Yorgen Fenech lawyers complain of rights breach after judge refuses to allow further 'time wasting'

Homicide Squad inspector ordered to exhibit his personal case notes to the judge, who will then decide whether they are safe to pass on

Charles Mercieca and Gianluca Caruana Curran, part of Yorgen Fenech's legal team (Photo: James Bianchi/MaltaToday)
Charles Mercieca and Gianluca Caruana Curran, part of Yorgen Fenech's legal team (Photo: James Bianchi/MaltaToday)

Yorgen Fenech’s legal team have openly accused the judge slated to preside his trial, of breaching Fenech’s fundamental rights, during the third sitting intended to hear the defence’s preliminary pleas, but which was once again derailed, this time by the defence’s claim that the prison authorities were making it impossible to communicate with their client.

The Wednesday sitting before the Criminal Court, presided by Madam justice Edwina Grima, began with testimony from Homicide Squad Inspector Kurt Zahra, who had been asked to exhibit his personal notes on the case. He explained the notes are constantly updated, but insisted that he had exhibited all the notes connected to his testimony.

But Fenech’s defence said they wanted full disclosure of all of his notes, something which Zahra resisted, telling the court that there were records relating to other issues which are “not necessarily” related to the case. He said he feared this would cause problems to other, still pending investigations.

The court ordered the inspector to exhibit them in their entirety, ruling that she would see them herself and then decide if there was anything which could impinge on the criminal justice process.

In its decree, the court ordered inspector Zahra to exhibit his entire prime note, which would be sealed. After taking note of the contents, the court would then issue a decision on Fenech’s application to see them. The judge stated that if there was a risk that disclosure would impinge on an investigation, she would make the necessary pronouncements.

The sitting was marred by a series of impolite exchanges between lawyer Charles Mercieca, one of the three lawyers defending Fenech in court, and the presiding judge, when the lawyer complained that he had not been given enough time to consult with his client, amongst other procedural problems.

The lawyer dictated a note to the court, saying that on 23 December 2021, the accused had presented an application before it, claiming that several measures had been introduced to “discourage lawyers from visiting their clients in prison.” The lawyers were facing serious difficulties in communicating with their client and vice versa, a consequence of which was that they were unable to prepare his defence. Mercieca listed the difficulties, which included the lawyers being made to wait outside before being allowed to see their client and being subjected to an X-ray upon every visit, “sometimes even twice a day.”

In addition, it was claimed that Fenech could not see documents relating to the case before they are examined by prison warders. “Today the court file consists of over 70 volumes of papers and the electronic data amounts to over 30,000 GB. Fenech is not able to see them,” Mercieca said.

The lawyer added that Fenech was not given an effective means to see the electronic evidence. “The laptop, which he insisted on and bought, for use in prison, cannot be used as there is no way to charge it in prison.” Mercieca added that since late December, prison visits by lawyers were to be standing affairs, without a table or chairs being allowed. “Any communication is made through Perspex, using a single telephone, which is recorded,” claimed the lawyer, adding that the accused was not able to read, write or pass on any documents to his lawyers during his meetings with them.

Mercieca began to dictate a note to the court registrar, in which he stated that in a decree made in January 2020, this court had said there was enough time to for Fenech to consult with his lawyers effectively and had denied his request. But the judge stopped him, saying that she knew what she said and that she had already denied that request.

Mercieca went on, dictating that he was perplexed at how the court had said there was sufficient time, being stopped again by the judge. “I am ready to take an oath on this!” he shouted.

The court then decreed the next sitting would be attended by the prison director, who would testify as to whether the accused was being allowed to communicate effectively with his lawyers about all his court cases. She stopped Mercieca from dictating his note. “What you wanted to say was said. OK you want the director to testify about this. What more do you want to do?”

Mercieca declared that as he was not given “effective” time to consult with its client, he was not in a position to make submissions.

