Tista' taqra bil- Malti.
Police Inspector Keith Arnaud was cross-examined on Thursday morning during the compilation of evidence against murder suspect Yorgen Fenech. During the same session, the cross-examination of Melvin Theuma, the go between Fenech and the three suspected hitmen, also began by Fenech’s legal team.
Fenech stands accused of complicity in the murder of investigative journalist Daphne Caruana Galizia.
- Police Inspector Keith Arnaud testifies on Theuma’s pardon behind closed doors. Theuma gave the police information about two other unrelated offences;
- Arnaud tells the court that as far as he was informed, the police seized around €600,000 in cash from Theuma;
- The lead investigator also told the court that it was the first time that OPM briefings in relation to a case ever happened;
- Theuma denies he was aware of the presidential pardon;
- Fenech’s defence team say there is another recording which Theuma has not confessed to;
- Lawyers ask Theuma to confirm that il-Gojja (Edwin/Edgar Brincat) paid €30,000 to the police commissioner to help get a pardon for the middleman. Theuma denies it;
- There are discrepancies in the recordings which were given to the defence team, the prosecution and the court.
During Thursday’s sitting former Police Commissioner Lawrence Cutajar was due to testify but due to technical difficulties the cross-examination was postponed.
Police Inspectors Keith Arnaud and Kurt Zahra are leading the prosecution.
Lawyers Philip Galea Farrugia and Nadia Attard appeared on behalf of the Office of the Attorney General.
Lawyers Jason Azzopardi, Therese Comodini Cachia, and Peter Caruana Galizia are appearing for the family.
Lawyers Marion Camilleri, Gianluca Caruana Curran and Charles Mercieca are appearing for Fenech.
Magistrate Rachel Montebello is presiding over the court.
However since the session will be a long one, the next sitting will be on Wednesday 22 July at 9.30am.
Dr Mercieca requests the court to give the closest possible date in the interests of justice and bearing in mind that his client is still under preventive arrest and presumed innocent.
"We don't know where they came from, we were given the same copies the court," Caruana Curran continues.
Arnaud interjects and says 'if anything we get Europol to exhibit the recordings in court.
Both prosecution and parte civile object to the request.
The court rejects this request saying that the best evidence has to be submitted. Before anything else it is to hear the technical expert to testify how he carried out his duties, Magistrate Montebello says. The court is suspending the appointment of Alvin Cardona who was tasked to optimize the recordings.
The court orders that the parties are given a true and original equal copy.
Arnaud says that the recordings which were in the ice-cream box and were exhibited by the court expert.
An investigation was triggered once the new recordings were discovered, Arnaud says.
The defence were only given the court's copy, Mercieca says.
Arnaud explains that recording '91' is not opening for his colleagues. Arnaud adds that the police did not have the folder in the copy they received earlier after the devices were seized.
Dr Mercieca says that the recording is "groundbreaking".
Dr Mercieca points out that there are discrepancies in the court recording.
Dr Galea Farrugia is arguing that this not acceptable.
The defence is also angry about it. There are files on the court expert's copy which the defence do not have, Mercieca says.
Arnaud says that Europol could re-extract the data.
"I don't want to overstep but I'm being very cautious about what is happening. Europol has the interests of the police at heart," Mercieca says.
The court orders him not to communicate with the parties.
"So that you are not kept here until 8pm, we're sending you away," the Magistrate says.
Cutajar will be notified accordingly.
Caruana Curran and Mercieca offer also to give it the defence's copy of the hard drive. But it is turned down.
Mercieca points out that the file in question cannot be found on the court's laptop.
The court says that if there are no objections, the recordings found on the hard drive given to the transcriber.
The court orders that the expert makes another data extraction of the recordings found on the original hard drive.
Mercieca and Arnaud approach the computer.
Dr Grima intervenes, and Dr Caruana Curran reminds her that she has no locus standi.
Dr Caruana Curran notes that it was not normal for witness to have a lawyer assisting them.
"It is physically impossible to listen to all the recordings today," Magistrate Montebello says.
Caruana Curran and Mercieca ask to approach the bench. The tape deals with a particular person and discussions with him. They suggest that the witness be held until the next sitting.
The court is not happy with this. She rebukes them for springing them on her.
They want to confront him about the money to the Commissioner.
Mercieca says that Theuma was asked who had he recorded, and the witness had said that he had recorded Johann Cremona, however, he did not know where these are. 'These are the recordings,' Mercieca exclaims.
Mercieca appealed to the court to seek the truth. The tapes are about the money allegedly paid for the pardon and give the lie to his statement that he had only recorded conversations between Fenech and himself.
The recordings also concern information about the raid locations, which Theuma earlier on said that he did not about them.
The discussion now shifted whether we should listen to the extract or to the whole tape.
Galea Farrugia says that the this a compilation of evidence, and the evidence has been gathered.
The defence is adamant that they want these recordings to be heard today.
Magistrate Montebello asks if there are any objections by the prosecution for the recordings to be played out in court.
The prosecution does not object to the hearing of these recordings as it was part of evidence it had exhibited. It wants it to be exhibited in a regular procedural manner, Galea Farrugia says.
Police Inspector Zahra says that he did not say 'fraud'. Zahra had been commenting to Arnaud that it is a mise en scene.
"They are accusing of a mise en scene, a crime," Caruana Curran.
The court finds Caruana Curran and Mercieca in contempt of court and fines them €50 each.
They apologize to the court.
However Theuma has already testified on the content of these recordings, according to the defence counsel.
Theuma is escorted out of the courtroom.
Theuma laughs, and is subsequently reprimanded by the court.
The implication is that he bought his pardon.
Caruana Curran: Did someone mention a pardon in connection with the date of your arrest?
Theuma: Of course not.
'On Monday I had a meeting with Yorgen Feeling and he said that the Commissioner had to guide him. I suggested that Cutajar speaks to Schembri. He had given me the date of my arrest but I didn't take note,' Theuma says.
Caruana Curran: Had you ever spoken to her about Keith Schembri? It was all lie after all.
Theuma: I don't remember. I might have mentioned him in connection with the case.
Caruana Curran: Did you enter through the main door? The one used by the prime ministers?
Theuma: Yes. Fenech told me to use the main entrance.
Caruana Curran: You didn't ask them about the pardon then?
Theuma: This was before the murder. I wasn't suicidal then.
Caruana Curran: Did you speak to Cutajar?
Theuma: I only spoke to him when I signed the pardon.
Theuma: I met him twice and he called once.
Caruana Curran: You've mentioned WhatsApp and Signal. Do you know how to delete the messages.
Fenech is laughing.
Theuma: I don't know. The chat with Johann Cremona disappears after some time on Signal. Those with Fenech, no.
"Zeffintu fin-nofs. Bhalma skuzajt ruhi fuq tal-Imhallef Mizzi," Theuma says.
Theuma: He was annoyed for having gotten involved in the case.
Caruana Curran: Did you know that Edwin or Edgar Brincat il-Gojja was friends with Cutajar?
Theuma: What do you mean? Let me tell you what I know. Brincat went to see Cutajar over a parking ticket. Brincat knew about the recordings and told me that Cutajar knew about the recordings.
Theuma: Yes. The inquiring magistrate, the lawyers, etc.
Caruana Curran: Were you told to reveal everything about everyone?
Caruana Curran: When did you start recording Fenech?
Theuma: The first time I did, I tried calling Dr Jason Azzopardi.
Caruana Curran: when?
Caruana Curran: Which was the most important for you?
Theuma: Murder, nobody can ever take it off your conscience. You can live a hundred years, have holy communion and confess, but it will still be there.
Caruana Curran: Were you a usurer?
Theuma: That was when I was very young…
Theuma: I was so confused, so depressed that a pardon. I don't know what it is or how it works.
"I will tell you something, during my arrest there was no agreement between my lawyers and Arnaud and Arnaud had already today that he was going to arraign me. Then the government issued a statement. I was given a paper and I was asked whether I wanted to sign it and I signed it," Theuma says.
Theuma: It could have been mine or the lawyer's.
Caruana Curran: But before your arrest…
Theuma: Edwin Brincat used to tell me I would go to prison and would never get out.
Caruana Curran: Who mentioned then? The police commissioner?
Theuma: No. After I got to know that Vince Muscat il-Kohhu was speaking with the police. I thought I should request it.
Theuma: Because he is involved in the investigation. I always told Fenech and Cremona that once a police officer knocked on my door, I would reveal everything immediately.
Caruana Curran: When did you think about requesting pardon?
Theuma: The pardon I mentioned several times as well as 20-30 years prison with Johann Cremona and Yorgen Fenech. I still have the remorse that I became embroiled in this murder and nobody can take it away. I had also told Edwin Brincat. He told me that I would go to prison and never get out.
