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maltatoday | SUNDAY • 13 SEPTEMBER 2026 YORGEN FENECH TRIAL AFTERMATH €150,000 in cash, from which he paid Degiorgio the €30,000 deposit. The alleged payment therefore had its own significance under Article 42. Prosecutors relied on it as further evidence that Fenech had allegedly procured and financed the offence. Theuma remained unequivocal about who he believed had commis- sioned the murder, insisting during his testimony that there had been only one mastermind and maintain- ing that it was Fenech. That made his credibility crucial. Under cross-examination, defence lawyer Giannella de Marco returned to Theuma's account of the alleged Blue Elephant meeting and ques- tioned him on the circumstances surrounding the day he said Fenech first approached him about the mur- der. Theuma maintained his account. The legal provision may have been straightforward on paper. The ev- idential question was not. Could jurors safely accept Theuma's ac- count? And, together with the other evidence presented by the prosecu- tion, was it enough to prove beyond reasonable doubt that Fenech had crossed the line from knowledge or association into criminal complicity? Article 43: The accomplice and the principal Article 43 is considerably shorter, but its effect is significant. "Unless otherwise provided by law, an ac- complice in a crime shall be liable to the punishment established for the principal." In other words, the fact that an ac- cused did not physically execute a crime does not, by itself, mean that his criminal responsibility or pun- ishment must necessarily be lesser. If complicity is established under Ar- ticle 42, Article 43 generally exposes the accomplice to the same punish- ment as the principal offender. Applied to the first charge against Fenech, the interaction between the three provisions can therefore be reduced to a relatively simple legal chain. The real battle at trial was there- fore over the bridge created by Arti- cle 42—whether the prosecution had proved beyond reasonable doubt that Fenech's own conduct and intention brought him within one of the forms of complicity recognised by law. Article 48A: When an agreement itself becomes a crime The second charge related to con- spiracy requires a different exercise. Article 48A provides that a person who conspires with one or more peo- ple, in Malta or abroad, for the pur- pose of committing in Malta a crime punishable by imprisonment is guilty of conspiracy to commit that offence. But the provision contains an im- portant detail. The conspiracy exists from the moment a mode of action is agreed between the people conspir- ing. This means the focus shifts. Under Article 42, the question was what Fenech allegedly did to render himself an accomplice to the homi- cide. Under Article 48A, the focus was on whether the prosecution had established an agreement with at least one other person, accompanied by the shared criminal intention and a plan to commit the offence. Judge Grima put the distinction to jurors during her directions. For the offence to exist, she explained, there had to be an agreement be- tween two or more people driven by a shared criminal intent. The offence is complete when that agreement is reached, irrespective of how far its eventual execution progresses, but the agreement must concern a con- crete and possible plan. The prosecution alleged that such an agreement began with the same chain of events which underpinned the complicity charge—Fenech al- legedly instructed Theuma to find someone to kill Caruana Galizia; Theuma approached Alfred Degior- gio; a price of €150,000 was estab- lished; and, according to the prose- cution case, Fenech agreed to it and provided the money. The same evidence could therefore carry different legal significance de- pending on which charge the jury was considering. The alleged Blue Elephant conver- sation could be relied upon under Ar- ticle 42 as evidence of an instruction or instigation to procure the murder. Under Article 48A, conversations and subsequent conduct could in- stead form part of the prosecution's attempt to prove that an agreement and shared criminal design existed. But a conversation, by itself, is not synonymous with conspiracy. The legal significance lies in what was al- legedly agreed and whether the evi- dence proved the meeting of minds and concrete criminal plan required by Article 48A. That distinction is crucial. Com- plicity and conspiracy arose from the same alleged murder plot, but they were separate offences with separate legal ingredients. The jury therefore had to consider each charge on its own terms. When legal theories meet evidence On paper, the exercise to prove complicity and conspiracy can ap- pear relatively straightforward; iden- tify what the law requires, apply the facts, and determine whether each ingredient is present. The Fenech trial showed how dif- ferent that exercise becomes inside a courtroom. Article 42 may set out the ways in which a person can become an ac- complice, but the provision could not tell the jurors whether they should believe Theuma's account of the Blue Elephant meeting, what sig- nificance they should attach to the alleged €150,000 payment, or what inferences could safely be drawn from the recordings and the other evidence they heard. The same applied to conspiracy. Article 48A could tell them what constitutes the offence, but it re- mained for the prosecution to prove that the actual agreement required by law had actually existed. After almost two months of ev- idence and around eight hours of deliberation, the jury returned the same result on both charges—eight votes to one for acquittal. We cannot know which witnesses the jurors believed, which pieces of evidence they rejected, or precisely where they found reasonable doubt. A jury does not give reasons for its verdict. The law provides the ingredients. The courtroom decides whether the evidence satisfies them. and the evidence test in court Yorgen Fenech takes the witness stand to testify in his own trial (Sketch: Anna Calleja)