Yorgen Fenech’s lawyers are claiming that two mobile phones seized from Keith Schembri last year during money laundering investigations, could reveal data linked to the former chief of staff’s other phone that allegedly went ‘missing’ at the time of Fenech’s arrest.

The issue was central to a hearing on Friday in separate proceedings filed by Fenech to have lead investigator superintendent Keith Arnaud removed from the murder case. 

Fenech’s team is arguing that Arnaud should be removed due to his alleged close ties with Schembri, who served as the former prime minister’s chief of staff. 

A court was due to rule on that request in November. But months after it scheduled that decision, Fenech’s lawyers filed a fresh application, claiming that police possessed “essential” data from Schembri’s phone that backed Fenech’s claims about Arnaud.

The police commissioner subsequently rebutted the claim as a “fishing expedition” by Fenech’s lawyers and said that the device was still subject to an ongoing magisterial inquiry. 

But the court, presided over by Mr Justice Lawrence Mintoff, put off judgment until the matter was thrashed out and all data relevant to the subject matter of the case be produced by the commissioner.

Earlier this month, Judge Mintoff decreed that the court wanted to have as complete a picture as possible for the purpose of reaching moral certainty and the proper administration of justice. 

Rather than proceed to judgment, the court re-appointed the case for hearing on Friday. 

Minutes after a three-hour-long session before the criminal court, Fenech and his defence team moved to another courtroom for another sitting before the First Hall, Civil Court.

Unclear whether all data has been extracted

A note filed by the police commissioner on Thursday did supply more information but it was still not clear whether all data had been extracted from Schembri’s phones, observed Mr Justice Mintoff. 

Given that the extraction process appeared to be ongoing, there was no guarantee that future data might not be relevant to the case, said the court. 

The commissioner had pointed out that there was nothing relevant “so far,” pointed out State Advocate Chris Soler, adding that these constitutional proceedings could not be left pending indefinitely. 

The commissioner had informed the court that two phones had been seized from Schembri on September 21, 2020 during the money laundering raids. So far, no data was relevant to the Caruana Galizia murder. 

But Fenech’s lawyers insisted that that data could be linked to the other phone Schembri had in 2019.

Fenech had personally sworn under oath that such evidence existed, argued lawyer Charles Mercieca.

“Whether that information is relevant or not is to be decided by an impartial judge.”

In light of such submissions, Mr Justice Mintoff said that evidence which one party possessed ought to be made available to the other party, pointing out that unless all evidence was produced there could be no search for truth. 

At this stage, it would be necessary for the police commissioner to indicate a timeframe for the data extraction and analysis process to be wrapped up. 

Only then would the commissioner be in a position to say whether the data is relevant or not. 

The case continues in November. 

Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca are assisting Fenech.