The mobile phone owned by former OPM chief of staff Keith Schembri was always in safe keeping at the court’s exhibits office, a magistrate said Friday.

Lawyers for former OPM chief of staff Keith Schembri filed constitutional proceedings on Monday, claiming that his right to a fair hearing had been breached and requesting the removal from evidence in his money laundering case of a mobile phone that had disappeared for several weeks before turning up amongst the exhibits in a separate case.

A day later, they claimed that bringing forward his money laundering case by 10 days to Friday (today) could be prejudicial. On Thursday, a judge rejected Schembri’s attempt to prevent a sitting in the compilation of evidence against him from being held Friday (today).

Addressing the court on Friday, Magistrate Donatella Frendo Dimech said that all electronic equipment seized by police under the authorisation of the inquiring magistrate had been examined by forensic digital expert Martin Bajada. 

Bajada had presented a full copy of the data extracted from the devices, consisting of four terabytes of evidence recorded on a hard drive. 

That data and the expert’s report were presented in court during a sitting in January and a copy was handed over to Schembri.

All the electronic equipment, including Schembri’s phones, was produced in evidence on 31 July, 2023. Frendo Dimech put emphasis on the use of the plural, indicating that there was more than one phone belonging to Schembri which had been seized in connection with the financial crimes investigation. 

On 3 August, the Magistrate’s deputy registrar handed over those devices to the courts’ exhibits officer for safekeeping and they “remained in the possession and exclusive uninterrupted custody” of that officer. The magistrate said that the chain of custody could be “easily verified”. 

The issue over the ‘missing’ phone that surfaced after the sitting of October 11, concerned other, unrelated equipment that was exhibited in the case against Zenith directors Matthew Pace and Lorraine Falzon, the Magistrate said.

But on Friday, Frendo Dimech said the equipment in the Zenith case was identified by a different exhibit number and had been in the records of those separate proceedings which had been forwarded to the Criminal Court in April.

She said that those exhibits had never been returned to this court and that fact could also easily be confirmed. 

Data from those devices had been lifted by another court expert and produced as evidence in the case against Schembri, his father and two business associates. 

That expert was ordered to attend the next sitting to testify since he was the one who went to the exhibits room to identify the devices which the AG had requested in evidence in Schembri’s case. 

After the explanation, defence lawyer Mark Vassallo pointed out that Friday’s hearing had been “irregularly” called by the court.

In terms of article 401(3)(a) the sitting could not have been set before one month following the previous session and that month lapsed on Saturday. 

“So today’s sitting could not take place,” said Vassallo, adding that the defence simply wanted to record that observation in the acts of the case. 

Attorney General lawyer Antoine Agius Bonnici argued that sittings were sometimes called before the four-week time limit.

“It is for the court to decide when to appoint a hearing and the AG follows court orders.” 

AG lawyer Antoine Agius Bonnici prosecuted. 

Lawyers Edward Gatt and Mark Vassallo are defence counsel.