Theuma: I request the presence of the magistrate too, possibly also the commissioner of the police. But he wasn't there. I wasn't trusting anybody.
Theuma: I was arrested by Police Inspector Nicholas Vella. During the search, I told him please call Arnaud because tonight I would like to speak to him. After the search, I was taken to the headquarters. I told him that I want to speak about the murder investigation of Daphne Caruana Galizia. I was told I don't have a lawyer yet. We started calling lawyers, we called your mother, Gianella de Marco but she was away, we called Karol Aquilina, Jason Azzopardi, Beppe Fenech Adami, and Simon Busuttil. Then we called Matthew Brincat because I knew him from Marsa and De Marco's office.
Arnaud: Zahra and I prepared a report together. There is a report by the AG. I don't know about any other reports. We have given our report.
Court: Are you aware of other people advising?
Arnaud: As far as I know these two reports were filed.
Mercieca: Did you inform about others about the new tapes which were found in February 2020?
Arnaud: Whoever is part of the team knew about them.
Mercieca: Did you inform the Commissioner about them?
Arnaud: uhm… Not sure. Not sure if he had already left the police force. We found them between January – February.
Mercieca: the prime minister?
Mercieca: the AG?
Arnaud: I think so.
Arnaud. No, no. There were other documents – screenshots, and other documents.
Fenech is holding his head laughing.
Arnaud says that the pardon was given after Fenech's arrest. The defence had already listened to some of the recordings.
Arnaud says he recalls the pardon mentioning "di scienza propria" meaning what he himself had seen or heard.
Court: it's a hypothetical question
Mercieca: Do you know if any money changed hands for this pardon?
Arnaud: We had asked Theuma and he said no.
Arnaud: Uhm… no. I was not present for any meeting on Theuma's pardon request.
Mercieca: Are you informed if it was discussed?
Arnaud: Not informed.
Mercieca: Am I correct to say that one of the conditions is for him to say the truth and all that he knows regarding the offences and the people involved?
Mercieca: If he is caught lying, it would be revoked, right?
Arnaud: It won't be who revokes it.
Galea Farrugia: The President.
"It was my first experience. I did not know what the procedure was. I never had similar request," Arnaud says.
On the pardon, Arnaud maintains if you have a suspect willing to talk, what are we supposed to do? Not talk to him?
The court is getting annoyed.
Arnaud: With the prime minister. Schembri was present.
Arnaud: He was not mentioned initially, but then he was. Kohhu was mentioned for sure.
Mercieca: Schembri never told you about his fraternal friendship with Fenech.
Arnaud: Schembri would be present for the PM's briefing. We never felt the need to hide anything from him. The developments were about Theuma's recording. With time we noted that the recordings were tied to Yorgen Fenech. We took into consideration what would happen if the recordings turned out to be useless or unrelated.
Mercieca: Were you concerned that the recordings could go missing?
Arnaud: In my opinion, no.
Arnaud: November once. Once a week before the arrests, then April and May 2018… I will get the dates. The meetings would be with the Prime Minister not Schembri, he would only be present.
Mercieca: You've just said that you didn't request the meeting.
Arnaud: Before it was Valletta taking care of it.
Mercieca: Is it normal to request meetings with the Prime Minister over police investigation?
Arnaud: I don't know who requested the first meeting. Valletta had told me 'Imxi mieghi'.
Mercieca: How many meetings did you have with the Prime Minister on other murder cases?
"A chief investigator should be certain of his information. We want to know whether he was spoken to before his deposition to the court," Mercieca remarks.
Arnaud will have to check the dates with his notes. He would always make arrangements with Theuma's lawyers.
Arnaud: Because we had wanted to find these recordings, the plan was to gather all his electronic devices. We seized one laptop for sure, there are also four mobiles for sure and other devices but I don't know exactly.
Mercieca: How much money did you seize from Theuma?
Arnaud: I was informed that around €600,000 in cash were seized.
Fenech shares a joke with Dr Caruana Curran, and laughs silently.
Arnaud explains that since then there were more police officers involved in the investigation since 2018 as some had retired.
Arnaud: For statements, me and Zahra. The last statement I'm not sure, depending on who is in the office at the time.
Mercieca: Are they these the three officers mentioned before?
Arnaud: Some of them are not there anymore.
Mercieca: I've asked you in the beginning who are the officers, and now we discover that there are more.
