Hearsay rule clears man of burglary

A man accused of burglary has been acquitted 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 and the only other tie to the accused was an anonymous police informant.

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.