Judge visits the property room

February 2nd, 2024

A court- appointed IT expert has confirmed, during a site visit at the courts of justice's evidence strongroom, that a mobile phone belonging to former OPM Chief of Staff Keith Schembri was in the same state that he had left it in, when he had originally examined it.

Mr. Justice Mark Simiana visited the court evidence strongroom this afternoon, together with lawyers for Schembri and the court administration, at the request of the parties, in a bid to comprehensively settle doubts raised about the chain of custody of the former Chief of Staff's mobile phone.

The judge dictated a note in the acts of the proceedings, after the visit was carried out, giving a description of what had taken place.
He had found that the exhibits were indeed found to be wrapped in a grey plastic bag, which in places, was itself wrapped in tape. The Registrar of the Criminal Court, Franklin Calleja, explained to the judge that an exhibits officer had placed the items in the bag in order to keep them together.

Bajada retrieved Schembri's mobile phone from a box, which had been sealed in an evidence bag and confirmed that the evidence bag was the original one, was still sealed and was in the state in which he had left it.

He explained to the judge that in order to carry out the tasks he had been appointed to do, he had opened the evidence bag in question from the bottom side of the bag, taken out the phone, extracted the data it contained onto a hard drive, and put the phone back, re-sealing the same evidence bag using heat-sealing apparatus.

The judge, in view of the findings of the on-site inspection, revoked his earlier order which prohibited anyone from accessing the evidence.

Earlier

Mr. Justice Mark Simiana, who is presiding over the constitutional proceedings, upheld a request for an in-person site inspection, decreeing that the visit be conducted today. Only the lawyers to the parties, the Registrar of Courts and court expert Martin Bajada will be allowed to be present for the inspection, during which the bag and box that currently hold the exhibits will be opened in the presence of the judge.

Earlier this morning, court expert Martin Bajada, who yesterday testified to having found the exhibits stored differently to the way he had left it, during the compilation of evidence against Yorgen Fenech, took the witness stand before Mr Justice Mark Simiana on Friday.

Lawyer Edward Gatt, appearing for Schembri, together with lawyer Mark Vassallo, asked Bajada to repeat the information that he had given about the device in question during yesterday's sitting in the proceedings against Fenech.

Bajada told the court that he had noticed the exhibits to have been packed differently to the way he had originally packed it.

Asked by the Judge as to how he had exhibited them, Bajada explained that "because there was a big desktop PC and other items: Ipads, an iPhone, a MacBook, pen drives, a laptop…I put the desktop in a separate box."

"The iPhone [belonging to Keith Schembri] was in an evidence bag. There had been a handover from the police. I took it out of the bag, extracted the data and sealed it back in the bag. When I went down again I found all the exhibits, placed together in a box that had been put inside a grey recycling bag. When I saw this, I stopped there."

Bajada had then called the Registrar, Franklin Calleja, to accompany him to the strongroom and see it for himself.

"On Friday, I had testified before the Criminal Court. I said that there was nothing irregular at this stage, but that we had to document it…"

The Judge repeated to Gatt that Bajada had found that the exhibits had been placed in a recycling bag.

Bajada explained that he had taken photographs of the exhibits before handing them into evidence and had subsequently obtained permission to photograph them in the manner he had found them. The next step was for him to trace the movements of the exhibits, but this process had been interrupted by yesterday's decree.

The data is coming from an exhibit, which had featured in inquiries conducted by four magistrates, as well as police investigations, said the expert. "So, there are four, sorry five, copies of the mobile phone's contents that had been made, well before this incident happened. There are four other places to compare the integrity of its contents with."

Asked about the issue flagged by magistrate Donatella Frendo Dimech, Bajada said that "she might have, for her own reasons, decided to appoint a different expert to examine the exhibit and this is why its appearance might have been changed."

In reply to further questions from Gatt, Bajada insisted that he did not currently have access to the case file. "I have not been allowed to continue my movement tracing exercise… so I can only speak about my report."

He told the judge that he intended to carry out a reconciliation exercise on the data, that would establish whether any of it had been changed, when his access was restored.

Gatt asked about the process of photographing exhibits. Bajada told the court that as soon as any exhibit is taken to the strongroom, it is photographed as part of the process, however adding that the external appearance of an exhibit may be different to the photograph taken when it was originally exhibited.

Bajada repeated that when he saw that the exhibits had been placed inside the grey plastic bag, he had not opened it.

Lawyer Maurizio Cordina, representing the State Advocate asked Bajada whether he had confirmed whether anyone else had handled the exhibit.

Bajada said he had been unable to confirm this at this point in time, explaining that while there are many documents which attest to its handling, he doesn't currently have access to them.

After Bajada stepped off the stand, Gatt and Vassallo asked that in order to settle this issue and allow the case to continue on its merits, before Bajada continued with the tasks he was ordered to do by the Criminal Court in proceedings against third parties, a site visit is carried out in the presence of the judge where the expert indicates to the court what he had found different in the exhibit in question. He also asked that the expert confirm whether all the exhibits were present in what he described as a "Lidl box."

Simiana turned to the State Advocate and asked what its position was on the matter.

Cordina agreed. "The sooner the better. If the site visit is to happen right now, let it happen right now."

The judge informed the parties that it would take place in the afternoon, but also questioned whether it was even necessary, after Bajada had confirmed that there were four other copies of the exhibit.

Gatt was having nothing of it, insisting that the preservation of evidence must persist until proceedings are decided.

He decried what he described as "the use of lots of fancy words." "I have an expert who said that after finding it in a different state to that in which he left it, didn't know whether it was photographed, for one. And if he had not opened the bag, how can he know what is inside it? Don't insult my intelligence. The phone was found in the acts of the case against Lorraine Falzon, don't forget- that is the point of departure."

The judge ordered the inspection to take place today, adjourning the case on the merits to continue to later this month.