Court appoints team after medical experts refuse to assess Theuma

Monique Agius

Tista' taqra bil- Malti.

A team of three medical experts has been appointed by the court to assess whether state witness Melvin Theuma is fit to continue testifying before the court.

This detail emerged on Wednesday when the gathering of evidence against murder suspect Yorgen Fenech continued in court.

The former Electrogas director stands accused of complicity in the murder of investigative journalist Daphne Caruana Galizia.

At the end of the sitting, Dr Mercieca who is appearing for Fenech asked about Theuma’s health to which Magistrate Rachel Montebello replied that medical experts who have been asked to assess his health turned down the brief leading to the appointment of a team of three by the court.

In brief:

  • Fenech’s legal team claimed that Theuma negotiated and bought his presidential pardon for €17,000. The defence had made similar claims before, however they said that Edwin Brincat (il-Ġojja) had bribed former Police Commissioner Lawrence Cutajar for €30,000.
  • The inquiry report drawn up by Magistrate Neville Camilleri, who had taken up the Caruana Galizia murder inquiry after the previous magistrate was made a judge, was exhibited.

Theuma who acted as go between Fenech and the three suspected hitmen was granted presidential pardon in exchange of evidence in court. In July, the state witness was hospitalised after sustaining stab wounds which appear to have been self-inflicted.

11:32 Thank you for following this live blog.
Monique Agius
11:29 The next sitting is on the 2 December at 10am .

Dr Azzopardi notes that the coronavirus situation is getting worse and Europol officials should testify before it gets worse.
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11:27 The court says that no medical expert accepted the brief, leading the court to appoint three medical experts.
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11:27 Dr Mercieca asks about Theuma's health.
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11:26 Fenech chats to Dr Caruana Curran. Fenech has a faint smile on his face. The lawyer has been sitting down next to the accused for some time now.
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11:26 The court says that a request had to be made.
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11:25 Dr Mercieca asks about the request regarding the data room.
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11:25 The court asks whether a transcript is needed for the statements.
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11:24 The defence says it is not in a position to limit its request for the retention of call profile data to certain individuals due to the fact that it has not been given the necessary information about these individuals which could only be given by the police investigating the crime. It repeats its request for disclosure of the evidence against Fenech.
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11:24 Arnaud asks that the defence be made to justify every individual they need the phone data for.
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11:22 The defence replies that it had made the request with the little information it had at hand.

The court says:
With reference to the court ruling given by this court on a court application filed on 18 September, the defence said that to date it is not in a position to limit its request regarding the call profile or other data concerning individuals mentioned in the court application. This is because it does not have the necessary information on the mentioned individuals which information can only be given by the police investigating the case.
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11:22 The magistrate says it would be more practical and favourable to the defence to make a more specific request.
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11:21 The court says that the request for the call profiles was still too vast in scope. “The request as formulated, is already denied,” the magistrate says.
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11:17 Arnaud says that he will not an accomplice in revealing certain information which the defence is after, adding that the defence should clarify what it is after.
Monique Agius
11:17 Arnaud says that he will not an accomplice in revealing certain information which the defence is after, adding that the defence should clarify what it is after.
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11:15 Dr Attard's turn to speak now. She suggests that the defence could file an application and explain their request, to which they could reply. "That's how things are done," the lawyer from the AG's office explains, adding that a similar request had already been turned down.

"These are the basics you should have learnt during your time at the Office of the Attorney General, kollega," Dr Attard tells Dr Mercieca.
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11:14 Arnaud explains the procedure on requesting data retention.
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11:13 Dr Mercieca rebuts that it is not a fishing expedition, but that every person is important in this web.

“Let Jason Azzopardi formally inform the court that he is protecting these third parties… but what is good for the goose is good for the gander,” the defence lawyer argues.
Monique Agius
11:10 He continues that the defence team was not given full disclosure and it could be that Theuma could have had more than one phone and the defence does not know about them. This would lead to a situation where the defence did not request the data retention on the other phone numbers owned by Melvin Theuma and which would be needed during the jury.
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11:07 Dr Mercieca says that Cutajar was too close to the interrogations, saying that video shows him entering and exiting the room constantly on his phone.
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11:04 Dr Azzopardi warns that this is a fishing expedition and that we are treading on dangerous ground. He says that this includes the name of a lawyer. He continues citing case law. He mentions a case in specific – the arson on Saviour Balzan and Daphne Caruana Galizia's properties in which a request to retain data was refused by the court.

