Lawyers for the police on Monday continued to insist that they cannot hand Yorgen Fenech data extracted from a phone belonging to Keith Schembri as their investigations and a magisterial inquiry are still under way.
Fenech, who stands accused of complicity in the murder of Daphne Caruana Galizia, requested the phone data in a case where he is seeking the removal of Superintendent Keith Arnaud from the case. Keith Schembri, formerly chief of staff of the prime minister, was a close personal friend on Fenech.
The data was extracted from two mobile phones seized during a search at Schembri’s home in September 2020 in the course of a magisterial inquiry into alleged financial crimes.
Fenech’s lawyers argue that although the data does not come from the device that allegedly went offline shortly before Schembri’s arrest late in 2019, it was nonetheless “essential” to their case.
Police Commissioner Angelo Gafa’ is objecting, arguing that the data forms part of an ongoing inquiry and is therefore confidential.
The First Hall, Civil Court, presided over by Mr Justice Lawrence Mintoff, had ruled in favour of Fenech's lawyers, ordering the police commissioner to hand over a copy of that phone data. At the time, the State Advocate had informed the judge that the police commissioner would abide by the court’s order, although it was to be pointed out that disclosure of the data could prejudice ongoing investigations.
However at the next sitting in December, another lawyer from the State Advocate’s office told the court that the commissioner had had a change of heart and intended to file an appeal against the decision granting Fenech access to Schembri’s phone.
That change of heart by the police commissioner saw Mr Justice Mintoff slap the State Advocate with a €500 fine for having lacked the “courtesy” of informing him about the commissioner’s appeal, deeming such behaviour as being in contempt of court.
That decision prompted a separate appeal by State Advocate Chris Soler who described it as “very unfair.”
On Monday the parallel appeals were heard at the same sitting before Chief Justice Mark Chetcuti and Justices Giannino Caruana Demajo and Anthony Ellul.
An official notice for immediate payment of the penalty was received by Soler on the same day it was handed down by Judge Mintoff, the State Advocate himself informed the court on Monday.
He had nothing to add to his appeal application which was exhaustive enough, Soler said.
His case was adjourned to next month for judgment.
As for the police commissioner’s appeal, lawyer Maurizio Cordina from the State Advocate’s office insisted that the data requested by Fenech’s lawyers was confidential and privileged.
The accessibility of documents relative to criminal proceedings was at the absolute discretion of the Attorney General and moreover the magisterial inquiry was still ongoing.
Investigations by the magistrate as well as by the police commissioner were still underway and presenting such phone data in these proceedings could cause prejudice.
Besides, what relevance did such phone data have to Fenech’s case, questioned Cordina.
“Did the defence request that data?”asked Mr Justice Ellul.
“The defence did so,” intervened Fenech’s lawyer, Charles Mercieca, prompting Cordina to point out that the request had been put to the police commissioner rather than to the magistrate handling the inquiry.
What was the position of ordinary citizen wanting access to such data forming part of a magisterial inquiry, so as to adequately prepare his defence, probed the judge further.
“It’s at the discretion of the AG,”replied the State lawyer.
“But the AG also handles the prosecution,”observed Mr Justice Ellul, seeking further clarification on this matter of principle.
In this case the magisterial inquiry concerned a third party, namely Schembri and the relevance of such data to Fenech was not yet known, insisted the State lawyer.
This has been a “four-month saga,” during which Fenech was “accused of being on a fishing expedition simply to waste time and prolong the proceedings,” rebutted Mercieca.
Judge Mintoff had deemed the issue as very important, asking why investigators had done nothing to retrieve Schembri’s allegedly missing phone and why police had not accepted the assistance offered by US authorities.
And as for the police commissioner’s change of heart about the appeal, either the State Advocate was not aware of the quasi-contractual effect of the minute he dictated in open court, renouncing to the appeal.
Or else, after that minute the State Advocate was influenced by someone to go back on his position, argued Mercieca.
That mobile phone data is very important, even in light of the principle of equality of arms, Fenech's lawyer remarked.
Moreover, if the AG has access to the case file before the inquiry was wrapped up and before the suspected person himself, then there are serious fair trial issues, Mercieca concluded.
A decision on the police commissioner’s appeal is expected in March.
Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri are counsel to Fenech.
Lawyers Maurizio Cordina and Miguel Degabriele assisted the police commissioner who was represented by deputy commissioner Alexandra Mamo in court.