In 2019, crime statistics revealed that theft was the predominant criminal offence, making up just under half of the crimes committed in Malta.
This has been the case since the 19th century when what men comprehended by the term ‘crime’ was largely theft and assault.
As a matter of fact, records at the Legal Documentation Centre of the National Archives show that 42.38% of the total cases heard by the Criminal Court between 1838 and 1888 were crimes against property.
At the time, crimes against property carried the heaviest imprisonment sentences, and a first-time offence of simple theft was punishable with hard labour for one to six months.
Despite that, under our Criminal Code, theft is categorised as an offence against property and public safety; the Maltese legislator does not define the crime of theft and sets off immediately by indicating the aggravations of theft.
Nonetheless, authoritative sources within the legal profession define theft as “the unlawful taking of someone else’s property without his consent in order to make a gain”.
Most law students will blindly (and proudly) recite this definition in the Italian language (la contrattazione dolosa di cosa altrui, fatto invito domino con animo di farne lucro), made famous in the legal sphere by Italian jurist Francesco Carrara.
Really and truly, this definition encompasses all essential elements that the prosecution needs to prove beyond reasonable doubt in a case where the accused is charged with the offence of theft.
Under our law, theft is committed as soon as the offender touches an object with the intention of stealing it, so in actual fact it is irrelevant whether an object was removed from the sphere of control of its owner. This approach postulates a fixed and invariable gauge.
However, it is worth emphasising that the actions need to be accompanied with the corresponding malicious intent to steal – in the absence of said intention, a person cannot be convicted of theft. His actions may amount to a mistake of fact but surely not to the criminal offence of theft.
This was the matter at hand in the case of ‘The Police v Eldhose Joy’, decided by the Court of Magistrates (Gozo) on May 15.
To put things into context, Eldhose Joy was principally accused that on some day during the month of January he committed the theft of a laptop to the detriment of the Kempinski Hotel as well as for having, during the same period, as an employee working within the Kempinski Hotel, committed the theft of a bicycle, which theft was aggravated “by amount”.
Theft is aggravated by amount when the value of the thing stolen exceeds €232.94, a strange number which is reflective of the old lira, that is Lm100.
The plaintiffs had no guarantee that they were right in their arguments
Since, at the time, the accused was employed within the Kempinski Hotel, the prosecution claimed that such theft was also aggravated “by person”.
After returning the said laptop back to its rightful owner, upon arraignment, the accused declared that he was guilty of stealing the laptop but that he was not guilty of stealing the said bike.
The court heard that the Kempinski Hotel used to rent out bikes to clients on demand; however, the said bikes were owned by a sub-contractor. One of the bikes was noted missing when the sub-contractor went to the hotel to collect his bikes after the hotel closed due to COVID-19. At the time, no police report was filed with the police.
The financial controller of the hotel confirmed under oath that a police report was filed when another employee of the hotel noticed that the accused was uploading on his social media pictures with the company laptop and bicycle.
He further confirmed that the hotel management was not aware of the exact period in which the bike went missing.
When asked about the screenshots that were produced to the court by the said financial controller, the witness confirmed that such screenshots were obtained through a third party who in turn passed them on to him. Nonetheless, throughout the entire criminal proceedings, this third party was never brought to testify and confirm the origin and authenticity of the said pictures.
In its accurate considerations, the Court of Magistrates pointed out that it is fundamental for the prosecution to produce the best evidence to the court’s review. In the present case, the prosecution did not summon the most important witness – the third party who noticed the pictures which were allegedly uploaded on the accused’s social media profile and subsequently alerted his employer.
Considering that the front office desk failed to notice that one of the bikes was missing and only became aware of such after the sub-contractor and owner of the said bikes drew their attention, the court concluded that the time or date when the alleged theft took place was not proven successfully.
After delving into the elements making up the offence of theft, the court determined that since the person who noticed such images on social media was not summoned to testify, as well as considering that the prosecution failed to put forward evidence linking the account from which the pictures were taken with the accused, it was not proved beyond reasonable doubt that the accused had stolen the bicycle.
The court, after noting that the accused, being a first-time offender, had registered a guilty plea at an early stage of the proceedings with regard to the theft of the laptop, and in view of the fact that the laptop and the uniform were returned to the police, condemned him to nine months’ imprisonment and ordered that such sentence shall not take effect unless the accused commits another offence punishable with imprisonment during the subsequent three years from the date of judgment.
Both the Attorney General and the accused may appeal from this judgment.
Rene Darmanin is junior associate at Azzopardi, Borg & Abela Advocates.