Yorgen Fenech’s defence team is insisting on full disclosure of evidence in the Daphne Caruana Galizia murder case, saying that without that there “will be no trial”.
In a gruelling three-hour court hearing, Fenech’s lawyers accused prosecutors of wanting to sew up the case and have Fenech “convicted at all costs”.
Prosecutors rebutted by saying an inquiry into the murder was ongoing and that all the evidence would be produced at the trial.
A judge reassured Fenech’s defence team that all evidence would be made available to them, and indicated that the trial would be a long one.
“This will not be a trial that will be over in two weeks,” judge Edwina Grima told the court, adding that jurors would be told that only what they heard in court was relevant.
Fenech is pleading not guilty to complicity in Caruana Galizia’s 2017 assassination. He was indicted for that crime earlier this year, setting the stage for an eventual trial.
But the accused’s defence team has said that there is still evidence that needs to be included in the case – evidence they insist could exonerate their client.
That evidence includes data from a phone that belonged to former OPM chief of staff Keith Schembri as well as phone intercepts between self-confessed middleman Melvin Theuma and others.
Another phone intercept allegedly featured Theuma’s confidante, Edwin Brincat il-Ġojja, speaking to former police commissioner Lawrence Cutajar, one day before Cutajar testified in the case.
Fenech’s legal team drove home their arguments for full disclosure.
“It’s an extraordinary situation. We made those requests twenty times,” stressed lawyer Charles Mercieca, who also noted that Schembri had never been cross-examined in the case as the decision to issue a bill of indictment against Fenech had cut that short.
Police have said that the phone of Schembri’s that they possess is not the same one that went mysteriously missing hours before Schembri’s 2019 arrest. The matter is the subject of separate constitutional proceedings before Mr Justice Mintoff.
Mercieca argued that nine recordings that came to light at a later stage of the murder compilation contradicted Theuma’s version of events whilst corroborating Fenech’s claims that he never ordered or paid for the assassination.
When Theuma realized that the ‘hidden’ tapes had been discovered, he tried to commit suicide, said Mercieca, alluding to a self-harm incident in 2020.
Fast forward to 2021, Theuma was eventually back at the witness stand, those tapes were played out and “wonder of wonders” his answers were prepared “word for word,” Mercieca told the court.
He alleged that undisclosed phone intercepts also suggested his client was being framed for the crime.
The lawyer cited intercepted calls between a lawyer and Theuma, Theuma and Edwin Brincat il Gojja, as well as between il Gojja and former police commissioner Cutajar.
When the magistrates’ court upheld the defence’s request for those tapes, police said that those intercepts were no longer in their possession.
Theuma had also been inconsistent when asked if he had any other recordings, the defence argued. While the middleman had initially denied having any other recordings, Mercieca argued, he had later said that he may have recorded a business associate of Fenech’s, Johann Cremona.
Fenech’s lawyers claimed that there were “29 hours of recordings” that had not yet been heard and said they needed time to hear them and prepare their defence.
“We want a fair trial,” Mercieca stressed.
Mercieca told madam justice Grima that there was evidence that Theuma’s step-daughter had helped him in handling his recordings.
When summoned to testify, the prosecution had noted she was the subject of criminal investigations. She was duly cautioned but chose not to reply to questions, Mercieca said.
Fenech’s defence team also complained about only being given one night’s notice about foreign experts testifying in the case.
Those experts had not been cross-examined, Mercieca said, arguing that the defence “need that evidence to make submissions on pre-trial pleas.”
Prosecution rebuts: ‘absolute lie’
Deputy attorney general Philip Galea Farrugia argued that all the evidence would be produced at the trial. As for the murder inquiry, it was still ongoing.
The defence’s allegations that some recordings had been kept hidden was an “absolute lie”, he continued. That issue was related to file formats and software and had been explained in court by an IT expert, he said.
As for the phone intercepts, those were intelligence – not evidence – and in any case, Galea Farrugia said he had no knowledge of them.
At the end of Friday’s hearing, the Caruana Galizia family filed an application asking for authorisation to receive copies of all applications filed before the Criminal Court.
The attorney ġeneral did not object while the defence said that they would consider the request. Judge Grima made it clear that even in light of EU directives, the victim’s status was to be safeguarded throughout the proceedings.
Charles Mercieca, Gianluca Caruana Curran and Marion Camilleri represented Fenech. Deputy attorney general Philip Galea Farrugia prosecuted. Jason Azzopardi and Therese Comodini Cachia represented the victim’s family.
The case continues in November.
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