"The defence wants an open fishing expedition which is completely legally," Dr Azzopardi says.

"Sempliciment żbalordit b'din it-talba," he concludes.
Monique Agius
11:02 Dr Mercieca proposes that all data is retained however it would not be disclosed in public to protect third parties.
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11:00 Dr Mercieca says due to data retention prescription, the data is preserved and the defence is given access to the data relevant to the case, while at the same protecting third parties.

The data will be kept and not exhibited at this stage.
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10:58 Magistrate Montebello adds that an expert would edit and make a copy.
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10:57 The court will verify which part of the recordings need to be muted.
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10:55 The court orders the prosecution to present a note on the DVDs where the prosecution indicates that time codes in the statements which are referring to offences are not related to the case or the accused or these proceedings.
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10:55 Dr Mercieca asks whether he confirms that the investigation into Fenech has been concluded.

"No, no it has not been concluded," Arnaud replies.
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10:54 "I believe yes," he says.

Dr Mercieca asks whether Cremona confirmed Theuma's voice.

Arnaud says, I believe yes.
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10:52 Arnaud is asked whether he and Zahra interrogated Johann Cremona and whether the tapes were played to Cremona.
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10:51 Arnaud takes the witness stand. He exhibits the DVDs of the statements given by Melvin Theuma to the police.

Dr Kathleen Grima, Theuma's lawyer, is also present in the courtroom.
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10:50 Arnaud says that Dr Mercieca is mistaken when saying that the prosecution is objecting to bail because the investigation is still underway. He adds that the AG made it clear on which grounds they are objecting.
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10:49 Arnaud says that even after hearing the recordings of the phone taps which were made available for the prosecution to use in the interrogation, il-Ġojja refused to speak.
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10:48 Arnaud says that it is good that Dr Mercieca clarified. He explains that the recordings of phone taps were used as a technique in the interrogation. They form part of the intelligence after il-Ġojja had insisted on his right to remain silent.
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10:46 Dr Mercieca says that the prosecution keeps saying that the investigations are still underway but at the same time Fenech is kept in preventive arrest without any end in sight.
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10:43 Dr Mercieca claims that il-Ġojja heard the recordings of the phone taps between il-Ġojja and Theuma in which il-Ġojja was heard telling Theuma to refer to Fenech as the "mastermind" and to place words in Theuma's mouth.

Dr Mercieca says that the defence will request a copy of these recordings and warns the prosecution that if they go missing they would have to deal with it.
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10:42 Magistrate Montebello agrees with Dr Azzopardi saying that it will not decide on notes.

The magistrate says she will not be making decisions on anything submitted by means of a note, slamming her hands on the table in front of her. “The gathering of evidence is underway and the defence has the legal avenues to challenge it,” she says.
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10:39 Dr Azzopardi says that the note which was presented by the defence team could be considered as taħmil id-dras or a media stunt.

Dr Azzopardi says that the court is not a skip and that the court does not take decisions on a note but if there are such requests then a request should have been filed through normal court procedure.
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10:39 Arnaud adds that they chose to go audiovisual to avoid future problems.
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10:38 Arnaud: “I know nothing about any tapes with Mario Tonna… if he has some he should share it with the prosecution.”
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10:38 On the investigation is ongoing, Arnaud asks rhetorically "what should I say that we finished?"
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10:37 Arnaud says that he does not know about the existence of recordings of Mario Tonna. He adds that if the defence has them, then they should bring them forward.
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10:36 On the point of coaching, Arnaud says now that they have the DVDs and they can interpret it as they wish. "They can see for themselves," Arnaud adds.
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10:34 Arnaud replies that there are no tapes which have been hidden. He calls the claims by Dr Mercieca as making a scene before the media.

Arnaud remarks that the hidden tapes' narrative had been disproven. Had they been hidden they wouldn't have ended up in the defence's hands, he adds.

It was Europol who extracted the device data, he said
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10:31 "This is an orchestrated case by a liar to place Fenech in prison," Dr Mercieca claims.

He refers to the criminal code and says that the prosecution has to provide both evidence for and against the accused. He underlines that it goes against the principal of the presumption of innocence.
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10:31 "I'd like to know what you are exacting referring to," Arnaud says.
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10:29 He adds what will happen when the case arrives at jury stage and questioning starts. He questions why the AG is objecting against having some evidence being part of the acts of the case.

