Updated 4.10pm

A phone owned by Keith Schembri, held by the courts as part of the evidence in a money laundering case against him went missing for weeks, only to be found in the file of a separate case.

This is the second phone owned by the former OPM chief of staff to go missing, after another mobile of his was not found when he was arrested in November 2019 in connection with the murder of Daphne Caruana Galizia.

While in that 2019 incident, Schembri told police that he had misplaced his phone, in this most recent case the phone was lost while in the courts' possession. 

Schembri now wants this phone to be struck off as evidence in the case against him, arguing that the odd way his phone was lost and then found by the courts “was far more serious than simply bad administration". 

How Schembri's phone was lost and found

Criminal proceedings against Schembri, his father Alfio and business associates, Robert Zammit and Malcolm Scerri, were stalled for weeks, as the Attorney General was to decide whether to issue a bill of indictment or have the case decided by the Magistrates’ Court. 

Then some weeks ago, the prosecuting lawyer from the AG’s office informed Magistrate Donatella Frendo Dimech - who is presiding over the money laundering case - that Schembri’s phone, seized by police during their investigation into suspected financial crimes, was not in the case file. 

When further searches for the device proved futile, the court ordered the expert who last handled the phone to testify so that he could shed light as to the device’s whereabouts. 

But the expert said that although he had extracted data from that phone, he had no clue about the device’s location after completing his task. 

Faced with that testimony, the magistrate suspended the sitting so as “to look for the phone in her chambers”. 

Barely 20 minutes later, Schembri’s lawyers were informed that the missing phone had been traced. 

It had somehow ended up in another case file, namely the records of the criminal case against Zenith Finance directors Matthew Pace and Lorraine Falzon, Schembri’s lawyers were told. 

But the lawyers noted that the records of the Zenith case had already moved on from the magistrate’s chamber since the directors had opted to go to trial, and thus their file had been forwarded to the Criminal Court. 

Following the recovery of the ‘missing’ phone, Magistrate Frendo Dimech dictated a lengthy minute, attributing blame for the disappearance to the courts’ maladministration. 

She highlighted the "pitiful" way in which evidence was held by the courts, with evidence "spread across the floor in unsealed bags of papers" and said court workers were often reduced to buying boxes and tape out of their own pocket.

The magistrate's criticism comes just one week after the Association of the Maltese Judiciary warned that the under-resourced court system is "on the brink of collapse".

Schembri's phone cited in separate case

Shortly after that episode, an application was filed by lawyers representing “a third party” in separate criminal proceedings, asking the Criminal Court to authorise Schembri’s phone to be produced in evidence in those other proceedings.

The case is not linked to the Zenith proceedings. 

The sequence of events behind what Schembri's lawyers described as the “whole saga” of the missing phone has now prompted fresh constitutional proceedings by Schembri who claims his right to a fair hearing has been violated. 

The “coincidences” and timings after the disappearance of the phone, which was suddenly requested as “an important piece of evidence” in separate proceedings, could not but spark suspicions as to what actually happened “behind the scenes”, Schembri’s lawyers claimed. 

The fact that for weeks the phone could not be located was not only a “most serious incident” reflecting grave shortcomings in the way proceedings against Schembri were being handled, but also cast doubt upon the chain of custody of his phone. 

'Far more serious than simply bad administration'

This important piece of evidence could have been tampered with since there are doubts as to who had access to the phone during all the weeks that it went missing. It was also inexplicable how the phone was then found within minutes, they said.

In the best-case scenario, such circumstances rendered the phone inadmissible since the process was riddled with procedural defects. In the worst-case scenario, what happened hinted at “illegal and possibly criminal behaviour”, argued Schembri’s lawyers in their application filed against the Attorney General, the Police Commissioner and the Registrar Criminal Courts and Tribunals. 

Unlike what Magistrate Frendo Dimech had minuted, the lawyers feared that what actually happened “was far more serious than simply bad administration,” said the lawyers calling for the case to be heard urgently. 

They also requested the court to declare that Schembri’s rights were breached, that the chain of custody over his phone had been broken and that it was therefore inadmissible in evidence.

They sought moral damages and other measures deemed appropriate by the court.

Lawyers Edward Gatt and Mark Vassallo signed the application.