Man cleared of theft charges af­ter wit­ness fails recog­ni­tion test

Malta Independent - - NEWS -

A man ac­cused of bur­glary was ac­quit­ted yes­ter­day af­ter the pros­e­cu­tion’s key wit­ness said she could not be cer­tain that the ac­cused was the per­son she had seen clam­ber­ing over a low wall into her neigh­bour’s prop­erty.

Paul Abela, 62, from Rabat, had been ac­cused of break­ing into a house in Triq il-Kbira, Dingli and steal­ing €2,000 in cash as well as some gold items. He was also charged with re­ceiv­ing stolen goods and dam­ag­ing prop­erty dur­ing the break-in. Abela was fur­ther charged with re­cidi­vism.

Abela had been charged by the po­lice on in­for­ma­tion given by an anony­mous source who had seen three men in a van, one of whom alighted and en­tered the house. The men were not recog­nised as be­ing the own­ers of the prop­erty. A con­sta­ble was dis­patched and found the front door locked and no­body home. A sec­ond phone call from the vic­tim, who lived next door, in­formed the po­lice that her house had been bro­ken into and robbed. Po­lice es­tab­lished that the thieves had bro­ken into the house next door and climbed into the prop­erty from the back yard.

In­spec­tor Car­los Cor­dina tes­ti­fied that he had been con­fi­den­tially in­formed that the ac­cused, known as il-Fjakk, was in­volved in the bur­glary.

A neigh­bour tes­ti­fied that she had been hang­ing out the wash­ing when she had seen a man whom she did not recog­nise look­ing into the yard of the robbed house. He had scowled at her when he saw her look­ing. She had difficulty iden­ti­fy­ing him in court, how­ever.

Af­ter com­pre­hen­sively ex­am­in­ing ju­rispru­dence on the mat­ter of eye­wit­ness misiden­ti­fi­ca­tion, mag­is­trate Josette Demi­coli noted that when ques­tioned in the im­me­di­ate af­ter­math, the wit­ness had said that she had seen two per­sons on the roof of the res­i­dence, aged be­tween 30 and 40, one of whom was of a dark com­plex­ion and wear­ing a cap.

In an iden­ti­fi­ca­tion pa­rade held over two months later due to difficulty in trac­ing the ac­cused, the woman had iden­ti­fied the ac­cused as “prob­a­bly” the per­son she had seen, due to his build. On the same day of the lineup, she had tes­ti­fied be­fore the in­quir­ing mag­is­trate but had given a slightly dif­fer­ent de­scrip­tion, now say­ing that one of the men was ad­vanced in his years and the other was of a slim build. She had in­sisted that it was dif­fi­cult to make out the per­son she had seen be­cause they were far away.

Pros­e­cut­ing po­lice in­spec­tor Car­los Cor­dina had tes­ti­fied that a per­son who wished to re­main anony­mous had men­tioned the ac­cused to him by name and nick­name. But as this anony­mous source never tes­ti­fied in the pro­ceed­ings, it was treated as hearsay, which is given no weight at law.

“There­fore, while the stature de­scribed by the wit­ness matches that of the ac­cused, it also matches that of other per­sons. In view of the fact that no other di­rect or cir­cum­stan­tial ev­i­dence point­ing to the ac­cused was sub­mit­ted. This court can­not find guilt.”

Even had the ac­cused been the per­son iden­ti­fied, the time­frame in­di­cated by the wit­ness did not match that spec­i­fied in the charges, ob­served the court.

Abela was ac­quit­ted. Lawyer Kath­leen Grima was de­fence coun­sel.

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