‘We couldn’t identify who was leaking the information,’ – Police Commissioner

FILE PHOTO: Maltese businessman Yorgen Fenech, who was arrested in connection with an investigation into the murder of journalist Daphne Caruana Galizia, leaves the Courts of Justice in Valletta, Malta, November 29, 2019. REUTERS/Yara Nardi

Tista' taqra bil- Malti.

Another sitting in the constitutional proceedings initiated by murder suspect Yorgen Fenech took place on Tuesday morning. Fenech initiated proceedings in an attempt to remove lead investigator Police Inspector Keith Arnaud from the murder investigation into the assassination of Daphne Caruana Galizia.

Highlights from Tuesday’s sitting:

  • Former Police Commissioner Lawrence Cutajar claims that he was one of the first officials to arrive on scene
  • Cutajar confirmed that disgraced OPM Chief of Staff Keith Schembri was present at the Castille briefings
  • Cutajar did not listen to all the recorded conversations which self-confessed middleman Melvin Theuma made
  • Schembri’s name cropped up the first time the Police questioned murder suspect Yorgen Fenech for the first time
  • Police Inspector Keith Arnaud said that the Police did not take FBI’s offer for assistance after it was made last October
  • The lead investigator told the court that they convened a meeting with Times of Malta to dissuade them from publishing a story which might have endangered the investigation.
11:55 Mr Justice Mintoff gave the parties a week from today to indicate who would be called to testify.

The court has been adjourned to 11 February at 9am.
Monique Agius
11:49 Mr Justice Mintoff brought a copy of the US embassy statement issued on 16 October 2019, and asked whether they asked the embassy their assistance to find Schembri's mobile.

'Eh…I know about this statement but Schembri's mobile issue did not come up back then,' Arnaud said.

'But an offer from FBI is always an offer from FBI,' the judge said.

'The issue of the lost mobile phone is being investigated. But we said no at that point,' Arnaud told the court.

'The investigations are still ongoing on the murder, the leaks, the phantom job…' Arnaud replied. He explained that there were different teams on these investigations.

'To date, we have not taken up the US embassy's offer,' Arnaud said.

'Would I be correct in saying that you did not exclude their offer?' Dr Buttigieg asked.

'Yes, of course.' Arnaud said.
Monique Agius
11:44 Police Inspector Arnaud said that he always spoke to Fenech in the presence of his lawyers, except for twice when he spoke to him at the lock-up.

'We've always investigated the information Fenech had passed on in an informal manner, and we've always kept him updated,' Arnaud said, adding that the investigations were carried out as a team.

'No name was mentioned at the lock-up. The only time Schembri's name came up was during informal questioning in the presence of his lawyers,' Arnaud said.

'The second time I spoke to Fenech was when he was leaving the lock-up to go home. I had told him that we will investigate everything that he had said,' Arnaud recalled.
Monique Agius
11:40 Dr Buttigieg asked about the date of the arrests as mentioned in the recordings and the leaks.

Arnaud explained that police inspectors from the Economic Crime Unit were investigating the leaks and the phantom job. 'I've given them a copy of the work we've carried out,' Arnaud told the court.

'As far as I know the investigation into the leaks is not yet closed. However, we're not the ones investigating the leaks,' Arnaud replied to a question to Dr Buttigieg.

'Before last October, we had some two meetings with Caruana Galizia's relatives about the proceedings about the alleged hitmen,' Arnaud explained. He added that they had given an update to the family of the slain journalist after 16 October 2019.

'I recall Matthew making remarks and I was happy he remarked because it was about what we were investigating,' Arnaud said.

'Did they [the family] ever complain about the investigation?' Dr Buttigieg asked.

'When we had carried out the arrests, Dr Peter Grech … sorry … Dr Peter Caruana Galizia had praised my work,' Arnaud said.
Monique Agius
11:36 A short recess was called by the judge. We're back reporting live.
Monique Agius
11:11 Mr Justice Mintoff asked about the OPM briefings in October 2019. Arnaud said that he had held a meeting with Times of Malta to dissuade them from publishing a story which might have endangered the investigation.

'When Times of Malta published the story, the decision about moving in on money-laundering had already been taken,' Arnaud told the court.

The article had mentioned a "prominent businessman" and suspicion had fallen on Yorgen Fenech. The prime suspect at the time was Melvyn Theuma but police had thought of Yorgen Fenech as the next level, Arnaud explained.

