, adding that they were reserving the right to seek “any necessary procedures” to safeguard such rights.

However, deputy AG Philip Galea Farrugia rebutted that the chain of custody was an issue that was to be decided by the jurors and besides, the court could allow for the gathering of additional evidence after delivering a decision on these pre-trial pleas.

“This issue has no value at this preliminary stage,” went on Galea Farrugia, describing the defence’s stance as “a delaying tactic.”

Fenech’s lawyers took objection to that comment, pointing out that the only reason why the “the case and the compilation of evidence was not complete was the untimely issuing of the bill of indictment by the AG.”

“Is this going to be rectified and will a fair remedy be granted?,” went on Mercieca, prompting Madam Justice Grima to assure the defence that the court would make sure that all evidence is granted before the start of the trial.

A magistrate presiding over a separate inquiry had expressed doubts about the integrity of certain data extractions and had appointed a court expert to carry out the extractions from scratch.

When analyzing hash data, the expert concluded that certain information was missing and this posed a challenge to the authenticity and raised doubts about the chain of custody of the particular device, explained Mercieca.

A missing signature was one thing, but a torn evidence bag or a person shouldering responsibility who was not summoned to testify, was another thing.

“That would make the relative evidence inadmissible,”argued the lawyer.

Focusing upon Fenech’s mobile phone, seized at the time of his arrest in 2019, Mercieca claimed that the device appeared to contain certain data which Fenech had never seen, whilst other data was missing.

“What about the leaks when that phone was meant to be at Europol?”went on the lawyer.

All those issues raised doubts as to the chain of custody.

And while investigators had seized “60 CDs of nursery rhymes,” the mobile phone of Keith Schembri was still missing and so was data from Caruana Galizia’s phones.

In light of such arguments the court said that it would give the defence “the benefit of doubt” when they claimed that they did not have access to all the data extracted by the court expert-although that expert had assured the court that he had completed the task and presented the data in a form accessible by all.

For this reason, whilst adjourning the case to December for judgment on the pre-trial pleas, Madam Justice Grima granted the defence two months within which to consult with the AG, her deputy registrar and the expert so as to get access to all data.

After that, the defence was to file further submissions which would be followed by the AG’s written reply.

Meanwhile, the defence’s request for a constitutional reference was to be left pending.

Unless they received all the required information before the case moved to judgment, Fenech’s rights would be breached.

As for additional data from the murdered journalist’s mobile phones, once the preliminary pleas are decided upon, the court would then decide whether the records are to be sent back to the Magistrates’ Court for fresh evidence to be compiled.

The case continues.

Lawyers Gianluca Caruana Curran and Marion Camilleri were also defence counsel.

Lawyers Therese Comodini Cachia and Jason Azzopardi appeared parte civile.