Judgment in proceedings filed by Yorgen Fenech to have lead investigator Keith Arnaud removed from the Daphne Caruana Galizia murder case was put off again on Wednesday pending the findings of a magisterial inquiry involving a phone used by Keith Schembri, the prime minister's former chief of staff.
Fenech, who stands accused of complicity in the murder, wants police superintendent Arnaud removed from the case for allegedly passing information about the investigation to Keith Schembri, the man Fenech alleges was behind Caruana Galizia’s assassination.
Wednesday's decision was delivered by Mr Justice Lawrence Mintoff after the Police Commissioner earlier this month refused to produce data extracted from the mobile phone, saying it was subject to an ongoing magisterial inquiry that is secret and confidential in terms of law and cannot be produced in evidence. He asked the judge to revoke the order to have that data produced as evidence in the constitutional proceedings.
The court rejected the request, deciding instead to put off judgment until the magisterial inquiry is wrapped up.
During the proceedings, the commissioner said that the device was not the same one allegedly ‘lost’ and never retrieved by police.
Mr Justice Mintoff said that if the data in police possession was truly not from Schembri’s ‘lost’ phone and not relevant to Fenech’s current case, then there was no reason for the Commissioner not to confirm this on oath.
But the commissioner said that since extraction of data was still ongoing, he was not in a position to state that there was no other data relevant to the murder investigation.
The court said that given that this case pivoted upon Fenech’s claim that his right to a fair hearing was breached particularly in view of whether police investigations were handled in an independent and impartial manner, all evidence in hand should be put forward by the commissioner.
Any procedural obstacles may be overcome by seeking authorisation from the inquiring magistrate, went on the judge.
Meanwhile, the court had no option but to postpone for a third time delivering judgment, calling a hearing later this month to map the way forward.
Mr Justice Mintoff said the court did not wish to deliver a judgment which, in light of evidence emerging before other courts in proceedings linked to the murder case, would be “clearly incorrect or defective,”
The court wanted to have as complete a picture as possible for the purpose of reaching moral certainty and for the administration of justice, Mr Justice Mintoff said.
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