Mugging conviction 'fell short of moral certainty required by law'

The Court of Criminal Appeal has overturned the conviction of a man found guilty of complicity in the theft of his friend’s watch and mobile phone, worth a total of €3,600.

Dylan McKay had been charged after his friend was mugged in a car park near Paceville in November 2014 by at least two men. His friend’s Rolex watch and top of the range mobile phone had been stolen by the robbers. McKay was subsequently charged with theft aggravated by violence, complicity in illegal arrest and slightly injuring the man.

The victim had testified that he had been out with three persons, McKay amongst them, at Havana in Paceville. Whilst drinking, the appellant had asked him to accompany him to the parking area to bring something from his car. As they were walking to the car park, McKay had walked ahead of the victim. Halfway through the parking area, the victim was grabbed by the throat from behind and thrown to the ground. The aggressor stole his €3,000 Rolex and €600 Samsung mobile phone and injured him slightly.

The victim said he had suspected the involvement of McKay because right before the aggression took place he had walked off ahead, leaving him alone and had seen him walk around a car which wasn’t his.

Immediately after the robbery, after McKay saw what had just happened, he had called and paid for a taxi to take him and the victim to the nearest police station, noted the court. McKay had also paid for another taxi to take the man to a polyclinic, although he didn’t accompany him there.

The court of first instance had found McKay guilty and sentenced him to two years imprisonment suspended for four years and ordered him to pay €3,600 to the injured party. He had subsequently filed an appeal through his lawyer Roberto Montalto.

 The Court of Criminal Appeal, presided by Madame Justice Edwina Grima examined whether McKay could be found guilty of complicity in the theft, noting that his participation in the crime and a “common design” were requirements for a successful conviction.

She observed that the first court had made a number of presumptions of facts which could implicate the appellant, without establishing this prior agreement and noted that the accused had not been charged as an accomplice, but as the principal offender.

Although the accused had been present at the time of the offence, it did not appear that he could have committed the crime being attributed to him. McKay “could have been a co-principal or at worst an accomplice,” said the judge, and still, a “common design” would have to be proven.

The evidence brought before the court of Magistrates “fell far short of the moral certainty required by law” for a conviction, said the judge.

The injured party’s testimony had been inconsistent, and his allegation that the appellant had tried to put something in the injured party’s drink -which would show some form of intent - had not emerged at the time of the arrest, but only at an advanced stage of court proceedings. Despite the alleged botched spiking of his drink, he had still chosen to accompany McKay to the car park.

The fact that the accused had been a few paces ahead of the victim could only give rise to a suspicion and did not prove anything said the court. Furthermore, the appellant had returned to the victim’s side after the attack which didn’t suggest any agreement with the aggressor, the court added.

The victim had ported his number to a new mobile phone soon after the incident, the court heard. Not long after that, he had received a phone call asking for the appellant, he had told the court. But the judge ruled that this could only raise a suspicion, not proving anything, as no call logs were exhibited.

The presence of the accused on the scene of the crime alone could never lead the court to be morally convinced that he had come up with a plan of action with the aggressors in order to commit the crimes.

Finding the prosecution’s case to be wanting madame justice Grima said that “although the Court could arrive at some conjectures or suppositions from the acts of the case, as the first court had arrived, certainly these can never lead to the condemnation of a person under the law, which establishes clear rules which must be scrupulously adhered to…”

The court upheld the appeal and overturned the man’s conviction.