A judge has upheld a request by Keith Schembri’s lawyers to conduct a visit to the court’s exhibits office on Friday afternoon to document whether the phone at the centre of an ongoing saga was as a court expert had left it. 

This was the outcome of an early morning hearing in proceedings where Schembri’s lawyers are claiming the phone had gone ‘missing’ for months after being presented in evidence in proceedings where he stands accused of money laundering and other financial crimes. 

They are claiming that Schembri’s rights were breached through the court’s failure to safeguard the phone which is a crucial piece of evidence, casting doubt as to whether it could have been tampered with. 

While those constitutional proceedings continue, the Criminal Court presiding over Yorgen Fenech’s murder case ordered the same expert to produce a copy of data extracted from Schembri’s phone in that case, as requested by Fenech’s lawyers. 

But that order triggered a reaction by Schembri’s lawyers who flagged the matter to Mr Justice Mark Simiana, presiding over the constitutional case.

Judge Simiana issued a ban, declaring that Schembri’s phone was not to be touched by anyone until further directions by the court and scheduled an urgent hearing for Friday, summoning court expert lawyer Martin Bajada, for further clarification on the issue. 

Schembri’s phone, other devices sealed in Lidl box 

Bajada’s testimony shed some light on the matter.

He explained that when the iPhone and other electronic equipment were originally handed to him by the police who had seized them during searches targeting Schembri, he had placed all devices - except for a bulky desktop - in a Lidl box. 

Each device was inside an evidence bag, duly numbered, and the box was then wrapped in sealing tape.

But when he returned to the exhibits room to carry out the brief given to him by the Criminal Court, presided over by Madam Justice Edwina Grima, he found the exhibits in different circumstances.

The desktop and box were placed together in a recycling bag. 

Noticing the difference, Bajada did not touch anything and informed the exhibits officer. 

He then went to the registrar of the Criminal Courts and asked him to go back to the evidence room together. 

He informed the Criminal Court, emphasising that “he saw nothing irregular” at that stage, but “only for transparency’s sake” sought authorisation to photograph the exhibits before carrying out the assigned task.

But Bajada did not even get that far. 

The minute he was notified about the ban issued by Judge Simiana, he stopped there, awaiting further instructions from the courts. 

Asked by Schembri’s lawyers, Bajada said that he had only assessed the situation “visually”, confirming that he had made out the desktop and box through the semi-transparent recycling bag.

But he could not tell what was inside. 

However, according to normal practice, when any exhibits are handed in at the court's exhibit room, they are duly photographed.

Bajada also clarified that with regards to Schembri’s phone, all data extracted from it had been preserved in four different magisterial inquiries. 

The requests by four different inquiring magistrates were all fully documented and Bajada himself had done all the copies. 

Asked specifically about the phone, Bajada replied, “I was not allowed to continue the exercise. So at this stage, I can only speculate. Once I carry out the exercise [set by the Criminal Court] I can tell.”

That exercise was to prepare another copy of the phone data. 

Asked by AG lawyer Maurizio Cordina whether he confirmed that the phone was presented in July in Schembri’s money laundering case, Bajada said that he could only confirm the date on his report.

“My report states otherwise,” he said, adding that he could only confirm through receipts and other documents in the case file which he did not personally have access to.

Following Bajada’s testimony, lawyer Edward Gatt requested the court to order an on-site visit so that the bag and “Lidl box” could be opened in the presence of the judge to resolve this issue before the case could continue on the merits. 

Lawyers representing the AG and the police commissioner did not object as long as the visit was carried out as soon as possible so as not to disrupt court proceedings. 

The court upheld the request after calling back the expert to check his availability and scheduled the visit for Friday at 3pm. 

Only the parties’ lawyers, Court Registrar Franklin Calleja and the judge were to attend together with the court expert to examine the exhibits at issue. 

The case continues. 

Lawyers Carina Bugeja Testa and Maurizio Cordina assisted the AG and Police Commissioner who was represented by Superintendent Ann Marie Xuereb. 

Lawyers Edward Gatt and Mark Vassallo are assisting Schembri.