The Malta Independent 22 September 2018, Saturday

Daphne’s murder - Phone numbers used were purchased in November 2016

Helena Grech Tuesday, 19 December 2017, 10:06 Last update: about 10 months ago

The compilation of evidence into the murder of journalist Daphne Caruana Galizia finally got underway today after much of the sitting was taken up by legal maneuvers.

A request for the third magistrate appointed to the case to recuse herself was rejected, with the court starting to hear evidence in the afternoon.

Prosecuting inspector Keith Arnaud testified at length about police investigations which took place after Caruana Galizia was killed in a car bomb just metres away from her Bidnija residence on 16 October at around 3pm.

Vince Muscat, George Degiorgio and his brother Alfred Degiorgio are charged with the brutal murder of Daphne Caruana Galizia. The three have pleaded not guilty to the charges brought against them.


 

Arnaud told presiding magistrate Claire Stafrace Zammit of two key Sim cards whose activity was described as "suspicious" which were activated within 20 minutes of each other.

Arnaud told the court that the bomb was an "organic explosive" as confirmed by overseas testing.

Police had surveyed the area around Caruana Galizia's home in order to ascertain the best vantage points. The best one found was that of tat-Targa Battery. Upon visiting the area, a rubble wall was found to have been semi-collapsed.

Arnaud told Stafrace Zammit that a white Peugeot had been spotted around the area on the days preceding the murder and on the day of the murder, and that it had never been spotted again after the murder.

A fresh cigarette butt was spotted in the area which led the authorities to carry out a forensic analysis.

Phone records

It was ascertained that Daphne Caruana Galizia had her personal mobile on her at the time of the murder and last used her phone at around 2.30pm that day. After getting phone records from data providers, the police found that one particular phone number, with a Vodafone SIM card, disconnected from the tower at precisely the moment it sent a text message, at around 2.58pm.

The message was sent to another mobile phone that was out at sea. Both numbers had been activated in November 2016, and were used just three times.

The mobile phones used had 2G capabilities, but one of them had been programmed to receive mobile commands. They were used for the third and final time on 16 October, on the day of the murder. Through the timing of the text message and the location of both phones, the prosecution concluded that the text message was sent to detonate the bomb.

The mobile used in Bidnija had been switched on at around 2am on 16 October, and remained active until 3pm - when the bomb was detonated. No activity was recorded after that.

Arnaud told the court how George Degiorgio's phone was already being tapped by police. He described hearing Degiorgio's voice when asking a third person to top him up €5, and when the person on the other end of the phone line could not, he then asked how to get emergency credit on his phone. The court heard how he then called someone else to ask to be topped up, without delay, to which he was promptly topped up with credit.

Arnaud testified that the topped-up number was in the same location as George Degiorgio, and that it had only made contact with two numbers previously. It was also part of a batch of SIM cards activated within 20 minutes of each other.

Police also found that the brothers both own pleasure boats, and after searching CCTV footage Alfred Degiorgio's boat had been spotted leaving the Grand Harbour at roughly 8am on the day of Caruana Galizia's murder. It was again spotted outside the Grand Harbour at 2.50pm.

Recusal

Earlier in the proceedings, the defence put forward a request for Magistrate Claire Stafrace Zammit to be recused on the basis of an article which featured on the blog of Caruana Galizia. She had written about the magistrate's husband resigning from MEPA. The defence claimed that these were words of praise and therefore asked for recusal. The defence also put forward a request for the magistrate to refer to the Constitutional court citing issues concerning the right to a fair trial.

It was argued that because of comments made by the PM the previous day, where he expressed confidence in the judiciary, media pressure and undue scruitiny called into question the independence of the court.

It was also argued that because Chief Justice Silvio Camilleri had chosen the magistrate to preside over the case, without providing reasoning, creates concerns for the victims on the impartiality of the judiciary.

Both requests were denied with the latter one being declared frivolous. The court stressed that the article in question does not include words of praise and therefore there was no basis for recusal. With respect to the request for a Constitutional reference, Micallef Stafrace held that the chief justice never made contact with her or gave instructions and that media coverage not the PM's comments constitute as undue pressure.

