Conviction for attempted lotto booth robbery overturned on appeal

A judge has overturned an attempted robbery conviction handed to a man from Ghaxaq and his two sons, after ruling that there were serious shortcomings in the prosecution’s case.

48-year-old Keith Mallia, his son Mario, 22, and another son who is not being named as he was a minor at the time of the incident, were accused of attempting to steal from a lotto booth in Marsa in February 2016. The attempted break-in took place between 3am and 4:30am, rendering it aggravated. 

Keith Mallia alone was also accused of breaching at least four previous court sentences as well as with driving with an expired licence and without insurance.

The two sons were additionally charged with breaching court sentences and bail conditions.

Madam Justice Consuelo Scerri Herrera observed that with regard to theft, the men were arrested in the vicinity of the lotto booth, shortly after the break-in. RIU police officers testified to how the men had tried to evade capture in their alleged getaway car.

When the car was stopped, it was noted that the number plates were covered and tools which could be used for forced entry were found inside - as well as two balaclava masks and gloves on the passenger seat. Police witnesses told the court that one of the men was still wearing a balaclava when they were arrested, but disagreed on which side the masked passenger was sitting.

CCTV footage from the lotto booth had shown two masked men approach and turn the cameras to face away. The men were wearing clothes similar to those worn by the Mallia sons when they were arrested, and were carrying a large pair of scissors similar to one found in the vehicle when they were arrested. A radio, tuned to RIU frequencies was also found in the car.

But despite this, the court said that these facts alone were not sufficient to lead to moral certainty beyond reasonable doubt that the men were there to rob the booth in question.

The men’s clothes were similar to that of the thieves, but lacked any distinctive marks or designs which would have identified them, said the court. In addition, the court said that there were no fingerprint or DNA evidence, also pointing out that no call profiles or eyewitness statements were exhibited to show that the men were in the area of the lotto booth at the time of the attempted break-in.

These were “enormous” shortcomings by the prosecution which fell short of the ‘best evidence’ rule, said the appellant. It was the duty of the court to demand the best evidence be produced, pointed out the appellant, backing up his reasoning with copious references to case law.

The court noted that the prosecution had not charged the men with carrying break-in tools, as it should have, clearing them of the attempted theft charges.

The first court had condemned the father to 30 months, which was reduced to 7 months for the driving offences and the breaching of previous sentences. He was also disqualified from driving for 12 months. The judge ordered his re-arrest and the forfeiture of his bail deposit, saying his breach of bail showed disrespect to the courts.

The youth had his sentence reduced from 13 months to 4 months on account of his difficult childhood, as reported by his Probation Officers. His rearrest was also ordered after he was found guilty of breaching his bail conditions.

Mario Mallia, who had been jailed for 20 months by the court of first instance, was cleared of all charges and released.

Lawyers Franco Debono and Amadeus Cachia were defence counsel.