'Vincent Muscat never mentioned Yorgen Fenech,' Arnaud told the court, 'so, we had focused on Melvin Theuma who was our prime suspect at that stage.' This was due to Muscat told the police. The existence of the recordings emerged from phone-tapping of Theuma.

'I think Yorgen Fenech was mentioned at the OPM briefings, but we did not know about the contents of the recordings so we did not know his involvement,' Arnaud told the court.

Mr Justice Mintoff asked whether there was an OPM briefing after the article was published.

“Yes. We also updated the magistrate. The Times story came out after the police had contacted Europol with their plan to go down the money laundering route. We contacted the newspaper and said that they were going to damage the investigation,” Arnaud said.
Monique Agius
11:00 Dr Buttigieg asked Arnaud about Dr Adrian Vella's interrogation.

Arnaud explained that Dr Vella had told them that he passed on only one letter to Fenech while on police bail and denied handing a letter before arrest.

Fenech could be seen standing up and approaching his lawyers a number of times. He could also be heard saying "no" at various points in Arnaud's testimony.

Arnaud told the court that Fenech kept adding to his initial version of events and that he would regularly visited him in the lock-up and asked him if he had anything to add.

The chief inspector told the court that Fenech was given a disclosure of the evidence against him and was allowed to listen to one recording. 'We were fighting against time,' Arnaud told the court.
Monique Agius
10:56 Arnaud said that after Theuma was granted presidential pardon, Fenech's version changed and new information emerged. However, from their investigation they did not find evidence to prove what Fenech was saying.

'Fenech had said that he was told to give this version of events, because Schembri told him he would be granted presidential pardon,' Arnaud recalled.

The police inspector said that initially Fenech had said that Schembri was not involved but when he was not granted presidential pardon, 'suddenly Keith Schembri became involved'.
Monique Agius
10:41 The Chief Investigator explained that similarly when Fenech was arrested for the first time and his lawyer informed them that he would be requesting pardon, they played the recordings to Fenech. Dr Caruana Curran interjected 'recording'.

Dr Caruana Curran said it is not right that Arnaud is not mentioning the timing of the pardon. The media does not know about this.

“I'm not trying to twist the facts. There is a logical sequence of events and I haven't yet come to it,” Arnaud said.

Fenech could be seen speaking to his lawyer.

Arnaud told the court that they asked him about Theuma's letter and Keith Schembri. Dr Caruana Curran interjected saying 'no, for sure no on that day'.

The police inspector said that it might have been the next day 'but for sure, before Theuma was granted the presidential pardon'.

Arnaud said that once Keith Schembri's name surfaced, they investigated him first through Melvin Theuma. The police inspector sounding a bit agitated said that they did ask several questions to Theuma about Schembri. He highlighted that these sessions with Theuma were recorded.

'We couldn't arrest him [Schembri] as soon as we found the photo. But we asked questions to Theuma. We kept asking Melvin Theuma about Schembri. I can't just arrest a person and not know what to talk to him about,' Arnaud said.

'Fenech corroborated Theuma's information in the first phase of the investigation,' Arnaud told the court, adding that when Fenech's request for pardon was turned down his version changed.
Monique Agius
10:37 Police Inspector Arnaud said that the investigating team was not aware of the contents of the recordings. He was asked whether the inquiring magistrate had heard the recordings done by Theuma. 'Eh.. no, we got Theuma to testify,' Arnaud replied.

He explained that what was done instead was that they played the recordings in the presence of Theuma who was assisted by his lawyer and asked him to explain bit by bit what he meant in the recordings. Arnaud said that this started around 18 November up to the day he was given presidential pardon.
Monique Agius
10:31 Police Inspector Arnaud said that there were a number of possibilities which they could have taken as investigators.

However, then they started closing in on Melvin Theuma. Arnaud explained there was a lot of discussion about the different paths they could have taken. He further explained the different "what ifs" and the different end results.
Monique Agius
10:24 Arnaud was referred to a statement by US Embassy offering assistance in the investigation.

After testifying on a statement, Mr Justice Mintoff told him that the statement was rather recent. Arnaud replied that he was not aware of this recent statement and he was testifying on something else.

'No, I testified about something else, I don't know about it,' Arnaud said.

'This statement was everywhere. The PDF was on Twitter. You should check it out since it concerns the investigation,' the Judge said.

Arnaud told the court that the investigation on Schembri and his phone is still ongoing and they have a local mobile provider assisting them.
Monique Agius
10:18 Police Inspector Keith Arnaud took the witness stand. He explained that the investigation was led by a team, in a reply to a question by Dr Buttigieg.

