A suspicion is not evidence

Circumstantial evidence is like a chain of evidence that must lead to the guilt of the accused. This was held in a Court of Criminal Appeal judgement delivered on 28 July 2022 in Il-Pulizija -v- Clive Agius. The Court was presided by Mr Justice Giovanni Grixti.

Agius was accused of theft from a residence in Msida and of causing voluntary damage to the property. He was also accused of breaching two bail conditions and of being recidivist.

The Magistrates’ Court found Agius as not guilty. The Attorney General appealed the judgement and asked the Court of Criminal Appeal to revoke the judgement and find the accused guilty.

The Court went through the evidence produced. From this evidence, the police were informed that persons entered a residence with the intention to steal. When the police arrived they were informed that the thieves ran into an alley. The police entered a construction site and found two persons, one of which was Agius. Close to them there were the stolen items including a watch and a pistol. The Magistrates Court held that there was no evidence tying the accused to the theft. There were not fingerprint, nor DNA. The Attorney General (AG) was of the opinion that the Court did not analyse the evidence well.

Agius had testified and said that the co-accused rang him on an issue concerning his son who lived in the same block. When he arrived the co-accused started running and Agius followed. The AG held that the circumstantial evidence pointed in one direction and that was towards Agius.

The Court quoted from caselaw such as Il-Pulizija -v- Carmelo Busuttil decided by the Court of Criminal Appeal on 6 May 1961 which said: “circumstantial evidence is often the best evidence”.  The Court in this judgement held that circumstantial evidence most often than not is the best evidence, but this must be examined with some attention. Although circumstantial evidence allows some suspicion directed at the accused, suspicion is not evidence. The Court also quoted from a British author Pollock CB, who wrote:

“It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any on link broke, the chain would fall. It is more like the case of a rope comprised of several cords… Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction or more than a mere suspicion; but the whole taken together may create a conclusion of guilt with as much certainty as human affairs can require or admit of.”

The Court held that the Criminal Code allows the judge to either believe the witness in everything or else partially. If a witness is not to be believed on one thing does not mean that he is not to believed on another thing. Therefore, it is clear that the Magistrates Court did believe Agius when he denied his involvement with the theft. The Court of Criminal Appeal also expressed a lurking doubt on Agius’s participation.

It is useless for the prosecution to state that the witnesses did not testify because of fear, but the description given was not sufficient.

The Court moved to reject the appeal and confirm that Agius was not guilty.