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With regards to the intentional element of the crime of theft the Court held that the argument of the accused did not hold water since the simple use or enjoyment of the object, even if temporarily, satisfies the criterion of the intent of gain.

This was confirmed by the Court of Criminal Appeal in virtue of a judgement of the 31st July 2019 in the names Pulizija v Kevin Psaila.

Kevin Psaila had been arraigned before the Court of Magistrates (Malta) accused of having committed a theft of a television from a residence in Zabbar between the 7th and 8th October 2012 which theft was aggravated by value, means, time and location. Kevin Psaila was also accused of having become a recidivist. By means of a judgement of the 24th April 2017, Kevin Psaila had been found guilty of having committed theft, but he was acquitted of the other charges that had been brought against him and was given a sixteen-month prison sentence which was suspended for a period of three years.

Psaila felt aggrieved by this judgement and filed an appeal on the ground that the Court of Magistrates had entirely based its decision on the indicative evidence of the accused’s fingerprints that had been voluntarily provided by Psaila. The said fingerprints were found on the window of the residence from where the theft had taken place and the appellant had justified them by saying that at the time, he had been waiting to meet his acquaintance and he had leaned against the window whilst waiting.

The appellant referred to previous judgements where it had been held that the evidence of fingerprints serves to strengthen other evidence of the Prosecution and that they required corroboration by other evidence. The appellant referred to a judgement in the names Il-Pulizija v. Victor Gatt decided by the Court of Magistrates on the 27th May 1999 where it had been held that the fact that the fingerprints of the accused were found on a bottle of whiskey found at the location of the theft, did not prove that the accused had, in fact, committed the crime but only proved that he had touched that whiskey bottle.

Moreover, the appellant also argued that the essential elements which subsist in the crime of theft were not properly analysed by the First Court. He argued that in accordance with the teachings of legal jurist Carrara, the intentional element of this crime does not only consist in the intent to take the object but also to gain from that object. The appellant argued that the Court failed to observe that at the time of the crime as well as in the present, he had an established employment on a full-time basis and therefore the circumstances did not seem that he had a reason as to why he would have wanted to steal an old television to gain from it.

Professor Sir Anthony Mamo explained that “the special malice of theft consists in the intent to procure a benefit or satisfaction whatever from the thing belonging to others (lucri causa). Thus “lucrum” in this connection does not mean an actual gain or profit in terms of money but any advantage or satisfaction procured to one’s self.”

The Court of Criminal Appeal analysed that in certain cases fingerprints are sufficient evidence to prove that a crime had in fact been committed. In previous judgements the Court had made a distinction between fingerprints found in public places such as shops, churches, cinemas, bars, restaurants etc and those found in private residences. In the case Pulizija v Vincent Calleja, decided by the Court of Criminal Appeal on the 7th May 2002, it had been held that the question was not whether the fingerprint was found in a public or private location but whether in light of the circumstances the place where the fingerprint was found convinces the adjudicator that beyond any reasonable doubt this was made by the person in the course of committing the crime that he was being charged with. Moreover in the case ir-Repubblika ta’ Malta v. George Spiteri decided by the Court of Criminal Appeal (Superior) on the 5th July 2002, it had been held that indicative proof must be unequivocal and which points solely at a certain fact or conclusion and this beyond any reasonable doubt.

The Court held that in this case, the police had matched three fingerprints of the accused on the window. What was important was the location that these were found since whereas two of them were found on the outside of the window, the third one was found on the left side of the window when you look at it from the inside and therefore this necessarily meant that the accused was undoubtedly inside the residence when this fingerprint was deposited. The appellant was not able to justify this and it did not result that he had previously been inside the residence for any legitimate aim and from other evidence it had resulted that the window had been left closed by the owner of the residence and was not open as the accused had argued.

With regards to the intentional element of the crime of theft the Court held that the argument of the accused did not hold water since the simple use or enjoyment of the object, even if temporarily, satisfies the criterion of the intent of gain since the word gain is to be interpreted in its most wide sense and not necessarily in monetary terms.

In view of the above the Court of Appeal rejected the Appeal and confirmed the judgement of the Court of Magistrates in its entirety.

Av. Catherine Mifsud

Mifsud & Mifsud Advocates

This article may also be accessed on Malta Today.

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