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There is no need of other circumstantial evidence, if fingerprints are found, in order to convict a suspect of theft. This was held by the Court of Criminal Appeal on 4 July 2023 in Pulizija vs Derrin Fenech sive Derrin Edward Fenech. The Court was presided by Mr Justice Neville Camilleri.

Derrin Fenech was accused of stealing multiple gold items and jewellery alongside an amount of cash. The alleged stolen amount was around €6,500. In addition to this, there was an alleged violation of Article 263 of the Criminal Code which is theft aggravated by means since the value of the items stolen exceeded €2,339. Furthermore, Mr Fenech was alleged to be a recidivist which is the violation of Articles 49 and 50 of the Criminal Code.

Our Criminal Code does not cater for a definition of the offence of theft, but the courts follow the definition of the Italian jurist Francesco Carrara which was referred to in the case R v Pisani “the unlawful/malicious taking of someone else’s property without his consent in order to make a gain”.

The Court of Magistrates, decided to find the Accused not guilty and he was acquitted because although the Court was convinced that the fact of theft was “fully proven” it found Mr Fenech not guilty based on the opinion that the plea of the medium was not proven.

The Attorney General appealed the judgment on the basis that the Court of Magistrates interpreted and applied the relevant law incorrectly and discarded crucial evidence of a fingerprint that belonged to the accused which was found on a gold-coloured box.

The Court of Appeal went on to comment on its role by referring to the judgment Pulizija vs Julian Genovese where it is clearly stated that the appeal lodged by the Attorney General does require a reappraisal of the facts, but the court must remain focused on its aim to decide whether the First Court reasonably and legally reached its decision.

The Court of Criminal Appeal in this case made it clear that fingerprints are considered to be one of the most reliable forensic clues. Thus, when it comes to the fingerprint evidence that was dismissed by the Court of Magistrates, the Court of Criminal Appeal referred to the judgment of Il-Pulizija vs Emanuel Camilleri delivered on 30 June 1998 which stated that fingerprints require corroboration from other circumstantial evidence. But there are cases where the proof of fingerprints alone is sufficient for the Court to be morally convinced that there is guilt.

The judgment also quoted il-Pulizija vs Noel Frendo decided on 30 December 2004 in which fingerprints are a form of circumstantial evidence, which was defined in the British case DPP vs Kilbourne as evidence which works by cumulatively, in geometrical progression, eliminating other possibilities.

Due to the above reasons, the Court identified that the first court misapplied the law and therefore accepted the appeal of the Attorney General and found Mr Fenech guilty of theft with the aggravation. Also, the allegation of recidivism was rejected by the court as it applied Article 50 of the Criminal Code a person must commit a crime within 10 years or five years from when the punishment has ended, in this case this did not occur thus not finding the accused guilty of this charge.

Mr Fenech was found guilty of the first imputation and the aggravations by means and place resulting in a punishment of two years’ imprisonment suspended for four years. It was also added that Mr Fenech was ordered to pay back the amount stolen to the victims within six months by virtue of Article 28H of the Criminal Code.

Av. Malcolm Mifsud


Mifsud & Mifsud Advocates

This article may also be accessed on MaltaToday. 

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