This led to angry exchanges between the judge and the defence, whom she accused of wasting time.

Assistant Attorney General Philip Galea Farrugia, interjected, telling the judge that a prison representative had already stated that communications are not recorded and the extraordinary circumstances of the pandemic also had to be taken into account.

“Even in court there is Perspex,” he said.

The court said it was granting the defence the next sitting to make counter arguments on this issue, but Mercieca insisted once again that he wanted to finish his verbal note. The, now audibly exasperated, judge said that she did not want to hear arguments on an issue which had already been decided.

“Give us means to speak to our client, we want a table and chair, ”Mercieca continued.

He insisted on finishing his verbal note “to crystallise the impossibility of communicating with his client.”

But the judge said the lawyer had already made his position clear and was repeating what he had already stated in his application. Noting the sitting was supposed to be for the court to hear defence arguments on the preliminary pleas, the judge asked Mercieca “will you make arguments on the preliminary pleas today?”

“We haven’t spoken to him for a month,” replied the lawyer, as the court pointed out that these pleas have been pending since last March. “Today,” repeated the judge.

“This is a miscarriage of justice!” cried Mercica. “We haven’t yet been given the files, we were given the wrong ones!”

The Court then asked Mercieca whether he was declaring his preliminary pleas to be closed.

Instead of replying, the lawyer insisted on finishing his verbal note. The judge refused, saying the decision was to be made by the court, prompting Mercieca to proclaim that the court “was denying my client his rights.”

The court proceeded to dictate a note. “The court sees the defence’s position is very clear and no further arguments are required, and has already given another sitting to decide on the difficulty of communicating with its client.”

Mercieca interrupted again, suggesting a short adjournment to let the defence make its submissions.

“Make them now, let me hear them,” challenged the judge, her patience seemingly wearing thin.

Mercieca ignored the court’s order to make his preliminary pleas and demanded to be allowed to dictate a note to the effect that the defendant was being denied his fundamental rights.

Defence lawyer Marion Camilleri intervened, suggesting the case be adjourned for the prison representative to testify.

The Court refused, judge Grima pointing out that this sitting had been pending since September and that this was the third adjournment for the defence’s submissions. “Today you are going to make your submissions or otherwise we will be moving on so the AG will be making his. You don’t want to listen.”

Mercieca pleaded for “at least four or five days” to speak to his client, then threatened to boycott the sitting, but the judge stood firm.

“You are going to repeat the same things again. I want a yes or no answer. Are you going to make submissions today?”

The court dictated a verbal note, saying the defence declared it was not in a position to make oral submissions without consulting its client.” But before she could finish Mercieca interrupted the judge again, saying that the defence “was not saying what you are going to say.”

The court ordered the prosecution to begin its submissions, leaving the defence to make its arguments on another date.

Mercieca was undeterred. “The court evidently believes in its heart that there is a problem as it is summoning the prison’s representative to testify,” leading to further bickering with the judge.

“My hands are tied,” Mercieca protested. “We have voice recordings indicating a frame up which haven’t yet been given to us…” he alleged.

The court then addressed Deputy Attorney General Galea Farrugia, asking him to begin his submissions. He explained he had come prepared to hear the defence today and that his submissions were not yet ready.

After another outburst by the defence, the judge noted down that the defence was challenging the authority of the court.

Even then, Mercieca refused to back down, telling the judge “do you know how many times we’ve gone to prison to speak to him?”

“Do you know how many times I’ve come here to hear you say the same thing?” Madam Justice Grima replied. “I am tired of arguing with you and with you breaching the orders of this court,” said the judge, ordering that at the next sitting the AG will begin his arguments.

The judge said the defence was wasting time and refused to allow Mercieca to dictate another note.

After encountering further difficulty in setting the date for the next sitting, the parties finally agreed on 23 February.

 “Let’s waste another month,” quipped the judge. An adjournment was also fixed for February 4 solely to hear the testimony of the prison director.