Silvio Grixti and associates to be indicted over benefits racket

A court has decreed that there is sufficient evidence to indict five men accused of organising a benefit fraud racket, rejecting their lawyers' attempts to raise doubts about legal controls over how court experts examine evidence.

The compilation of evidence against Grixti and alleged co-conspirators Roger Agius, Emmanuel Spagnol, Dustin Caruana, and Luke Saliba, continued before magistrate Rachel Montebello on Tuesday, with submissions being made about the prosecution’s request that the court appoint an expert to extract and preserve the data on Grixti’s seized laptop.

Grixti’s lawyer, Franco Debono, objected to the request and asked for the evidence to be expunged, arguing that Maltese law lagged behind on the issue of evidence protection.

“My client is a doctor. He has a lot of data belonging to other patients who are not involved in the case in his possession…When extracted data is being examined, this data will also be seen by the court expert. Why should this be allowed to happen?” he told the court.

The situation also gave rise to data protection issues, said the lawyer, suggesting that in other cases, additional persons had been appointed to supervise extractions. “We have full trust in the experts usually appointed,” the lawyer said. “We are not talking about them but the inadequate legal structure we have in place.”

“The expert will have to physically handle the laptop to examine it. Where will this examination take place? Will it be supervised, will there be cameras? What trail will be there? These are sensitive matters, especially when you have a doctor who has information on many medical and intimate issues. What safeguards are in place? How will the extraction take place?”

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The lawyer questioned the chain of custody process relating to evidence in criminal proceedings and asked what would happen to the data that ended up in the expert’s possession.

Debono said that several witnesses had testified that when Grixti’s laptop was seized, it had been placed inside a sealed paper envelope but had been transferred to an evidence bag at a later stage. “We don’t know how it ended up in an evidence bag.”

The issue of safeguarding confidential data on exhibits was a very important one which deserved proper scrutiny, Debono told the court, suggesting that an official body be set up to carry out “continuous accreditation of experts appointed in court proceedings.”

Laptop data already extracted and exhibited, to no objection, prosecution say

Making the prosecution’s counter arguments, prosecutor Abigail Caruana Vella pointed out that the data extracted is already part of the acts of the case, having been exhibited by the police Cybercrime Unit.

The defence had not complained about this practice at the time.

Caruana Vella questioned the real reason for the defence raising the issue at this point. In previous sittings Debono had raised the issue that no magisterial inquiry had taken place, she said. “So, the fact that once an expert is appointed, the defence starts to complain about him raises many questions.”

The Criminal Court has consistently denied objections to evidence made on the grounds of the accreditation or otherwise of the experts examining it. “The compilation of evidence is not here to decide on admissibility of evidence, which is usually examined by the superior courts. There is no legal basis for the defence’s objections.”

In his reply, Debono pointed out that the extraction had been carried out by the police, asking whether it was wise to have one of the parties to the case handle the process. “There was a time when fingerprints used to be collected and examined by the police. What happened? The right to legal assistance during interrogation was also not in the law in the past… this is why the law evolves, it doesn’t remain stuck in time.”

“I have no reservations about the integrity of the officials involved, but is it a desirable situation?” he told the court. “In the information age, the defence must ask whether the data is regulated by law and handled with fitting sensitivity?” The court cannot allow a situation where rights are potentially broken. It is the shield for the defendant’s right to a fair trial.

“Unfortunately, in this country you have to wear out your voice saying the same thing before they realise that you were right,” he said.   

The court, having heard the defence’s long-winded objections to the request for the laptop to be examined by a court expert, upheld it, emphasising the fact that the court’s primary role at this stage was to collect and preserve all the evidence. The laptop was important material evidence to the case and the assistance of an expert is required to extract it, said the magistrate.

The court, however, added that there would be a time window in which the prosecution would have to identify the relevant data from the extraction. It also prohibited the sharing or disclosure of the data in question by either the parties or their lawyers, unless otherwise directed by the court.

The expert will also be required to explain to the court what privacy safeguards are in place, the methods that would be employed to extract the data, as well as the place where the extraction will be carried out. The court also ordered that the entire extraction process should be recorded on video from beginning to end.

In spite of these unprecedented strictures, Debono dictated a note stating that the method which had been outlined by the court could lead to a breach of Grixti’s fundamental fair hearing rights and reserved the right to file “opportune proceedings.”

Debono said that the court’s prohibition of sharing the data had not been made in other proceedings “and showed that these systems were not being effective.”

The magistrate clarified that the intention behind this prohibition was data protection and was not about leaks, but said that it might kill two birds with one stone.

The court declared there was sufficient prima facie evidence for the defendants to be indicted, adjourning the case to May.

Lawyers Arthur Azzopardi and Franco Debono are appearing for Grixti. Lawyers Michael Sciriha, Lucio Sciriha and Roberto Spiteri are appearing for Caruana and Spagnol. Lawyers Jason Azzopardi and Kris Busietta are assisting Agius, while lawyers Josè Herrera and Matthew Xuereb are counsel to Saliba.

Prosecutors Abigail Caruana Vella and Charmaine Abdilla from the Attorney General's office are prosecuting, together with Inspectors Andy Rotin, Wayne Borg and Shaun Friggieri.

Lawyer Anita Giordimaina is representing the Department of Social Security.