CCTV solves bird theft

This was decided on 11 December 2013 in the names of The Police (Inspector Nikolai Sant) -v- Hubert Gatt.

Gatt was accused that on 16 and 19 November 2010, he committed a theft of four birds from a San Gwann pet shop, which theft was aggravated by value.

Magistrate Grima examined the evidence produced by the prosecution which was principally a CCTV film taken at the shop on 19 November 2010 and photos taken from a footage of the same CCTV on 15, 16, 18 and 19 November 2010. There is no other evidence that implicates Gatt. The owner of the pet shop, Anthony Calleja, testified that the accused had stolen four birds on two occasions. He noticed this when he looked at the tapes of the CCTV. The police carried out a search of Gatt's residence and found on the roof of the apartments and behind the water tanks two cages with two birds each. The shop owner identified them where returned to him, from their colour and the species which were rare in Malta. These birds were never formally produced as evidence, since no photos were taken and presented in court. Magistrate Grima held that due to this blunder, the Court could not make use of the theory of recent possession, which is based on common sense that if a person is found in possession of items which were recently stolen, then that would be sufficient evidence to find that person guilty of theft or of being in possession of stolen goods. 

The Court further held that the police had found a number of birds at his residence, however, found these four birds hidden on the roof. The accused had explained to the court that he had taken these particular birds on the roof for them to enjoy the sun, however, the Court did not believe him because they were found in a bag, which shielded them from the sun. Since the birds were not produced as evidence, the Court could not establish beyond reasonable doubt that those birds were in fact the birds which were stolen. As regards their value, the owner indicated that they were worth €200 each, but no further documentary evidence was produced to substantiate this.

In his police statement, the accused denied stealing the birds. He confirmed that he was present in the shop and the CCTV footage was of him. He held that he visited the shop to sell birds to Calleja. There was an agreement on the price and he left the birds in a cage. The next day he went to collect the money, but Calleja informed him that the person to whom they were sold did not collect the birds. The next day he returned to the shop, but while he was  waiting, the police turned up and arrested him.

The only evidence was the CCTV footage and the Court used the guidelines of identification used by the English Courts found in a judgment R -v- Turnbull, but also adopted in Malta by means of a Court of Criminal Appeal judgment Il-Pulizija -v- Stephen Zammit of 16 July 1998. In the Turnbull case the court held: "First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words."

Magistrate Grima quoted from other English jurists on the principles of identification of the accused and the dangers of identification by witnesses. However, the Court also argued that the accused himself confirmed his identity in the photos and the footage. 

In her judgment, Magistrate Grima commented judging by the film taken, the accused was acting suspiciously and concluded that he did in fact steal the birds. Since no value was given to the birds, she found that she could only find Gatt guilty of a simple theft. 

Since he had an almost a clean criminal record, the Court awarded him a two-month prison sentence suspended for a year.

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates