A San Gwann man was yesterday acquitted of stealing construction material after a court found that the prosecution had failed to produce a witness who had seen another man drive away from the construction site.

Magistrate Miriam Hayman noted that the prosecution in the case against Bartholomew Micallef, 26, had produced a witness who claimed he saw Micallef drive off in his van with the goods but did not produce another witness who said the man in the van was someone completely different.

Micallef was charged with stealing more than Lm100 worth of beams and ceiling stone slabs from Stephen Sammut's property in Madliena on April 17, 2000.

He consistently denied the charge, so much so, that when Sammut and Antoine Azzopardi, who claimed he saw him make off with the goods, faced him, he went off to the police station to deny his involvement before he was even reported.

Emanuel Zammit, produced by the defence, said he had seen another man drive the pick-up and actually identified him. Both witnesses were categorical about what they saw which created enough of a doubt to acquit Micallef, the magistrate ruled.

But she also remarked that it was the prosecution's responsibility to ensure that it produced all the witnesses, both in favour and against the defendant and was not to choose which witnesses to bring forward. She noted that the prosecution in this case knew of Zammit and had not summoned him to testify.

Police Inspector Simon Galea prosecuted.

Dr Joseph Giglio appeared for the defendant.