Updated |Judge rejects Keith Schembri's objection to money laundering case hearing tomorrow

A judge has rejected Keith Schembri's attempt to prevent a sitting in the compilation of evidence against him from being held tomorrow, after the date was brought forward by the compiling magistrate. 

During an urgently convened sitting this morning, Assistant State Advocate Maurizio Cordina poured cold water on the claim that Keith Schembri’s phone “disappeared from evidence”, as the first sitting of the related constitutional case was held this morning.

“This case is built on an incorrect premise which is misleading everyone. This mobile phone is not missing,” he said.

Mr. Justice Mark Simiana issued a decree in chambers today, after hearing arguments about Schembri’s request that this case be treated with urgency.

That request came after Magistrate Donatella Frendo Dimech brought forward the date of the next sitting in the money laundering case against Schembri and others, to tomorrow, ten days earlier than previously stated. Schembri’s lawyers say the move was a reaction to his filing the constitutional proceedings, and intended to stultify them.

Schembri’s lawyers filed the case on November 6 claiming that their client’s right to a fair hearing had been breached and requesting the removal from evidence of a mobile phone that, they claim, had “disappeared for several weeks” before turning up amongst the exhibits in a separate case.

First to make submissions this morning was lawyer Edward Gatt, who is representing Schembri together with lawyer Mark Vassallo.

Gatt said that for the past weeks, they had been waiting for the Attorney General to formally declare her evidence in the money laundering proceedings closed. At that point the court of Magistrates either decides whether to pass judgement as a court of criminal judicature or to send the acts of the case to the Criminal Court through the renvoi procedure, said Gatt.

The lawyer said that after the last witnesses were heard, months ago, the Attorney General informed the court that they had “discovered an exhibit, a mobile phone, missing from the acts. As the AG had flagged that difficulty, I imagine the AG had looked for the device before filing it,” said the lawyer.

Prosecutor Antoine Agius Bonnici had told Magistrate Frendo Dimech that he was unable to close his evidence because this mobile phone could not be found.

“Faced with this declaration, the court appointed expert Keith Cutajar who had carried out the examination of the phone. He testified on 11 October and gave a timeline of what he had done with the phone and confirmed that it was no longer in his possession,” he said.

This happened around a month and a half after the AG had indicated the phone was lost, said the lawyer, adding that the phone was still not found by the time of the next sitting.

This raised concerns about chain of custody, he said.

Gatt said he had observed that in separate proceedings, a request had been filed for the exhibition of this same phone in those proceedings. “Schembri’s compilation of evidence continued and the court said search must be carried out for this phone. We did not participate in this search because we did not feel it was proper to do so.”

The sitting was postponed, not adjourned, pointed out the lawyer, telling the judge that the magistrate said she had wanted to look for the device herself.

He had then received a phone call informing him that the magistrate had found the phone herself, Gatt said, adding that he did not feel it was correct that communications about ongoing cases take place informally.

They rushed to the courtroom, where they were told by magistrate Frendo Dimech that she had gone to search for the phone herself and had found it in a case file pertaining to the case against Zenith finance directors, in which Gatt was also defence counsel. He told the judge that in the Zenith case, the defence had already opted to have it heard by the Criminal Court. “The phone should never have been found where it was and was not in the remit of the Court of Magistrates, but the Criminal Court,” said Gatt.

Judge Simiana asked whether there were any links between the two cases. There was, Gatt replied, as they emerged from the same magisterial inquiry. But telephony had nothing to do with it, insisted the lawyer.

Gatt explained that he was now, at a late stage in proceedings, faced with a dilemma as to whether he was going to build his defence on “what things are there, which aren’t there or things which have been potentially tampered with.”

“Secondly, without having control over this evidence, I have third parties in other cases who appear to know what this phone contains,” said Schembri’s lawyer, telling the court that he would also be making submissions about the chain of custody “in other fora.”

He also took issue with what he called “the attitude of the Court of Magistrates.”

“Can someone explain to me why I shouldn't have an urgent sitting when the court of Magistrates brought the case forward to be heard tomorrow?”

“I am informed as an officer of the court, that tomorrow the court sent for, not summonsed, a number of individuals for unknown reasons. We know that tomorrow a number of individuals have received emails ordering them to appear tomorrow.”

“This situation was created by the magistrate,” Gatt said. “This rescheduling took place because we filed this constitutional case.”

Accusing the magistrate of creating proceedings ad hoc to undermine Schembri’s constitutional case, Gatt insisted that tomorrow’s sitting would serve to whitewash its shortcomings, arguing that the judge had the right to hear witnesses testify about this complaint “before they receive a drubbing by the court of Magistrates.”

“The time has come that all this running around in the corridors and whispers be addressed. It should be addressed by the court doing its job. Which at this stage is to follow the requests of the AG… we cannot reduce the court to a fiefdom.”

This should not be allowed to happen, argued the lawyer, saying that the court of magistrates should have handled the issue “when it should handle it,” calling the decision to bring the hearing forward to tomorrow a knee-jerk reaction.

But in his counter-submissions, assistant State Advocate Maurizio Cordina argued that Schembri’s lawyers were manufacturing a scandal where there was none.

“There were two magisterial inquiries that preceded the criminal case,” Cordina explained. Schembri’s phone was part of the inquiry carried out by then Magistrate Josette Demicoli into electronics seized during searches carried out by the FCID in 2020. “So, the mobile phone in question was evidence in those proceedings. The extraction of the data from this phone was carried out by Dr. Martin Bajada. The other expert mentioned by the plaintiff, Keith Cutajar, had no involvement in this case.”

