The State Advocate has appealed a judge's decree for the police to hand Yorgen Fenech’s defence team all evidence extracted from a mobile phone that belonged to former chief of staff Keith Schembri.

The decision was announced in court on Thursday during a court sitting when the data was meant to be handed over, raising consternation from the defence team and earning the state advocate a €500 fine for contempt of court in view of an earlier commitment to hand over the data.

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

Yorgen Fenech is awaiting trial for complicity in the murder of journalist Daphne Caruana Galizia. Schembri was the prime minister’s chief of staff up to two years ago and was a close friend of Fenech.

The police have argued that the phone in question is not relevant to the Caruana Galizia murder case and forms part of an ongoing inquiry.

Fenech’s legal team has, however, insisted that the phone contains information that is “essential” to their case.

The phone in question is not the same phone that went offline shortly before Schembri was arrested in late 2019 in connection with the murder.

Change of heart

Last month, Mr Justice Lawrence Mintoff ruled in favour of a request by Fenech’s lawyers for all evidence extracted from Schembri’s phone by the police to be handed to them. State Advocate Chris Soler had informed the court that there would be no appeal against this decision.  

But during Thursday morning’s sitting, lawyer Miguel De Gabriele from the State Advocate’s Office said that an appeal had been filed, also on behalf of the police commissioner.

Mr Justice Mintoff temporarily suspended the hearing and ordered Chris Soler, the State Advocate himself, to attend court.

He then delivered a strongly worded decree, brushing aside the State Advocate’s apologies and explanations and pointing out that how, at the previous sitting, Soler himself, in the presence of police assistant commissioner Alexandra Mamo had minuted that the police commissioner would bind himself to exhibit a copy of all the data extracted from Schembri’s phone.

This meant that the respondents had renounced their right to appeal.

Now, when the data was meant to be presented, the court had been ‘informed’ of the appeal.

The State Advocate had not, at least, had the courtesy to inform the court about the apparent change of mind earlier, and instead had wasted the time of the court and its officials.

Mr Justice  Mintoff said such behaviour amounted to contempt of court and he fined the State Advocate €500.

Soler sought to explain and justify the apparent backtrack saying that although he had declared there would be no appeal, he was obviously bound by professional secrecy and bound to consult his client, in this case the police commissioner.

He insisted that his previous court minute had been dictated “in good faith”.  

Mr Justice Mintoff pointed out, however. that at the previous sitting on November 19 assistant commissioner Mamo herself was present in court and she had voiced no objection to the decree delivered that day and Soler’s own renouncement to appeal.

De Gabriele intervened making reference to the particular legal provision which granted the respondents the right to appeal the court’s decision.

'Manoeuvres to keep contents of Schembri's phone hidden' 

Lawyer Charles Mercieca, representing Fenech, said the court’s decision upholding the defence request for the phone data was delivered after a series of “stratagems” apparently designed so that Schembri’s phone remained hidden from Fenech and the court.

The way the State Advocate had said he would appeal, after initially saying he would not jarred with established practices and jurisprudence since a court minute was almost a ‘quasi-contract’ and the State Advocate and police commissioner knew this very well.

So they had either already been contemplating an appeal during the previous sitting or else “there was some intervention to change their minds,” Mercieca said.

“Both scenarios are worrying especially since in a state where the rule of law prevailed, the State Advocate and the Police Commissioner should have no interference.”

At the end of the day, the impartiality and integrity of investigators was under the lens in this particular case, and the defence found no comfort in the “sometimes shady behaviour of the police commissioner” so that data from Schembri’s phone remained hidden at all costs, even if this meant showing no respect for court orders, the lawyer said.

The case continues but it will now have to be the Constitutional Court to determine whether Fenech will ultimately get the requested data.

The court was also told that Keith Schembri had meanwhile filed an application to get access to his phone data too.

Mr Justice Mintoff granted parties five days to reply to the application. But those five days will only apply if the Constitutional Court confirms Judge Mintoff's decree.

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