Magistrates Donatella Frendo Dimech and Charmaine Galea had previously recused themselves after similar requests by the defence.

Legal aid Martin Fenech is assisting Vince Muscat. Lawyera William Cuschieri and Martha Muscat are representing Alfred Degiorgio after legal aid Francine Abela withdrew from the case.

Legal aid Benjamin Valenzia also withdrew from the case and was replaced by head of legal aid Marc Sant who is assisting George Degiorgio.

Appearing parte civile for the family are lawyers Eve Borg Costanzi, Jason Azzopardi and Therese Comodini Cachia. Inspectors Kurt Zahra, Keith Arnaud and Deputy Attorney General Philip Galea Farrugia prosecuted.

The victim's husband, Peter Caruana Galizia, her parents and sister were present throughout the proceedings.

A timeline, in reverse order, of the court proceedings today may be found below:

5.40pm: The case is adjourned and will continue tomorrow morning at 10am.

5.30pm: It transpired that the Degiorgio brothers both owned a boat. The boat belonging to Alfred Degiorgio was found to be leaving the Grand Hharbour on the day of the murder at around 8pm. At around 2.55pm, when the bomb was activated, the boat was registered as coming back and heading to the direction of Marsa

5.27pm: Arnaud said that a few minutes later, at 9.04am, a message was received with the credit top up details. Arnaud told the court that there was suspicion that these numbers were used by George Degiorgio and therefore telecomms information on George, his brother Alfred and Vince Muscat.

5.23pm: A phone call was heard that was made on the day on Daphne's murder, at 8:58 where George Degiorgio was heard asking a third person "do me a favour and top me up 5e". George asked how he could get two euro on his phone, to which the third party said to send a special text which would get Vodafone to put 2e at his account. The call was made around the Bahar Ic-Caq area. A second call was made by George Degiorgio asking "do me a davour and send me 5e vodafone. Send it to me as a message on this phone and try not to take too long please”.

5.20pm: Arnaud confirmed that the two phone numbers described were used to detonate the bomb. He said that police were informed by special forces that George Degiorgio's mobile, registered in his name, was intercepted, and phone records began to be checked.

5.10pm: At 01:41am on the day of the murder, it was found that one of the mobiles gave a static location as being in Bidnija up until the time of the assassination at which point it went off the grid. At 14:58, the mobile registered in Bidnija sent out a text message, one second later received a message, which the inspector believes to be the delivery report, and this mobile was then deactivated. The mobile registered to be in the limits of Valletta was found to have its location registered at erratic places all across the island following the incident. Arnaud told the court that they found this activity to be suspicious.

5.05pm: The phones were only used to communicate between the two numbers, with no other phone numbers having ever been dialled out, Arnaud said. Investigations found that the phones were active on three occasions, when the sim card was activated for a duration of 20 minutes. On 21 August, activity was recorded close to Bidnija, which was the second time activity was recorded. And the third time was on the day of the assassination, between the zones of Bidnija and Valletta. Arnaud said that the mobiles had been programmed so that it could be used remotely.

5pm: Analysis of the sim cards used by both Vodafone numbers, were purchased on November 2016 and activated on 10 January 2017. They were activated in Zebbug.

4.58pm: Police concluded, after seeing that the first Vodafone line was in Bidnija and the second line was connecting to a Vodafone tower calleed YMCA_1 in the outskirts of Valletta facing the water. This has led police to belie that there was a spotter in Bidnija who messaged the second phone in Valletta.

4.54pm: All mobile data of the Bidnija area was gathered, Arnaud told the court, in order to see what type of activity took place at the time of the assassination. He described how a Vodafone number had disconnected from the local cell tower at 14:58. There was activity on the mobile phone until 14:58, and after then it went completely dead. The mobile ceased to be active upon sending the message.

4.50pm:  Upon inspecting the vantage point, a cigarette that had been freshly stubbed out. Authorities were called in order to carry out forensic investigation. Arnaud testified that at the time of the incident, Caruana Galizia had her personal mobile on her person. The last mobile activity recorded was at 2pm. Police analysis together with FBI analysis began to oversee the mobile data.

