Police commissioner Angelo Gafa’ said on Tuesday that a declaration in court that he would not appeal a court’s decision to grant Yorgen Fenech access to data from Keith Schembri’s phone, was made by the State Advocate.

The police chief when testifying in constitutional proceedings filed by Fenech who is claiming that his right to a fair hearing is being breached on account of the police non-disclosure of the full evidence in investigators’ hands.

Among that evidence is data from a mobile phone seized during a police search at the home of former OPM chief of staff Keith Schembri who was targeted in money laundering investigations last year.

The phone in question is not the same device that went offline shortly before Schembri was arrested in late 2019 and which has never been retrieved since.

Fenech’s lawyers have long struggled to acquire access to that data in separate constitutional proceedings where they are seeking to get chief investigator Superintendent Keith Arnaud taken off the murder case.

But police authorities refused to hand over such data, saying that it was not relevant and formed part of an ongoing inquiry.

That was until Mr Justice Lawrence Mintoff, presiding over those proceedings, ruled in favour of Fenech and ordered the police commissioner to hand over all data extracted from Schembri’s phone to the businessman’s lawyers.

State Advocate Chris Soler had minuted in court, in the presence of deputy commissioner Alexandra Mamo and superintendent Frank A. Tabone, that the police commissioner would abide by that ruling, although he did point out that such disclosure could possibly prejudice ongoing investigations.

The commissioner subsequently filed an appeal against that court ruling, triggering a €500 fine for contempt of court against Soler for lacking the “courtesy” of informing the court about the police commissioner’s apparent change of heart.

On Tuesday, the police commissioner himself testified that that minute had been done by the State Advocate.

“But was it done on your behalf?”asked Fenech’s lawyer, Gianluca Caruana Curran.

“That was made by Soler,” insisted Gafa’, clarifying that the State Advocate’s declaration in court was not done on behalf of his deputy, Mamo, who was present at the time.

Other questions focused upon recordings of phone intercepts used by investigators when interrogating Edwin Brincat, il-Gojja, a close friend of self-confessed middleman Melvin Theuma.

Such intercepts, allegedly involving calls between Theuma and a lawyer, were done by the Security Service as the police had no power to carry out phone taps.

Gafa' said the only intercepts used by the police were those played out during the interrogation of Brincat and when requested to hand them over to Fenech’s defence, those recordings had already been returned to MSS,

Moreover, the relevant parts of those recordings were already available to the defence which had access to the audio-visual interrogation where they were played out.

“Since the intercept was played during that interrogation, then automatically the defence had access to it.”

“What if I tell you that the audio of that recording was not clear, the intercept not sufficiently clear to make out,” asked defence lawyer Charles Mercieca.

But again, the police commissioner insisted that the police could not give something that was no longer in its possession.

“Did you ask your subalterns why they were in such a hurry to give those recordings back? When they did so? Did you ask?”pressed on Caruana Curran

“I didn’t ask. They told me that it was handed back,”replied Gafa’, adding that such a question ought to be directed at the investigating officers concerned.

“Besides phone taps, did you speak to your officers about other material evidence gathered in the investigations, like mobiles, call profiles, statements, CCTVs?”asked Mercieca.

When he asked what was disclosed, Gafa’ was told that the only information not disclosed was the data extraction from Keith Schembri’s phone, the recording between Melvin Theuma and the lawyer and the intercepts.

“By the end of the compilation all requests had been met except those mentioned.” 

The case continues later this month.