Arnaud says that he spoke to Theuma several times, however, he does not hold a record. Mercieca asks if there were instances of off-record situations. Arnaud clarifies that there were times when an audio-visual statement was not required.
There are at least six statements taken from Melvin Theuma during a three-week span in November. Arnaud will bring the dates.
From November to date, Arnaud tells the court that he spoke to Theuma but no audio-visual statements were taken. There is one more on tape since then.
Less than ten statements were made.
Arnaud: Perhaps 30 minutes.
Mercieca: Could it be more or less?
Arnaud: More though not much more of that.
Mercieca: Alone or with his lawyers?
Arnaud: I've always spoken to him in the presence of his lawyers.
Arnaud: The last time was this week. Can't recall exactly.
Arnaud fishes out his phone and replies "99.9% it was on Tuesday because on Monday I was not working".
The court suspends the testimony for the time being.
"We stopped there for the statement. He was refusing to reply," Arnaud replies.
Arnaud: We did ask him, if I recall correctly. I was not aware of it at the time. I knew they were friends but not that they went back so far.
Mercieca: Did you ask him about his friendship with Mario Tonna?
Court: Has the investigation been closed?
Arnaud: Can't say it is. He was warned before testifying.
Mercieca: Did you ask him about his friendship with Theuma?
Arnaud: No. The interrogation was us making questions and we received no replies.
Mercieca: Have you asked him how many mobiles he has?
Arnaud: I don't recall exactly. I think he has two.
Electronic devices were seized from il-Gojja.
Arnaud: I think it was January – February 2020. Theuma had prompted us to investigate further.
Arnaud recalls that Theuma after a sitting, when Theuma had told him whether there were more recordings in December 2019. Arnaud told him that these were the recordings from the box. Theuma had told him that to check further. Arnaud went back to his team and they investigated further.
"He had told me 'M'hemmx iktar? Minghalija kien hemm iktar.' and I understood that there could be more," Arnaud tells the court.
Arnaud: November. Around five days before he testified. Il-Gojja was brought in days before he was summoned to testify. The reason was because he initially did not want to talk. I wanted to see if he was going to talk and prepare the questions accordingly.
Arnaud: No. I didn't see any reason for this.
Mercieca: And he is still being investigated?
Mercieca: When are you planning to finish your investigation?
The court overrules for the question.
The last time he brought Vella in was in December 2019.
Mercieca turns to Caruana Curran and says 'his investigation and he knows nothing'. [ma jaf xejn u l-investigazzjoni tieghu.]
Zahra intervenes and tells them to avoid such comments.
Magistrate Montebello says the court did not hear any comments.
Arnaud notes down that he needs to check how long was Dr Adrian Vella was arrested for, how many statements did he give, among other details.
Arnaud: No. He was mentioned but his voice is not on the tapes.
Mercieca. And Dr Adrian Vella. How many times have you brought him in?
Arnaud: If am not mistaken, we have brought him in three times: twice in November and once in December.
Mercieca: You are the lead investigator…
Arnaud: Both Zahra and myself are the lead investigators.
Mercieca: Is Zahra in a better position to reply?
Arnaud: I wasn't prepared to delve into such details.
Mercieca: How many statements did Vella give?
Arnaud: I think three.
Galea Farrugia clarifies that questions like "did you believe him?" are to be avoided since Arnaud will not be able to testify this in an open court.
There is no active investigation into Cremona.
Arnaud: He was spoken to twice in November i nthe sapace of 2-3 weeks and once recently.
Mercieca: How many statements did he release?
Arnaud: I think two or three.
Mercieca: How wide was the investigation?
Arnaud: If we knew a person had pertinent information we would have done so.
Cremona: Did he lose it too?
Arnaud says that the parte civile does not have a copy and not even the AG if he recalls correctly. The defence team does not have a copy.
The task force is analysing the tapes. The task force which is composed of some 12 individuals including officials from the ECU.
The recordings which were in Theuma's box were exhibited in court.
Mercieca: Did he explain the tapes?
Arnaud: We would stop and he explained and we collected them as a statement.
Cremona listened to some nine to ten recordings.
The court has only listened to one of these tapes.
Cremona was never under arrest.
Arnaud: Cremona was brought in four to five times.
Arnaud: We brought him in, in November 2019, before he testified.
Arnaud: No. no.
Mercieca: The investigations into Schembri have been concluded, right?
