The Malta Independent 18 October 2021, Monday

References to unauthorised phone taps expunged from Degiorgio brothers' trial by appeals court

Wednesday, 22 September 2021, 14:40 Last update: about 26 days ago

The Court of Criminal Appeal has partially upheld an appeal filed by brothers George and Alfred Degiorgio against the rejection of their preliminary pleas to the bill of indictment filed against them.

The men are indicted for committing the murder of journalist Daphne Caruana Galizia, who was killed in a car bombing outside her home in October 2017.

The Degiorgio brothers’ lawyer William Cuschieri had made over 100 arguments before the criminal court, contending, amongst other things, that the lead investigator’s evidence was based on conjecture and speculation about things not exhibited in the acts of the case and that the men’s mobile phone data had been collected under a law that had since been superseded and declared null under EU law.

The accused had requested the court expunge from the records of the case parts of Superintendent Keith Arnaud’s testimony referring to certain Security Service phone intercepts and any resulting evidence. No warrant authorising these intercepts had been exhibited, argued their lawyer.

In a mammoth 209-page judgment, the court of Criminal Appeal presided by Chief Justice Mark Chetcuti, together with Judges Joseph R. Micallef and Giovanni Grixti, noted that with regards to the intercepts, the Criminal Court had taken note of this and that it was declared and not contested by the appellants or the AG that there was no warrant authorising them. What was in issue was the legality of the intercepts and the evidence directly connected to them.

“It is very clear that that which the inspector testified means that George Degiorgio’s mobile phone was under observation from before the explosion [which killed Daphne Caruana Galizia]. The inferences which can be drawn from these depositions are many, but apart from this, once the warrant authorising the intercepts can no longer be exhibited, much less can the alleged recording testified by the inspector, so why should the court permit that such declaration be made before the jurors?”

The judges went on: “The jury would be faced with a declaration by the inspector that he had heard a recording in which he recognised George Degiorgio’s’ voice without saying who had passed on the recording to him and whether it had been made legally…”

The court therefore partially upheld this ground of appeal and ordered the expungement of the relevant part of Keith Arnaud’s testimony, adding that Arnaud is not to make any reference to telephone tapping and related recordings to the jury.

It, however, did not agree with the request to expunge any evidence sourced from the information given to Arnaud by the Security Services.

If the investigator used anonymous information and his investigation showed the information to be true, the evidence discovered is admissible and subject to cross-examination by the accused, ruled the judges.

If the prosecution did not wish to substantiate the allegations of intercepts by failing to exhibit the warrant authorising them, this did not mean that they did not exist, because it could mean that it did so including for reasons of national security. The responsibility for this was to be borne by the prosecution, said the court.

The court, therefore, authorised the expunging of the reference to the intercepts in Arnaud’s testimony but said that this order did not extend to the resulting evidence. The rest of the judgment was confirmed.

 Lawyer William Cuschieri is appearing on behalf of the defendants.

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