A court expert summoned to explain where and how he found a phone belonging to Keith Schembri within the law courts’ exhibit rooms emphasized on Monday that he did not check whether individual evidence bags were sealed.

Digital forensic expert Keith Cutajar said it took him around 30 minutes to locate "what could not be found" but also specified that he could not say whether the various evidence bags pertaining to that case file had been sealed, as he had not checked that.  

Cutajar was called to testify by Magistrate Donatella Frendo Dimech, after her declaration that that Schembri’s confiscated phone had temporarily been lost while in the court’s possession prompted a legal furore.

Schembri’s lawyers have claimed that the phone's disappearance meant his fundamental rights were breached, as the phone could have been tampered with while missing. They have filed separate constitutional proceedings concerning that claimed breach of rights.  

The phone in question is a different one to that which Schembri lost hours before he was first arrested in 2019 and was seized in March 2021 as part of criminal proceedings against Zenith Finance directors Lorraine Falzon and Matthew Pace related to money laundering and corruption.

Prosecutors allege that the two helped Schembri – a chief of staff to former prime minister Joseph Muscat - launder money.

Phone exhibit was not minuted in court 

Schembri’s missing phone was found with exhibits of another case.

Testifying on Monday, Cutajar explained that he had initially presented a report and the exhibits seized in the case against Falzon and Pace, six months after Schembri's phone was first seized.

However, due to some “shortcoming,” that day it was not minuted in the court records that the devices themselves had also been exhibited that day.

“So you found them downstairs?”asked Magistrate Frendo Dimech, cutting the expert’s account short.

“I was instructed to go to look for them,” said Cutajar.

“Was I or my deputy registrar there with you?” asked the court, going straight to the point as it sought to dispel any misconceptions linked to the episode.

“No, downstairs no,” said Cutajar, explaining further how he had proceeded to the exhibits room in the courts’ basement after looking for the ‘missing’ device in the Magistrate’s chambers and also in the office of her deputy registrar.

“All was in order there [in chambers].”

Mouldy paper bag

Since the exhibit room is kept under lock and key by the relative court authorities, the expert had sought the two exhibit officers who accompanied him to the room where all exhibits are stored.

“I basically found the original bag,” said Cutajar, remarking that that “paper bag” had somewhat changed in appearance “due to mould.”

“But I don’t think that the bag was changed.”

Inside that bag, marked by a specific exhibit number, there were a number of other evidence bags containing electronic devices, including laptops, CDs and mobile phones.

Asked who those devices belonged to, the expert said that they formed part of the exhibits seized under the order of the inquiring magistrate.

But he was not the one who had seized them in the first place, he noted. The devices were given to him by those who seized them, along with the relative evidence forms.

Cutajar told the court he took a photo of the discovery in the exhibits room and sent Magistrate Frendo Dimech’s deputy an official email, including the photo.

That email was presented in court on Monday. Cutajar said he sent it on October 11 at 9.33am.

Asked how long he had been in the exhibit room, Cutajar estimated that the search took “half an hour or three-quarters of an hour.”

He explained further that he had not “rummaged” through the contents of that bag.

“I didn’t check the seals on the individual evidence bags, but I imagine that they are sealed. But I cannot say,” he clarified. “I documented the generic situation.”

Following his testimony, Schembri’s lawyer, Mark Vassallo, requested an “urgent transcript” of the expert’s testimony.

His request was upheld by the court.

The case continues in December.

AG lawyer Antione Agius Bonnici and Inspector Joseph Xerri prosecuted.

Lawyers Edward Gatt and Mark Vassallo are defence counsel.