“This case is built on an incorrect premise which is misleading everyone. This mobile phone is not missing.”

Cordina pointed out that he had no control over the date of sittings and the decision to hold it tomorrow was the magistrate’s. “I have no idea as to the motivation.”

On the request for urgency, Cordina said that the law regulating constitutional proceedings clearly states that such cases are to be heard expediently, “but it also recognises that in less urgent cases, the defendant, at the discretion of the court, should also have 20 days to reply. In this case, the sitting was set three days after it was filed and the 20 day period was reduced to 7.”

Cordina submitted that the money laundering case against Schembri was progressing according to law. “There is no urgency. There is no risk of irreparable damage, the evidence is all preserved. We aren’t talking about a life-or-death issue, illegal arrest or extradition. These are the circumstances which justify hearing cases with urgency.”

Prosecutor Antoine Agius Bonnici explained the background to the judge.

“There are seven cases dealing with the same merits about crimes which happened a few years ago. Two inquiries had been appointed. There were two exhibits, one with electronics. These have to be exhibited in all cases, so what has to be done in practice is to exhibit copies created by the court.”

The original phone was exhibited in the case against Alfio Schembri and others, which is going to continue tomorrow. “You cannot exhibit a phone seven times,” Agius Bonnici explained, arguing that whether the electronics exhibited in that case are the originals or the court-sanctioned copies was irrelevant.”

The lawyer explained what he said, had actually happened in that sitting. “The situation was that I looked through the 25 volumes of the case and could not find information about which case an exhibit from Magistrate Josette Demicoli’s inquiry had been exhibited in. But they [the devices] were already exhibited, we were looking for a piece of paper. It was an administrative shortcoming.”

The expert in question was Martin Bajada, Agius Bonnici went on. As an expert, he is required to exhibit a report explaining what he did, together with a hard disk containing the data extracted from the devices and the devices themselves. “These are only exhibited once.

“What went missing was the court’s verbal note stating in which case file it was exhibited.”

Lawyer Vanessa Grech, representing the registrar of Criminal Courts and Tribunals Franklin Calleja, clarified that “there was no administrative mistake, because Keith Cutajar had exhibited the receipt for the devices in the [Zenith] case against Lorraine Falzon [and Matthew Pace.]”

Gatt asked the judge to provide direction to the parties, “because neither the defence nor the prosecution knew what tomorrow’s sitting is about.”

“The criminal process should hear what it should hear, not that which it should not” Gatt said, telling the judge that everything had been done in reaction to the sitting dates given by his court.

“This is not a case where there are many witnesses. It is one where you have to understand things. If Keith Cutajar was not the expert who carried out the extraction, why did the court now appoint him? I have to point this out, I cannot just sit on my hands and let this slide,” Gatt said.

Cordina submitted that what the other side was requesting was not clear. The judge, too, needed Gatt to clarify.

“You are asking me to issue a decree, telling the compiling court to follow the law?” Gatt replied that he was not, adding that “although sometimes you need to state the obvious.”

The judge adjourned the case for an examination of the defendants’ reply to November 20.

Registrar of Courts also refutes Schembri's claim

In a written reply filed in court before this morning’s sitting, Grech said that it was not true that the exhibit, that is Keith Schembri’s mobile phone, had been lost, misplaced or displaced from the court’s strongroom where it was originally deposited. 

Furthermore, she explained, court expert Keith Cutajar had only exhibited the data extracted from a number of devices -which did not in any case include Keith Schembri’s-  together with his report on said data. Subsequently, on October 11, Magistrate Frendo Dimech’s deputy registrar had formally, not physically, exhibited the devices in the Zenith money laundering case. Keith Schembri’s mobile phone was exhibited in separate criminal proceedings against him and had been examined by court expert Martin Bajada. Bajada had since tendered his report together with a hard drive containing the extracted data to magistrate, now judge, Josette Demicoli.  Grech said that the claim of the phone’s disappearance had been investigated, which had confirmed that the exhibits examined by Bajada, including Schembri’s phone, had not left the strongroom, which is monitored by several CCTV cameras and to which access is strictly limited, since the day they were put there.

With reference to the magistrate’s criticism of the state in which the exhibits were stored, Grech stressed that although the exhibits had not been placed on shelves due to their sheer number, they were “all catalogued and easily traceable.”

Judge denies Schembri's requests.

In two decrees handed down this afternoon, Mr. Justice Mark Simiana said he could not see how the disappearance or reappearance of the phone could prejudice Schembri's rights, because there was nothing stopping the experts from testifying again in the criminal proceedings, and pointing out that no evaluation of evidence takes place during the compilation stage anyway. 

Although Schembri had alluded to the possibility that some witnesses, that he didn't appear to know the identity of, could change their testimony, he had not explained why this would happen, nor how if prevented from testifying in the compilation of evidence, this same fear would not be realised.

Assistant State Advocate Maurizio Cordina and lawyer Karina Bugeja Testa from the Office of the State Advocate assisted the Commissioner of Police, who was represented by Superintendent Annemarie Xuereb and Inspector Jurgen Vella.

The Office of the Attorney General was represented by lawyer Antoine Agius.

Lawyers Edward Gatt and Mark Vassallo assisted Keith Schembri.