“Yes. It was mainly me and Mr [Kurt] Zahra who were main leaders on the investigation at first and then there were others who assisted us.” Arnaud told the court.

Arnaud said that there were some changes but Europol were always present in Malta assisting the investigation.

Arnaud was asked whether Europol was presented at OPM briefings.

"No. But they would know we were updating the PM. We were also present at meetings at The Hague. They also assisted us in the decision on the pardon." Arnaud replied.
Monique Agius
10:16 Dr Camilleri asked about the Selection Board.

Three people sat on the board, the witness said.
Monique Agius
10:11 A representative of Infrastructure Malta took the witness stand.

The IM representative explained the setting up of the government agency and the recruitment of personnel.

She explained that the process for a particular post was entrusted to JobsPlus, before proceeding to explain JobsPlus procedure of calls for application under Part I (7 people were eligible but none applied). Under Part III two people applied she told the court.

She explained that the two candidates had an interview. Both candidates passed the job interview. One was given the job, passed the probation period and had the job confirmed in July 2019.
Monique Agius
10:09 Dr Caruana Curran asked if in the remarks on the detention book, included remarks on times when Police Inspector Keith Arnaud went to visit Fenech at the lock-up.

'I can't tell you specifically, but there are all the remarks there,' the Police Sargent said.
Monique Agius
10:04 Police Sargent took the witness stand. He is stationed at the lock-up.

He got a copy of when Fenech was under arrest at the lock-up.

The police officer is giving the times when Fenech entered and exited the lock-up. These are not times of arrest.

20 November 9.30pm – 21 November 8.30pm
22 November 4.05pm – 23 November 10.20
24 November 4.05pm – 26 November 3.07pm
27 November 11.05am – 29 November 10.52am
30 November 9.15am – 30 November 7.50pm (he was later arraigned in court).
Monique Agius
09:56 Dr Buttigieg said that Melvin Theuma's testimony from the criminal case will be exhibited in court. Dr Camilleri pointed out that Theuma already testified before this court.

Mr Justice Mintoff said that if the testimony from the compilation of evidence is presented before this court, then the defence has the right to cross-examine the witness.

Dr Camilleri explained that their move to present Arnaud's testimony from the compilation of evidence, was because discrepancies resulted from what was said before the constitutional court and the compilation of evidence. 'The defendants had all the time needed to reply to our application,' Dr Camilleri told the court.

Dr Buttigieg explained that she was exhibiting the transcripts from the compilation of evidence because Theuma had testified at length in the compilation of evidence.

Mr Justice Mintoff pointed out that the defendants could not come through the backdoor by presenting a transcript from another court case to overcome an obstacle in procedure.
Monique Agius
09:54 Cutajar explained the chain of command after a question by Dr Caruana Curran.

'I felt that Police Inspectors Keith Arnaud and Kurt Zahra should liaise with now Assistant Commissioner Mallia when Valletta was removed,' Cutajar explained.
Monique Agius
09:52 Cutajar was referred to the alleged recording where self-confessed middleman Melvin Theuma mentions Kenneth from Castille.

He said that this was different, because the searches and arrests had been done by then.
Monique Agius
09:49 Dr Caruana Curran pointed out that since Theuma's arrest until Fenech's arrest the briefings at OPM continued. He asked Cutajar whether Schembri had informed him that he was friends with the murder suspect.

'No, no, no,' Cutajar replied. He explained that the meetings pre-2019 concerned Muscat's request for presidential pardon otherwise the meetings concerned the coordination with Europol.

Cutajar told the court that he did not go into the Fenech's phone tapping. He added it might have come up in a task force meeting but he did not go into it.
Monique Agius
09:45 Police Commissioner Cutajar was asked about the OPM briefings. He was asked when did Keith Schembri's name crop up in the investigation.

'When we spoke discretely to Fenech,' Cutajar told the court.

Dr Caruana Curran referred him to Melvin Theuma's tapes. He told him why was Schembri not investigated then, when Theuma was arrested before Fenech.

'If I recall correctly, it was in one of the phone calls which went … 'għid lil sieħbek jgħinna'…' Cutajar told the court, before proceeding to tell the court that he did not listen to all the recordings but the investigators would.

'The investigators never told me that Schembri was a person of interest in the investigation,' Cutajar said.
Monique Agius
09:43 Dr Camilleri reiterated that she was not asking who did the murder investigation, but who investigated the information leak.

