There was nothing irregular in a magistrate's decision to bring forward a money laundering case, a court ruled on Thursday, turning down claims by Keith Schembri that such a move prejudiced his rights.
This was the outcome of a first session before the First Hall, Civil Court in its constitutional jurisdiction, after lawyers for the former OPM chief-of-staff and the Attorney General’s Office clashed over a magistrate's decision to bring the case forward.
The decision to bring the case forward was taken on Monday, shortly after Schembri's lawyers claimed his right to a fair hearing was breached when his phone - seized by police during financial crimes investigations - disappeared while in the court’s possession. It was found months later with the exhibits of another case.
That, they argued, cast serious doubts upon the chain of custody of such a vital piece of evidence and consequently they wanted it struck off the evidence in the money laundering case.
That case, presided over by Magistrate Donatella Frendo Dimech, was set to continue on November 20. But on Tuesday the lawyers were informed by the Magistrate’s deputy registrar that the hearing had been brought forward to Friday, November 10.
Schembri’s lawyers filed another application, requesting the civil court to schedule an urgent hearing before Friday so as to address their concerns.
Mr Justice Mark Simiana upheld that request, with a hearing held on Thursday morning.
His lawyers argued that by rescheduling an earlier hearing and ‘sending for’ witnesses who had not been requested by the prosecution, the Magistrate was taking this matter into her own hands, deciding upon the issue which now formed the merits of the case filed before the constitutional courts.
This would interfere with and prejudice Schembri’s breach of rights claims, his lawyers argued.
They thus called upon the court, presided over by Mr Justice Simiana, to issue directions to the Magistrate to prevent that court from deciding upon circumstances concerning the ‘missing’ phone.
Lawyer Edward Gatt, who together with lawyer Mark Vassallo, is representing Schembri, gave an overview of the events leading up to this constitutional case.
He also explained that the defence had been “waiting for months” for the Attorney General to decide whether to have the money laundering case decided by the magistrate or whether to send it before the Criminal Court for trial.
The prosecution had long declared that it had no further evidence to produce and was simply going through the file to make sure that all evidence was properly and fully preserved. That was when the issue of the ‘missing’ phone surfaced.
Gatt said a somewhat strange fact took place.
When the phone was still ‘missing’ a request for that same device to be presented in evidence in separate proceedings “which have reached a very, very advanced stage,” came to light.
“That request flashed a red light.”
He said that while they (Schembri's lawyers) had no control over that device, third parties in separate proceedings “seem to know what it contains.”
Gatt, questioned how the defence could have certainty as to the phone data presented in those third party proceedings.
‘Missing’ phone found
Faced with that situation, Magistrate Frendo Dimech had postponed the money laundering hearing to “search for the phone.”
That was around 9am on October 11.
A couple of hours later, Schembri’s lawyers were told by the magistrate that she had personally found it in the room within the courts building where case exhibits were stored.
The phone had been in the file of another case relating to Matthew Pace and Lorraine Falzon, directors of Zenith Finance who are also facing money laundering proceedings.
“Was there anything in common between the two [cases]?” asked the judge.
Gatt said both stemmed from the same magisterial inquiry and the defence lawyers happened to be the same. However, in the Zenith case, since the accused had opted to face trial by jury, their case file had since moved up to the Criminal Court.
“How could the Magistrate look for an exhibit in a file that supposedly no longer fell within the jurisdiction of the Magistrates’ Courts?” said Gatt.
He observed that the Magistrate had then minuted a strongly-worded decree about the negligence in the manner whereby “the judicial process was managed” and exhibits stored, possibly prejudicing the proceedings.
The lawyer said the court’s direction was needed for them to be able to set up a valid defence in the criminal proceedings.
The next sitting of the money laundering case was meant for the AG to state how Schembri’s case was to proceed, he said.
But he had no doubt that Friday's hearing would serve to whitewash the situation, said Gatt. He therefore requested the judge to issue a direction so that the magistrate did not enter into the matter which was now for the constitutional court to decide.
“Do you know why the [criminal] case was called tomorrow?”the judge asked the parties.
But neither the defence, nor the lawyers representing the AG and the Police Commissioner could answer.
Just like Schembri’s lawyers, AG lawyer Antoine Agius Bonnici said that they had received an email from the magistrate’s deputy registrar informing them that the case had been brought forward to Friday.
“Is that normal?”asked the judge.
It was the AG’s office, as prosecution, that set the agenda for criminal proceedings, indicating the list of witnesses to be heard at each sitting and the evidence to be compiled.
But in this case, the Magistrate herself had apparently ‘sent for’ witnesses.
“In truth no one has control over the situation,” said Gatt, his statement echoed by the AG lawyer.
An administrative error
Agius Bonnici explained that the whole saga had apparently been triggered by “some administrative error.”
Electronic devices linked to separate cases could not be exhibited in their original form in all of those cases. So originals were put in one case, with copies presented in the other cases. Since there were seven cases linked to the same alleged financial crimes, the originals were exhibited in Schembri’s case.
But the prosecution lawyer could not find the relative receipt indicating in which case records the device had been exhibited.
“There was no receipt and no court minute to account for it,” said Agius Bonnici.
“This case was built on a totally wrong premise, misguiding everyone,” remarked State Advocate lawyer Maurizio Cordina.
On Thursday afternoon, the judge decreed upon the matter in chambers.
What Schembri’s lawyers were effectively requesting was an interim measure relating to Friday’s hearing before the Magistrates’ Court even if their request was not phrased in that manner, he said.
The crux of the issue was to determine whether the Magistrate had acted irregularly by bringing the hearing forward and summoning witnesses, taking an active role in the ongoing compilation of evidence.
That did not appear to be the case, observed the judge, citing article 397(1) of the Criminal Code which states that a court of criminal inquiry – like that presided over by Magistrate Frendo Dimech in Schembri’s money laundering case- was empowered to summon witnesses even when not requested by either party.
That court could issue arrest warrants and take all necessary measures to ensure that the compiled evidence is complete.
Thus that court had the power - “if not the duty” - to summon witnesses and that discretion applied to any matter related to the merits of the case, or some technical issue or even an incidental issue such as whether a particular piece of evidence was admissible or not.
Moreover, if any testimonies about the ‘missing’ phone were heard by the Magistrate, there was nothing stopping them from testifying again before the judge in this constitutional case.
The court failed to see how that could prejudice Schembri’s rights.
Besides, no decision by the criminal courts could interfere with or bind in any way a decision to be given by the constitutional courts.
Schembri failed to show how he would suffer irremediable prejudice unless granted this provisional remedy, concluded Mr Justice Simiana, thus declining to issue any direction to the Magistrate as requested.
The case will proceed on the merits.
Lawyer Carina Bugeja Testa also represented the Police Commissioner.
Lawyer Vanessa Grech assisted Criminal Courts Registrar Franklin Calleja.
Lawyers Edward Gatt and Mark Vassallo assisted Schembri.