Yorgen Fenech compilation: a legal tussle for disclosure

Magistrate Montebello reprimands Fenech's lawyers for attempting a 'fishing expedition' and calls on journalists to report facts

Jeremy Wonnacott (DOI)

Tista' taqra bil- Malti.

The proceedings against murder suspect Yorgen Fenech continued today. Fenech stands accused with complicity in the murder of journalist Daphne Caruana Galizia.

11:38 THank you for following Newsbook.com.mt
Sylvana Debono
11:37 The next sitting is scheduled for the 2nd February 2021 at 10:00h. The sitting ends here.
Sylvana Debono
11:36 It transpires that the defence team has asked the court to forbid discussion on the accused as he is being considered as guilty of ordering the murder of Daphne Caruana Galizia.
Sylvana Debono
11:25 The Court also noted the concern of Yrgen Fenech for what he feels is unfair reporting in his regard. She said that journalists need to be careful in their reportage and base themselves on facts.
Sylvana Debono
11:20 Magistrate Montebello said that the court was not interested in raw material but in evidence and if there was any further relevant information, then this should be shared. She added that if the information had already been presented in testimony than this need not be presented again.
Sylvana Debono
11:17 The defence team refers to the testimony given by Edwin Brincat 'Il-Ġojja'. The Magistrate points out that this testimony had already been given. Zahra said that the notes the defence team is referring to are still being used in other ongoing investigations.
Sylvana Debono
11:15 Zahra explained that he had explained everything in his testimony in court, adding that the notes which had nothing to do with the arrest, such as the request by Fenech to turn State's Evidence, had not been included.
Sylvana Debono
11:14 Insp Kurt Zahra takes the stand. he is being asked to explain the initial notes he had presented, which, noted the defence team, have about 15 pages redacted.
Sylvana Debono
11:12 The deputy AG pointed out that these annotations, particularly those related to Melvin Theuma, contain information on other cases too.
Sylvana Debono
11:11 The Defence team is now gunning for the 'prime noti', the initial annotations made by the police at the very beginning of the case. It is requesting these too, be presented as evidence.
Sylvana Debono
11:07 Magistrate Montebello said that if the material is used by the police at some point, then the police have to keep a copy of that material.
Sylvana Debono
11:02 The Defence team challenges the position taken by the prosecution. It says that it is an insult to the intelligence of those in court since the prosecution had said that it was going to close its case against Fenech on the strength of the evidence produced by Melvin Theuma for which, the latter had been given state's evidence status. in 2019. The defence lawyers said that it could not understand how these phone recordings (which the prosecution has just produced evidence that they were made in 2020) are not relevant to the case.
Sylvana Debono
10:59 The prosecution maintained that the recordings had no connection to the arraignment of Yorgen Fenech
Sylvana Debono
10:55 magistrate Montebello points out that if the data was used at some point by the police then it becomes relevant material.
Sylvana Debono
10:51 The prosecution says that it has nothing further to share at this stage. Supt Arnaud remarks that this hair-splitting and that there is no further evidence other than these calls. Dr Mercieca called on the Court to give direction on 'material disclosure'. Magistrate Montebello asks if there is evidence which the Police holds. Supt Arnaud says that the Malta Security Services are not part of the Police Force adding that 'intelligence is not evidence'.
Sylvana Debono
10:49 The defence team is asking Court whether Prosecution has more evidence to share
Sylvana Debono
10:43 Dr Mercieca asks for the duration of the calls. The Answer: the first call had elicited no reply while the second call lasted 1min 5 sec. Both calls happened this year.
Sylvana Debono
10:41 Supt Arnaud asked if the location of a person can be pinpointed when abroad. Melita plc representative said that this was not possible since the number was not registered with their company.
Sylvana Debono
10:35 Melita plc representative presents CD with the calling profile of 'A number and B Number'. An explanation of the use of the different gateway follows.
Sylvana Debono
10:34 Melita plc representative takes the stand.
Sylvana Debono
10:33 The representative added that the different gateway was used since when calling overseas, the call automatically latches on to the cheaper line. GO Representative leaves the stand.
Sylvana Debono
10:28 Dr Mercieca asked for the geo-location data but the GO representative said that given that a different gateway was used, for a number outside Malta, the data is not in the possession of GO. MAgistrate Montebello said that the numbers in question should not be presented in court. The Go representative again confirmed that the calls were made and he provided backing evidence for this. He clarified that this means that Person B received a call but that does not min that Number A made the call. He added that the mobile data is kept for 6 months not for a year.
Sylvana Debono
10:25 The GO representative said that the numbers quoted were GO plc numbers. He said that last year two calls were made one in August and one in October. One lasted 3sec and the other nothing. The calls, however brief were registered through a different gateway, that of Melita plc, so the information requested by the police could not be given.
Sylvana Debono
10:23 Magistrate Montebello said that the court decree noted that the representative of the Malta Secret Services will not testify but a representative of GO plc will.
Sylvana Debono
10:21 Enter MAgistrate Montebello. The sitting is underway.
Sylvana Debono
10:11 Superintendent Keith Arnaud and Inspector Keith Zahra enter Hall 22
Sylvana Debono
10:06 While waiting for Magistrate Montebello to enter, Fenech consults with his lawyers Charles Mercieca who resigned from the AG's office to take this brief as Gianluca Caruana Curran who became entangled in allegations of attempting to bribe a journalist.
Sylvana Debono
10:02 Yorgen Fenech has just entered Hall 22 where the sitting will be held. The relatives and family of the murdered journalist are also there as well as relatives for the defendant.
Sylvana Debono
10:00 This morning, Magistrate Rachel Montebello handed down a decision on the request made by Fenech's lawyers to bring to court further evidence. The magistrate strongly chided the legal team for going on what she described as a fishing expedition intended to try and find ways of controlling the testimony and evidence produced by star witness Melvin Theuma. (see decision at the end of this article)
Sylvana Debono
09:57 Good Morning. In this cold(ish) morning, we shall soon start following the compilation of evidence in a case where Yorgen Fenech stands accused of complicity in the murder of journalist Daphne Caruana Galizia.
Sylvana Debono

Highlights from the last court sitting;

  • 3 psychiatrists presented their testimony with reference to Melvin Theuma’s mental health. Their testimony could not be published.
  • Inspector Keith Arnaud testifies that there are more recordings than originally thought. New recordings were found on Theuma’s partner’s daughter’s laptop.
  • These recordings could not be presented as authorisation has not been granted by the inquiring Magistrate.
  • Arnaud is to ask the inquiring Magistrate for authorisation to present only the relevant data from the laptop.
  • The defense asks about phone taps, but is asked to submit a written request.
  • The defense states that it considers Theuma’s partner as a person of interest in the investigations since there is a recording of her speaking to Theuma about the murder.
  • The next court sitting will involve Keith Arnaud’s counter-examination, and testimony by a representative for the secret services.