4.46pm: Arnaud continued to say that on the day of the incident, and 15 days prior, a small white car with the number plate ending QZ had been observed at this Targa Battery vantage point. At this location, there was a low-laying wall where some chicken wire had been cut. A witness in the area had told police of this frequently spotted car. The source told police that on the day on the explosion, the car in question was parked in the direction facing Mosta. At around 2.30pm, the car was still in this spot, the court heard. The car was not spotted again after the crime took place.

4.45pm: It transpired that there was a person who was close to the incident and had been following the victim in the weeks prior to the murder. This was because the victim did not have a fixed schedule. Places were established that were ideal for observation, such as Targa Battery.

4.43pm: From preliminary investigations, the explosive was described as being organic. Efforts began to gather all CCTV footage within the area.

4.40pm: Dutch investigators arrived at the scene of the crime on 17 October, the day after the murder. They gathered evidence while on 19 October, the rental car was moved and place in police warehouses for examination.

4.39pm: Inspector Arnaud testified to how the area was cordoned off and protected to safeguard evidence. He said a dedicated phoneline was set up for anybody to call with information on the case.

4.37pm: The court heard how upon leaving the house on that day, Daphne Caruana Galizia walked out the house to run an errand, realised she forget her chequebook, turned back home and went out again. Matthew Caruana Galizia heard an explosion close to home and left the house to see what happened.

4.36pm: Inspector Arnaud and and inspector Kurt Zahra spoke to the victim's family and confirmed the car had been rented out for some four months. He said that Matthew Caruana Galizia would sometimes use the car. The car was used on Sunday morning and that afternoon her son Matthew used the car. According the victim's children, nobody used the car again until the tragic murder took place. Arnaud said that Matthew Caruana Galizia confirmed that he parked outside of their residence.

4.34pm: Inspector Arnaud said a magisterial inquiry was launched, led by Magistrate Consuelo Scerri Herrera. She was later replaced by Magistrate Anthony Vella after an objection from the Caruana Galizia family. He appointed experts to assist in investigations, as well as foreign experts. He said Dutch police were asked to assist in the crime scene investigation, while the FBI was then asked to come and assist with technical analysis.

4.33pm: Inspector Arnaud described arriving at the scene of the crime on the day it took place. He said that the car being driven by the victim, a Peugeot 108 leased from a rental company, was no longer on fire. The area was already cordoned off. The prosecution said it was ascertained that Daphne Caruana Galizia had been using the rental car; this was confirmed by Matthew Caruana Galizia.

4.31pm: Lawyer William Cuschieri said that in frivolous industrial tribunal hearings, parties to the case come prepared with three copies of documents to be presented. He said that he failed to understand how the prosecution did not come prepared with copies for the biggest case Malta has seen in many years. Stafrace Zammit asked the prosecution not to testify in relation to presented documents and continue with his testimony where possible.

4.29pm: Legal Aid Martin Fenech objected to this presentation on the bases that the prosecution is obligated to provide a copy to the defence. Stafrace Zammit warned Arnaud that he is aware of the obligation to provide a copy.

4.28pm: Inspector Keith Arnaud continued by testifying to the events which took place on the day of the brutal assassination. He described being informed of the horrific incident. He told the magistrate that images were taken from Google Earth of Bidnija, showing the residence of the victim. A print-out of the images were presented to the courts.

4.25pm: Inspector Keith Arnaud testifies. He declared that accused George Degiorgio passed a baseless comment to him outside the courtroom and asked the court to take note of this. Lawyer William Cuschieri objected saying this has nothing to do with the case. Arnaud asked the court to ensure that the accused should never pass comments to the prosecution or investigating officers. Magistrate said if this really happened then the defence lawyers must ensure that it does not happen again

4.20pm: Prosecutor Galea Farrugia declared that the victim's husband and son, Peter and Matthew Caruana Galizia will form part of the prosecution's defence and will also be present while the compilation of evidence is heard. No objection was made.

