Two cleared of €71,000 burglary

40-year-old Kevin Tabone from Santa Lucija and 39-year-old Johan Pace from Valletta were cleared on Thursday of breaking into a garage connected to an Iklin residence in November 2015 and stealing €71,000 worth of cash, cigarettes and jewellery.

The pair were also cleared of handling stolen goods and Pace alone exonerated of an additional charge of relapsing, having several previous convictions for theft.

Quoting judgments by the Court of Appeal, magistrate Nadine Lia said that the material action as well as criminal intent needed to be present in order for guilt to be found.

The accused had been arrested after the police had been anonymously tipped off that a van with a certain registration number had been seen being loaded with boxes from the residence which had been targeted by thieves, by two suspicious men.

The author or authors of the letters were never identified.

Police investigations had found that this van was a Mercedes Vito owned by Tabone.

The court was shown mobile phone calls and localisation data as well as an eyewitness who saw two hooded men, of similar stature to the accused, dressed in dark clothing and loading cardboard boxes into a Mercedes Vito.

Scene of crime officers had obtained fingerprints from the burglarised home but these prints had not matched those of the accused men. The stolen items were never recovered.

In its judgment, the Court of Magistrates observed that the fingerprints elevated from the scene of the crime did not match those of the accused.

The accused had released detailed statements about the facts of the case to the police, but had no lawyer present and had not received full disclosure of the evidence against them. Quoting a wealth of case law including landmark cases Christopher Bartolo vs AG et and Salduz vs Turkey, the court decided to declare the statements as inadmissible.

The Court additionally noted that the AG had quoted an article of the law which “doesn’t exist and hadn’t existed for some time.”

In a highly-researched judgment, quoting reams of case law, the magistrate ruled that evidence, if equivocal, is not sufficient to obtain a criminal conviction.

The court said that no forensic evidence, direct evidence or specific evidence tying the accused to the burglary or to the handling of stolen goods.

Despite the fact that the van registered to Tabone was on the scene in the time period in which the crime took place and that an unregistered number had called Clifton Galea and Johan Pace around the same time, these did not suffice to remove reasonable doubt.

“The court opines that effectively, to reach a conclusion of guilt with regards to…the charges, one must necessarily make assumptions and hypothesise scenarios which do not emerge from the evidence.”

The court said it could not find guilt on hypothetical scenarios and so it cleared the men from the theft charges.

Inspectors Arthur Mercieca and Sandra Zammit prosecuted.

Lawyers Arthur Azzopardi and Giannella Demarco appeared for Pace and Tabone, respectively.