Issue link: https://maltatoday.uberflip.com/i/1024340
maltatoday 13 | SUNDAY • 9 SEPTEMBER 2018 CULTURE ENVIRONMENT LAW & PLANNING IN this case, the Planning Commis- sion had granted full development permission for the sanctioning of a ru- ral dwelling 'as built' even though the Planning Directorate had argued that the floorspace at basement level went beyond the footprint of the building. The building in question is located within an area proposed for schedul- ing as a Level 3 Area of Ecological Im- portance in Bidnija. According to the case officer, the interventions were tantamount to 'ex- cessive take-up of rural land', resulting in 'urban development which will 'vis- ually dominate and detract from the character and integrity of the original building.' Likewise, the Environment and Resources Authority (ERA) had also objected to the proposal after it held that the extent of development was scattered over a large area. However, the Commission felt that permission should be granted since the site was covered by an old building permit, noting that that the built area at ground floor was less than what had been previously approved. Moreover, the basement could be justified since 'the site is sloping and there is a dif- ference in levels from the front to the back of the site'. The permit was eventually approved subject to a plan- ning gain of €15,000 and an additional €50,000. For his part, applicant submitted an appeal against the €50,000 fine before the Environment and Planning Review Tribunal, noting that the €50,000 fine was imposed in terms of section 105 of the Development Planning Act, 2016, which provision empowers the Execu- tive Council to impose a maximum of €50,000 compromise fine when it believed that a person has committed an offence against the Planning Act. Moreover, appellant brought forward the following arguments: • The Commission failed to grant him the opportunity to state his case; • The Commission failed to give adequate reasons for the imposi- tion of the said fine; • In any case, the fine was 'ex- cessive, unreasonable and unneces- sary'. In reply, the Authority reiterated that it was empowered to impose compro- mise fines where the Executive Coun- cil felt that a person committed an offence against the Planning Act, the amount of which lay within its discre- tion. It was further highlighted that a distinction should be made between a planning gain and a compromise fine. In its assessment, the Tribunal felt that contrary to what appellant had al- leged, the Commission's intent on im- posing a €50,000 fine had been made public in the case officer's report, which report was accessible to appel- lant. Consequently, the Commission was not found to have acted in breach of the fair hearing principle. Nevertheless, the Tribunal conclud- ed that the €50,000 should not have been issued in terms of section 105 of the Development Planning Act, 2016 since the said provision concerns the Executive Council rather than the Planning Commission that was en- trusted with the issuing of the per- mission. For this reason, the Tribunal decided to revert the case before the Authority for reassessment. THE Court of Criminal Appeal upheld an appeal lodged by former employ- ers, claiming that it was unconvinced with the complainant's version in her testimony. This was held in a judgment delivered by Madame Justice Consuelo Scerri Herrera, on 4 September 2018 in Il-Pulizija -v- Joseph Azzopardi and Ed- ward Vella. Both Azzopardi and Vella, directors of Bottega Del Marmista Ltd, had been accused that they did not pay their em- ployee's wages, allowances and bonus. The Magistrates' Court found them guilty and fined them €300 and or- dered them to pay Erica Sammut Alessi €19,076.13. However, this judgment was appealed on the ground that these payments had, in fact, been paid and therefore, the judgement constituted a miscarriage of justice. Furthermore, the accused did not consider that Sammut Alessi carried out her duties as they had expected her to do. The only justified claim is that Sammut Alessi was not paid during the period Joseph Azzopar- di was unwell. Madame Justice Scerri Herrera held in her judgment that one of the cardi- nal principles of law is that the Court of Appeal does not disturb the first court appreciation of the evidence. The Court of Appeal looks at the evidence to see whether the first court could have ar- rived to its conclusions. If the Court of Appeal finds that the first court could not reach the conclusions it reached, then the Court of Appeal, could chang- es the conclusions. In fact, in this case, the accused based their appeal on the ground that Erica Sammut Alessi is not credible. The Court pointed out that the accused were charged because they were the directors of the company, and the company failed to pay the employ- ee's wages and benefits, amounting to €18,307.35. The evidence produced showed that Sammut Alessi was employed with the accused's company. A Labour office witness told the court that Sammut Alessi had approached him and had shown all her payslips. The Department had approached Azzopardi, and he in- formed them that he could not pay, be- cause Sammut Alessi had taken all the files and he had paid her in cash. Erika Sammut Alessi testified and in- formed the company that she worked as a clerk with the company and inputted data in the computer, which included he wages. There were other employees, but some left, because of lack of payments of their wages. She explained that due to the fact she was not being paid, she was hard up and had financial difficulties. Azzopardi also testified and did not agree with this version of events. He confirmed that his former employee worked mostly on the computer, and also dealt with the payroll. He paid his employees in cash and Sammut Alessi issued the payslips. After she left the computer was empty and therefore, there was no evidence that his employ- ees were paid. When he was admitted to hospital for 12 weeks, he was going to pay them when he collected he cash. He complained that Sammut Alessi did not start work on time and took a large amount of sick leave. The Court pointed out that it is the prosecution who has to prove the charges, since the accused are pre- sumed innocent as stipulated in Article 40(5) of the Constitution. In a previous judgement Il-Pulizija -v- Michele Borg decided on 23 May 1996 by the Court of Criminal Appeal, held that these principles are based on the English criminal law and are principles of public order. The prosecution has to prove its case beyond reasonable doubt and any doubts go in favour of the accused. Lord J. Denning in his judgement in Miller v Minister of Pensions (1935) said: "that degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible but not in the least prob- able' the case is proved beyond reason- able doubt but nothing short of that will suffice." According to Article 638(2) of the Criminal Code, the court may choose to either believe a testimony or other- wise. Therefore, the court has to decide which witness is credible and it is the Court which has to examine the other evidence too. In fact, the circumstance evidence may be the most important evidence in the case and are aimed at in- dicating whether the accused commit- ted the crime. In this particular case, the court is faced with two opposing versions. The Court of Criminal Appeal would not have heard the witnesses, but would depend on transcripts. In these cases all there is, are the transcripts of the wit- nesses. From these transcripts it tran- spires that Sammut Alessi was instigat- ed to testify. She claimed to be merely a clerk, but from her job description she was more of an administrator. The Court pointed out other instances of discrepancies in her testimony. On the other hand, Azzopardi was more cred- ible and therefore, the prosecution did not manage to prove its case. The Court of Criminal Appeal con- firmed that the two accused were guilty but reduced the fine to €150 and did not order them to pay €19,076, but allowed the complainant to seek a civil remedy if she wished. Court of Criminal Appeal unconvinced by prosecution's version of events mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Commission quotes wrong section of the law