The Malta Independent 20 January 2022, Thursday

Court bans publication of evidence 'leaked' from Yorgen Fenech compilation of evidence

Monday, 29 November 2021, 17:25 Last update: about 3 months ago

A judge has prohibited the media from publishing evidence leaked from the judicial proceedings against Yorgen Fenech on pain of contempt of court, an offence punishable by imprisonment.

Fenech’s lawyers had filed a court application on November 1, complaining about the “uncontrollable spreading” of information and documentation found in the acts of the case on social and news media, claiming that this could create irremediable prejudice to his presumption of innocence, as well as affecting his private life and that of his family.

In a decree on the matter handed down this afternoon, Madam Justice Edwina Grima observed that the right to information was inherent in every democratic society and that the general public had the right to be informed about what was happening around them. “On the other hand, it is also the duty of every journalist to faithfully report what they see that might be in the public interest, with their message being truthful and trustworthy.”

It is in the interest of citizens in a democratic society to be informed of what is happening in all criminal proceedings before the courts, and that such proceedings are always held in open court, said the judge.

That said, noted the court, the criminal courts are entrusted with the power to order a ban on publication in the media, not only of the name of the accused, but also the entire criminal process when the interests of justice so require, that is when those interests supersede society’s right to information.

This right to information “should not translate into a right to sensationalism, intended to mislead the reader but should always serve the search for truth,” said the judge.

Fenech had alleged that chats published online by author Mark Camilleri were a reproduction of the contents of documents exhibited in the acts of the case, copies of which had been given only to the parties. The court of compilation had, with the agreement of the parties, ordered the ban on publication of their contents, bar that which emerged in testimony. Failure to abide by this rule would be taken as contempt of court, they had been informed.

The court noted with displeasure that in this case, information contained in the acts, together with documents exhibited there, were still being disseminated, in violation of various court orders.

“It appears, however that the orders being issued are not being observed, for one reason or another, including by the same accused, who attempts to use exhibited material to apparently lead this judicial process himself instead of the court, with allegations that the witnesses produced by the prosecution are not credible – something that should fall solely within the remit of the jury and the courts of justice and not the accused.”

Fenech had a right to prove his innocence, but this had to take place in the ambit of the judicial process and through no other means, said the judge. In the same way, nobody should dare use the media and social media to reveal the contents of documents found in the acts of the proceedings with the intention of subjecting the accused to a parallel, extra-judicial process, she said.

“That said, although the lawyer contends that this order was based on section 517 of the Criminal code, the Court of compilation doesn’t appear to have cited this legal disposition in its decree. In fact, from the information given by the Registrar of Courts…it does not appear that the procedure laid out in this legal disposition was followed, so that it cannot be said that the order was affixed to the edifice of the court as a notification ad omnes, which would therefore make anyone who defies that order liable to proceedings…for contempt in faciem curiae.”

In the case at hand, the court said it could not use that section of the law as there was doubt as to whether or not the person responsible for the breach had been duly notified of the court’s orders, as well as about the source of the information contained in the prohibited documents and also the identity of the person who defied the court’s order and passed the information to Camilleri. These facts can only emerge from a police investigation, said the judge.

The judge said she was of the opinion that although the court was empowered to order a ban on various aspects of the proceedings, “in this case, as it is in the interests of justice and society at large to be informed about what is happening in these criminal proceedings, and therefore in those proceedings which are held in open court, this article of the law is to be rendered applicable limitedly to the acts and documents, both printed and electronic, that are exhibited and which are not read out in open court.”

An order to this effect is to be signed by the Registrar and affixed to the entrance to the courtroom until the case is heard, said the judge.

As the case against Fenech was attracting widespread media attention, the court ruled that this order is to be published in the Government Gazette and two local newspapers by the Registrar of Courts.

The court emphasised that this order applied only to the acts and documents in the case file which had not been read or heard in open court, and that the access to them was reserved to the parties involved in the criminal case. It was underlined that no part of the acts can be passed on to third parties, by the parties or their lawyers, without the special permission of the court.

Ruling on the application, the court ordered the Commissioner of Police into investigate the possibility of a breach of the order issued by the Court of Magistrate as a Court of Compilation of Evidence on 30 November 2020 and as to whether any person could be held liable to criminal proceedings for contempt of court.

Contempt of court is punishable by a term of imprisonment of up to one month, or to a fine of up to €2,329.

The judge ordered that a notification of the decree be served on Yorgen Fenech, his defence lawyers Charles Mercieca, Gianluca Caruana Curran and Marion Camilleri, Assistant Attorney General Philip Galea Farrugia, the Commissioner of Police and Superintendent Keith Arnaud, parte civile lawyer Jason Azzopardi and the Registrar of Courts.


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