Arnaud: We've spoken to Vodafone, The engineer gave us a report.
Mercieca: When did you speak to the engineer?
Arnaud: Within days.
Arnaud: His home.
Mercieca: What did you seize from Schembri?
Arnaud: A laptop.
Mercieca: When did you get to know that his phone went missing? Before or after the statement?
Arnaud: During the search. Before the statement.
Arnaud: One for sure. I do not have these documents with me. I didn't know we were going into this much detail.
Mercieca: You took his mobile away, right?
Arnaud: I already testif… no.
Mercieca: Did you ask how many mobiles he has?
Arnaud: I don't recall exactly.
Arnaud: Kurt Zahra and I.
Mercieca: Would I be wrong to say that Europol were also present?
Arnaud: No, Europol were not present during the questioning.
Arnaud: I don't know if it was three or four.
Mercieca: On the same day?
Arnaud: He was at the Police Headquarters on 26 and 27th November. The first time he was there for almost 48 hours.
Arnaud: No, no. He was arrested on 26 November and then released on police bail. He was arrested twice.
Magistrate Montebello intervenes as Arnaud and Mercieca bicker. She reminds Mercieca to keep his comments to himself.
Arnaud says that he was following after Theuma was arrested. He says that he saw the witness holding the box. He called Vella who explained that Theuma insisted to open the box in front of Police Chief and me or Police Chief alone.
'We all assumed or wished to find the recordings there.'
Police Inspector Vella informed Arnaud about Theuma's box.
Mercieca asks if he knew what was in the box.
Arnaud: I assumed. Our case hinged on these recordings. Of course I assumed.
Arnaud: He was not at home. Not sure if it was Hal Qormi. But I was not the one to arrest him. Police Inspector Nicholas Vella had arrested him.
Mercieca: If I had to tell you that Cutajar had informed you about the existence of the recordings?
Arnaud: No, of course not. Am 200% sure.
Arnaud says that he had told them about that particular meeting.
Dr Mercieca asks Arnaud if he had sent for Cutajar after the court order for the police commissioner to be investigated.
Arnaud says that this was given in open court and that he was not assigned with the investigation.
Arnaud says that he was not sure if it was recorded, but Cutajar gave a statement to the inquiring magistrate.
Arnaud is asked when he informed the inquiring magistrate about the meeting between Cutajar and Brincat.
He says that there were meetings intended for a particular reason. There were around eight to nine meetings.
Dr Mercieca is pressing for a date.
Arnaud leafs through his notes to check for a date.
He tells the court there were a number of meetings with the inquiring magistrate which he did not attend or for which he arrived late. But he was present for when the inquiring magistrate was informed about the meeting between Cutajar and Brincat.
Arnaud says there was nothing much to do.
["Ma kienx hemm x'taghmel iktar."]
During that meeting, Cutajar had to be present and we asked him directly. He confirmed immediately.
Arnaud says that there is an investigation. When he got to know that the meeting might have happened he informed the whole team.
Dr Mercieca asks about the team.
The team from the homicide squad consisted of Police Inspector Kurt Zahra, and two other police constables; and there were seven to eight officers from the Secret Services.
Another police sergeant was brought on board at the end of 2018.
Dr Galea Farrugia once more reiterates that it is not material evidence.
"A pardon is not evidence. The court is only obliged to collect evidence. It is not a public document, it is a document of the President of State and who am I to exhibit it?”
Dr Comodini Cachia walks in.
"I can't understand why the prosecution did not abide by the court's orders and did not bring it to court," Mercieca says.
Magistrate Montebello says that we have already been through this.
Dr Galea Farrugia says it is not here and he advised Arnaud not to bring it to court.
Arnaud says that he does not have it here. He explains that the AG advised not to exhibit the presidential pardon due to certain details.
The court has suspended the cross-examination of Arnaud.
Theuma says "I don't have a mobile."
They leave the courtroom.
– Keith Schembri said Fenech never informed him of the murder
– Schembri testified that Joseph Muscat told him to tell Fenech not to leave Malta
– Schembri claimed that the PN leader Adrian Delia had asked Yorgen Fenech for €50,000 so that David Casa would not be re-elected as an MEP. Delia denied this claim
– Keith Schembri also claimes that the form Head of media for the PN Pierre Portelli used to collect money from Fenech and that he once saw him at the Portomaso reception
– Schembri denies writing a letter to doctor Adrian Vella to pass on to Fenech