4.15pm: The compilation of evidence set to begin.

4.10pm: Stafrace Zammit turned down the request. Having considered the request, the court found that no undue pressure has been levelled against the presiding magistrate, directly or indirectly, and that there was no communication from the chief justice. She added that there was no contact between the chief justice and the presiding magistrate since it was the court registrar who gave the notification of her appointment to the case.

4.06pm: The magistrate has entered the courtroom.

1.10pm: The court is adjourned till 4pm.

1pm: Comodini Cachia said that the request is so frivolous that the safeguards mentioned by the defence on the way magistrates are appointed are basic and already enshrined without need for lengthy legal analysis. She said we have a bizarre situation where the defence says that it believes in the impartiality of the court, but they still want to be referred to the constitutional court on how the magistrate was impartial. “Either they have confidence in your impartiality, or they do not and if they don’t they should not declare it”. She added that the defence has not raised one example of prejudice when submitting their argument.

12.57pm: Lawyer William Cuschieri questioned that if the court does not allow the request to be referred to the Constitutional court, who will put the suspect’s minds at rest on how the magistrate was chosen in this particular case.

12.55pm: Lawyer William Cuschieri  argued that he arguments entered into by Comodini Cachia make it sound like the request has already reached the constitutional court. He reminded the court that at this stage what needs to be determined is the frivolousness of the request, adding that the defence never called the magistrates impartiality into question as implied by Comodini Cachia. Fenech said that the issue is why was magistrate A chosen and not B, and why no reasoning has been provided by the Chief Justice. He stressed that the chief justice’s decision must be scrutinized, and if the law was not followed properly this should be addressed.

12.37pm: Comodini Cachia is citing European court judgments to examine the validity of the way in which magistrates have been chosen to preside over the case. She stressed that when the chief justice appointed the magistrates, no instructions were given alongside the appointment.

12.35pm: Comodini Cachia is citing arguments for why the request for constitutional reference on whether the suspect's right to a fair trial have been breached should be quashed and found frivolous. She went on to say that the family of Caruana Galizia have a right for the trial to be heard in a reasonable time frame, and that the issue of impartiality had already been decided through the court's rejection to recuse herself.

12.30pm: Therese Comodini Cachia, appearing parte civile, asked for the defence to be clear on whether the constitutional reference request is linking the previous article referenced in the recusal decision. If this is the case, Comodini Cachia said that on the basis of the court decree issued on recusal, where the magistrate found no grounds for this because no words of praise were issued, this court cannot consider the request because it has already decided on the implications of the article in question. She said that if this is the case, this would further underscore the frivolousness of the request for constitutional reference.

12.27pm: Prosecutor Galea Farrugia reminded the defence that the chief justice 's job is to assign work. He quoted Cuschieri where he said that the magistrate was chosen without any known consideration, with Galea Farrugia saying 'God forbid magistrates were chosen with a scope.' Galea Farrugia stressed that the chief justice's role is to assign cases.

12.25pm: William Cuschieri then reminded the court that the magistrate is empowered at this stage to determine whether the constitutional reference is frivolous or not. He also said that the suspects have the right to ask for an investigation on how the magistrates were chosen. "If it was chosen by lot, then we would not have this issue".

12.24pm: The magistrate assured the suspects that she has neither been criticised nor praised by the victim.

12.21pm: William Cuschieri again made reference to a legal book on judicial independence where he says there are multiple judgments which show that undue pressure from the media, the public and the Prime Minister could impinge on the court's independence. He said, on behalf on his client, that they would prefer to have a magistrate who was not praised nor criticised by the victim.

12.19pm: Lawyer William Cuschieri reminded the court of his request for a constitutional reference on his client's right to a fair hearing based on the court's independence being called into question due to public pressure and scrutiny. Cuschieri reminded the court of his argument on the way that magistrates were chosen to preside over the case. He stressed that the first magistrate was chosen by lot. The choice by the Chief Justice of magistrates Charmaine Galea and Claire Stafrace Zammit, without providing any reasons, went against basic legal principles.