Police Chief Cutajar said that this information emerged during the interrogation carried out by police inspector Kurt Zahra.

'Was it Kurt Zahra alone? Was it investigated?' Dr Camilleri asks once again.

Mr Justice Mintoff intervenes: 'can you confirm, yes or no?'

Cutajar: 'no, I can't'.
Monique Agius
09:40 Police Chief continues repeating 'ma rriżultana xejn.'

Dr Camilleri referred to Fenech's testimony where he said that he received investigation from Keith Schembri which came from Keith Arnaud, and whether this claim was investigated.

Dr Cutajar said that Police inspectors Keith Arnaud and Kurt Zahra investigated the leaks of information.

'Most of the investigation was carried out by Police Inspector Kurt Zahra, as far as am aware,' Cutajar said.
Monique Agius
09:37 Cutajar testifies under cross-examination.

Lawyer Marion Camilleri went straight to the point, asking whether he was aware of information leaks to the media and third parties.

'During the investigation, we were aware, but we could not figure out from where these leaks were coming from,' Cutajar replied.

'So, it resulted in the negative?' Dr Camilleri asked, referring to Arnaud's statement that when he told the court that he feared for his life.

'We've investigated the leaks, but it resulted in the negative. [Heq… ma wasalna mkien]' Cutajar told the court.
Monique Agius
09:34 Police Commissioner explained that by involving the Economic Crimes Unit, so if nothing was found in relation to the murder they would proceed on money laundering. 'This decision proved me right,' Cutajar claimed. He added that he was suffering the consequences of such a decision.

Cutajar explained that the decisions were taken by the task force led by Assistant Commissioner Silvio Valletta up until to the court decision which ordered his removal.

'I had decided to help in the investigation, especially when it came to logistics,' Cutajar said.

'The police investigations are still ongoing,' Cutajar concluded.
Monique Agius
09:32 'In April 2019, there was a bit of dilemma, whether to carry out arrests and searches then, or to wait fearing that they would find nothing upon arresting individuals of interest. I can say, that I shouldered this decision, that in the circumstances, we should not opt for searches and arrests, but we should have a plan,' Cutajar recalled.
Monique Agius
09:29 'I was present at OPM briefings, in these meetings Prime Minister Joseph Muscat, his chief of staff Keith Schembri and the AG would be present,' Cutajar said. He added that sometimes Justice Minister Owen Bonnici was present.
'These meetings concerned mainly Vincent Muscat's request for presidential pardon,' Cutajar told the court.

He explained that sometimes Arnaud would be present.

He added that after some time the Prime Minister had informed them that he was advised against granting Muscat presidential pardon.

In December 2018, the Police informed Europol that Muscat's request was turned down.
Monique Agius
09:26 Police Commissioner took the witness stand. He was asked to outline what happens in a homicide case.

Cutajar explained that the first to go on site would be the RIU or district police known as 'field officers'.

He explained that when it is a 'big' case there is a team of investigators from the Homicide Squad. In Caruana Galizia's assassination there was the FBI and the Dutch forensics involved.

Speaking about Caruana Galizia's assassination, he said that 'I was the first one to arrive on site'.

AC Silvio Valletta was in charge on that time. At that time Superintendent Michael Mallia was the liason officer with Europol.
Monique Agius
09:25 State Advocate Buttigieg informed the court that Police Commissioner Lawrence Cutajar will be testifying today.
Monique Agius
09:23 Lawyer Marion Camilleri said that the plaintiff does not have any more evidence to present in court.
Monique Agius
09:22 Murder suspect Yorgen Fenech walked in.

Mr Justice Lawrence Mintoff entered the courtroom.
Monique Agius
09:19 Thank you for joining us. We're reporting live from Hall 19. Present in the courtroom, there are lawyers Marion Camilleri and Gianluca Caruana Curran. State advocate Victoria Buttigieg.

Police Inspector Keith Arnaud and Police Commissioner Lawrence Cutajar were also present in the courtroom.
Monique Agius

Daphne Caruana Galizia murder suspect Yorgen Fenech had filed a constitutional application where he described chief investigator Keith Arnaud’s investigation into Keith Schembri’s possible role in Daphne Caruana Galizia’s assassination as ‘careless, approximative, if not amateurish’.

In separate criminal proceedings, Fenech is being charged with being an accomplice in the murder of journalist Daphne Caruana Galizia.

The court is presided over by Mr Justice Lawrence Mintoff.

Lawyers Marion Camilleri and Gianluca Caruana Curran are appearing for Fenech.