Police have gained access to data from Keith Schembri’s mobile phone, and Yorgen Fenech’s lawyers are saying that it contains “essential” evidence supporting the businessman’s claims.
This unexpected twist is the focus of an application filed by Fenech in constitutional proceedings seeking to have lead investigator superintendent Keith Arnaud kicked off the probe into the 2017 car bomb that killed Daphne Caruana Galizia outside her Bidnija home.
On June 2, the case was put off for judgment in November at the end of a tense, three-hour-long sitting before Mr Justice Lawrence Mintoff during which Arnaud testified at length about conversations he had had with Fenech for the purpose of securing a presidential pardon.
With all proceedings having been wrapped up and judgment expected in November, Fenech’s lawyers are now claiming that a full extraction of data from the former OPM chief of staff’s mobile phone is in police hands.
Which phone?
The court application filed by Fenech’s lawyers on Monday does not specify whether the data seized by the police pertains to a phone Schembri claimed to have "lost" before he was first arrested, or to a device he obtained later.
Times of Malta had revealed that Schembri’s phone went offline shortly before he was arrested in December 2019. Investigators subsequently testified that he claimed to have “lost” it.
He was arrested once again in September 2020, this time as part of a money laundering investigation, and again in March 2021. Prosecutors have charged him with money laundering, criminal conspiracy, fraud and forgery.
In their court application, Fenech’s lawyers said that the seized data was believed to have been “lost forever” and was essential to prove their client’s claims. They argued that it was admissible as evidence, as it was not available when the evidence stage was wrapped up.
Moreover, this was not the first time that the court was recalled after being put off for judgment.
The same thing had happened when the State Advocate requested authorisation to produce fresh evidence - Arnaud’s testimony about Fenech’s pre-pardon information, which he gave as part of the compilation of evidence against Fenech.
That testimony had been given behind closed doors.
Fenech should be granted an equal opportunity, said his lawyers, pointing out that Judge Lawrence Mintoff had previously declared that the court needed “as much as possible a complete picture” to reach moral certainty before delivering judgment.
“This is no ordinary case and does not involve ordinary circumstances,” said the lawyers, noting that the case concerned persons who held the highest administrative functions.
“It’s been proved that these tampered with evidence, worked to destroy evidence and were still striving to evade justice.”
It would manifestly run counter to what is right and proper if such proof were to be omitted through some “procedural obstacle,” argued the lawyers, requesting the court to postpone judgment and instead order the police to testify, producing the requested data.
This was in the best interests of justice and in search of the truth.
Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri signed the application.