12.17pm: The magistrate has re-entered the courtroom. Stafrace Zammit rejects request for recusal made by lawyer Legal Aid Martin Fenech on behalf of Alfred Degiorgio, based on an article featuring on Caruana Galizia's blog. The court rejected the request for recusal on the basis that the aforementioned article spoke of facts and found no words of praise, and therefore does not accept the argument that justice being done and being seen to be done is called into question due to the article. She stressed the request for recusal was not based on any legal grounds

12.09pm: Suspects have been brought back into the court room. The three men have consistently been seated in the same order throughout the various court proceedings, with George Degiorgio in the middle, his brother Alfred to his right, and Vince Muscat to his left.

11.32am: Court suspended while magistrate deliberates.

11.29am: The magistrate will now determine on recusal and lawyer William Cuschieri's previous request for a Constitutional reference is now pending depending on the outcome. Stafrace Zammit clarified that the request for recusal has been made on the basis of one single article appearing on the blog of Caruana Galizia, to which the defence confirmed.

11.27am: Jason Azzopardi and Martin Fenech continued their tit-for-tat on whether there are valid grounds for recusal. Azzopardi repeatedly said there are absolutely no legal grounds while Fenech and William Cuschieri said that the victims have rights, like the right to a fair trial, like everybody else.

11.24am: Vince Muscat spent the entire portion of the proceedings looking to the ground with his hands cupped in his lap. George Degiorgio appeared nonchalant as he has from his initial arraignment to this third court hearing while Alfred Degiorgio followed the proceedings attentively.

11.23am: Martin Fenech continued to cite an article where Caruana Galizia spoke of the magistrate's husband resigning from the post of head of then-MEPA.

11.22am: Stafrace Zammit repeatedly cautioned Fenech from making comparisons with the previous two magistrates who recused themselves in this case because "the case is different. She [Caruana Galizia] never praised nor criticised me".

11.20am: Lawyer Martin Fenech quoted the Constitutional case of Lawrence Grech vs AG, which he says rubbished many previous arguments raised by Azzopardi and held that justice needs to be done and seen to be done. Fenech struggled to recall the details of the judgment while Azzopardi was quick to take a jibe at Fenech and remind him of such details.

11.16am: Jason Azzopardi added that the recusal of Scerri Herrera as the inquiring magistrate in the murder of Caruana Galizia was requested because circumstances were totally different and of a personal nature. We condemn in the strongest manner the light way the defence wants the presiding magistrate to abdicate her responsibility, without citing one single judgment." Azzopardi cited a judgment when a Constitutional Court, in the course of the Church Schools case, said that the test of likelihood of bias must be applied realistically.

11.15am: Prosecutor Galea Farrugia countered that of course everybody has their rights, and in that spirit there are legal grounds for recusal stipulated in our laws. The arguments mentioned have not mentioned any grounds outlined at law, he continued.

11.12am: Martin Fenech said: "My client has every right to a fair trial, and are citizens like everybody else. The argument that this court does not take decisions is untrue, because in the compilation of evidence decisions by this court on evidence heard will be taken. We are analysing the lives of three people and we must observe their rights. The request for recusal should be accepted," Fenech told the court. "When there was a magistrate who was uncomfortable to preside having been attacked, the same should apply to a court who has been praised".

11.11am: : Lawyer Martin Fenech cited court degrees of magistrates Charmaine Galea, Donatella Frendo Dimech and Consuelo Scerri Herrera where they chose to recuse themselves.

11.08am: Jason Azzopardi appearing parte civile, apart from supporting the prosecution's arguments, said that the defence's "manoeuvres" amount to nothing more than a "fishing expedition". He said that the defence is trying to pressure the magistrate to abdicate from her duties, as outlined by law, before "God and people". "The defence, in its request, was not in a position to cite one judgment from local or EU courts which support their argument as to why the magistrate should be recused. The fact that the defence is pushing that justice must be seen to be done within a vacuum lends no credibility to the request." Azzopardi invited the court to continue hearing the compilation of evidence, stressing that it is not this court who will find a guilty plea or not, but merely oversees the hearing of evidence.