"There are conversations indicating that Fenech is being framed up," Dr Mercieca exclaims.
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10:27 Dr Mercieca says that the inquiry was taken away from the inquiring magistrate on 2 February. He adds that the inquiry was shelved at the AG for 8 months and was not presented in court then.
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10:27 He says that some tapes remained "suppressed" and had it not been for the defence's request.
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10:26 Dr Mercieca is questioning the veracity of the witness.
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10:25 With the help of Lawrence Cutajar and il-Ġojja, Theuma bought his pardon, Dr Mercieca says. He refers to a statement by Theuma. He maintains that Theuma was coached by Cutajar and il-Ġojja.
Monique Agius
10:23 Dr Mercieca claims that the prosecution has information that Melvin Theuma has bought and negotiated his pardon for €17,000. He adds that Theuma did this through il-Ġojja. Dr Mercieca remarks that this is verging through Ġojja.
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10:22 Magistrate Montebello says that the DVDs as a whole will be kept as evidence.
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10:21 Dr Mercieca warns on the editing that it needs to be carefully done. He adds that due to a series of issues, the defence does not have trust in the prosecution. Dr Azzopardi remarks that it works both ways.
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10:20 Dr Mercieca suggests muting the audio.
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10:20 The statement are as a whole.
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10:19 Arnaud proposes that in the next sitting they would give the time code of the relevant information. The magistrate says that in that case it would be the court which would be deciding on what is admissible and relevant.
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10:18 Dr Mercieca says that the defence is not interested in what state witness Melvin Theuma told the police which is not related to the accused.
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10:17 Magistrate Montebello said that these have to be all exhibited with the court providing the copies to the parties.
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10:17 There are six statements taken on different days – some were taken on the same day.
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10:16 Dr Mercieca says that it would like to see how the sittings will proceed adding that the defence believes that the police statements should be exhibited first.
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10:14 A court official takes the witness stand. She exhibits the report by inquiring Magistrate Neville Camilleri who has concluded the inquiry into the murder.
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10:13 A court application by the parte civile.
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10:12 Magistrate Montebello says that the court ruled on Tuesday and that it was denied.

The application was filed by the accused asking for an expert to examine data extracted from his devices. The court denies this request.
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10:11 The magistrate says that there were two court applications – one filed by the accused requesting the sifting of the electronic data from the equipment seized.
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10:11 We're in session.
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10:05 Fenech's wife walk in. Seated on the front bench, Fenech greets his wife with "bonġu babe".
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10:04 Lead investigator Keith Arnaud walks into the courtroom.
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10:03 Dr Comodini Cachia walks in.
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09:59 Fenech is being shown a document which he is currently discussing with Dr Caruana Curran.
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09:56 Fenech is having a word with his lawyers.
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09:56 Already in the courtroom are Dr Azzopardi (parte civile), and Fenech's legal team – Dr Mercieca and Dr Caruana Curran.
Monique Agius
09:55 Murder suspect Yorgen Fenech just walked into the courtroom escorted by CCF officers and the prison director.
Monique Agius
09:54 Good morning and welcome to Newsbook.com.mt live blog. We're live from Hall 9.
Monique Agius

Defence files note; Alleges Theuma bought and negotiated pardon

On Tuesday, the legal team appearing for Yorgen Fenech filed a note in the criminal proceedings claiming that state witness Melvin Theuma had negotiated and bought his presidential pardon. In the note, the lawyers said that this emerged “crystal clear” from the police interrogation of Melvin Theuma. The defence said that Edwin Brincat known as il-Ġojja, had paid the disgraced Police Commissioner €15,000 for Theuma’s pardon.

During the last sitting Police Inspector and lead investigator Keith Arnaud exhibited the statements given to the police under interrogation by disgraced former OPM Chief of Staff Keith Schembri, Dr Adrian Vella and Johann Cremona. The court also heard that the police are still investigating items which were seized from Keith Schembri, Logan Wood and Edwin Brincat known as il-Ġojja.

Magistrate Rachel Montebello is presiding over court.

Police Inspectors Kurt Zahra and Keith Arnaud are prosecuting.

Lawyers Marion Camilleri, Gianluca Caruana Curran and Charles Mercieca are appearing for the accused.

Lawyers Jason Azzopardi and Therese Comodini Cachia are parte civile while Dr Philip Galea Farrugia and Dr Nadia Attard are appearing on behalf of the Office of the Attorney General.