11.06am: Prosecutor Galea Farrugia questioned whether the Maltese population is seeing justice be served, and that he saw the article in question mentioning the magistrate's husband resignation. "The article speaks of facts, and neither you nor your husband have a direct interest in the case."

11.02am: Prosecutor Galea Farrugia said that this week, a procedure allowing for recusal that has been in place for 160 years has now been debased to ridiculous levels. "Their only aim is delay, delay, delay. The idea is to see how they will get out of these criminal proceedings. Also, recusal issues are outlined on article 368 of our criminal code, with the parameters clearly outlined." Galea Farrugia proceeded to recite the parameters outlined by the law.

11.01am: Defence lawyers continued to argue in favour of recusal, while Stafrace Zammit stressed that order must be maintained in the court.

11am:  Stafrace Zammit said that the victim sought to highlight issues and that as far as she knows, there was one article in which her husband was mentioned after he resigned as the head of then- MEPA

10.58am: Stafrace Zammit said that she did not find anything when googling her name. Lawyer Martin Fenech formally asked for the magistrate's recusal.

10.57am: Martin Fenech, for the third hearing on the case, repeated that justice must be seen to be done as well as done. Asked on the basis of what, he said the victim has praised the magistrate's husband, the same reasons for the recusal behind the magistrate of Charmaine Galea therefore apply.

10.56am: Prosecutor Philip Galea Farrugia declared to be confused, and asked the prosecution to declare once and for all whether they will be asking for recusal, before moving on to other requests.

10.55am:  William Cuschieri said that a Google search on the case yesterday yielded criticism on the magistrate, today the same search shows you praise. 

10.53am: Lawyer William Cuschieri cited European judgments on judicial independence when faced with high public scrutiny and pressure. He referred to the aforementioned book, and explained that mounting pressure on the judiciary has caused concern.

10.50am: Lawyers Martin Fenech and Marc Sant also backed the request. William Cuschieri made reference to a book entitled 'Judicial Independence'. Stafrace Zammit questioned that if the request was so important, it should have been ready by the time the court hearing began.

10.49am: Lawyer William Cuschieri read out a verbal statement asking for his request to be referred to the Constitutional court to determine whether the way the magistrates have been chosen goes against his client's right to a fair trial. 

10.44am: Stafrace Zammit questions what will happen in the meantime, and reminded Cuschieri of the time constraints associated with the case.

10.41am: Lawyer William Cuschieri outlined how the first magistrate presiding over the case was chosen by lot, while the rest were chosen by the Chief Justice. He also highlighted the PM's comments on his confidence that the chief justice would not allow the case to be lost on a technicality. He referenced public scrutiny and media articles and questioned whether this calls into question the court's independence. He said there is doubt on how the chief justice has chosen magistrates and has questioned whether it is in line with the Constitution, and whether the pressure mounted surrounding the case has resulted in the choice of magistrates not being an independent process. "How, within the exercise of our rules and the chief justice's powers, how does he choose that it is magistrate A or B, and whether this exercise impinges on the court's independence from any external influence?"

10.39am: Legal Aid Martin Fenech asked the magistrate if she has any preoccupation with presiding over the case like her colleagues had. Stafrace Zammit quipped that the only preoccupation she has is the case taking place close to Christmas time.

10.38am: Legal aid Benjamin Valenzia has been replaced by lawyer Marc Sant as head of legal team assisting George Degiorgio. Legal Aid Martin Fenech continues to defence Vince Muscat.

10.37am: Benjamin Valenzia announced he is unable to continue representing George Degiorgio due to a possible conflict of interest.

10.35am: Court informed that Dr Francine Abela no longer representing Alfred Degiorgio. William Cuschieri and Martha Muscat have taken over her place.

10.34am: Magistrate Stafrace Zammit arrived

10.33am: The accused have entered the courtroom

10.31am: Lawyer William Cuschieri has joined the defence team

Accused have not spoken a word since arraignment

Police still investigating seven men

Murder plot hatched two months before

Three suspects plead not guilty

Magistrate recuses herself from hearing case

Second magistrate recuses herself

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