Issue link: https://maltatoday.uberflip.com/i/1075590
maltatoday 13 | SUNDAY • 27 JANUARY 2019 CULTURE ENVIRONMENT LAW & PLANNING THE Court of Criminal Appeal de- clared that a judgement is null and void since the First Court failed to list the Articles of Law when it found an accused guilty of all the charges. This was held in a judgement delivered by Madame Justice Consuelo Scerri Herrera on 22 January 2019 in The Police vs Keith Pace. Pace was accused of a number of charges concerning thefts that took place in June and July 2015, and he was also accused of breaching pro- tection orders, conditions of bail and being a recidivist. The prosecution asked that the personal guarantees imposed in bail be paid. The Magistrates' Court found the accused guilty and awarded a proba- tion order for three years and a treat- ment order for three years for drug rehabilitation. The Attorney General filed an ap- peal stating that this judgement is null and void or else to confirm that the accused is guilty but give a differ- ent punishment. With regard to the first ground of appeal, the Attorney General argued that since the accused admitted to all the charges, the Magistrates' Court should have listed all the Articles of Law when the Court found him guilty. The AG specified Article 579 of the Criminal Code concerning the breach of the protection order and conditions of bail and Article 23 of Probation Act. The First Court held that the breach of conditional discharge was admit- ted to, but the prosecution failed to present the judgement and did not provide details of the charges and therefore it could not deal with this charge. Furthermore, the AG argued that the Court never declared that the ac- cused was found not guilty that he was in breach of a conditional dis- charge and bail. According to Arti- cle 428(3) of the Crimial Code, these deficiencies should result into a null and void judgement. The second ground of appeal is based of the fact that the Magistrates' Court did not find the accused guilty of breaching conditional discharge of another case and the conditions of bail of a case which was still pending. The Court did not mention the rela- tive articles of law of these charges when passing judgement. The AG held that the accused had registered a plea of guilty to all the charges in- cluding these. Although the prosecu- tion did not present the judgements, all the Court should have done was to order the Registrar to pass on the judgements in question and there- fore, the same Court would have been in a position to decide even on this point. The Registrar of the Court could also have given the court a copy of the decree when the accused was given bail on another case. In another case where bail was given, the prosecution did give the Court a copy of the decree and therefore, the Magistrates' Court could have easily found the accused guilty of a breach of condition of bail. The AG also contested the pun- ishment awarded by the first court. Article 96 of the Criminal Court lays down that any person attack- ing a public officer may be awarded a prison sentence from six months to two years imprisonment and a fine between €4,000 and €10,000. There- fore, the Court is bound to give both a prison sentence and a fine and they are not alternative to each other. The Court should not have given a pro- bation order. The AG pointed out that Pace had various opportunities to reform himself, but did not grab to any other them. Furthermore, the accused had admitted to also being a recidivist, but the Court failed to mention it in the judgement. The Court of Criminal Appeal pointed out that Article 382 of the Criminal Court is an extremely im- portant article, as it lists the requi- sites of a valid judgement. It reads: "The court, in delivering judgment against the accused, shall state the facts of which he has been found guilty, shall award punishment and shall quote the article of this Code or of any other law creating the offence." Therefore, there are three ele- ments for a judgement to be valid. A judgement must mention the facts in which the accused is found guilty, the court must give a punishment and list the article of the law of the offences, the accused is found guilty of. Every judgement must have these elements. There are a number of judgements that give a strict interpretation to Ar- ticle 382 and consider that if one of the elements does not exist then the judgement is null. This was the case in Pulizija -v- Emanuel Azzopardi, where the Court had said that even the Court could raise this point. Madame Justice Scerri Herrera held that there were failings by the first Court. The various judgements have held that these failings render the judgement null. The Court then moved to declare that the judgement in this case is null and ordered that the case be sent back to the Magistrates' Court and the ac- cused will be put in the same posi- tion as before the Court pronounced judgement. Appeals Court annuls judgement after Court fails to list articles of law LAW AT issue was a development plan- ning application for the sanctioning of a paddock and the reconstruction of rubble walls surrounding a field lo- cated outside the development zone, in the area known as Landrijiet in the limits of Rabat. The Commission turned down the planning application on the following grounds: 1. The proposal failed to include the sanctioning of an illegal residence and a store which were located within the same site precincts; 2. The proposal was in breach of policy NWRS 4 of the North West Local Plan (NWLP) due to the presence of steel and alu- minium apertures which were not considered 'to retain and en- hance the character of the rural settlement'; 3. The proposed redevelopment and upgrading of the existing sta- bles would result in an increase in the floor area, hence in conflict with section 2(c) of policy 5.2 of the Rural Policy & Design Guid- ance (RPDG) 2014; 4. The paddock area went beyond the curtilage of the stables. In reaction, applicant lodged an ap- peal before the Environment and Plan- ning Review Tribunal, insisting that permission should have been issued. Applicant, now appellant, explained that he had submitted revised draw- ings so as to include the sanctioning of the unauthorised dwelling exten- sion, which extension would result in a dwelling area of 190sq.m, hence within the permitted 200sq.m-limit applicable for Category 2 dwellings. Moreover, appellant underlined that he was a part-time farmer, tilling seven tumoli of land in the area and the ag- ricultural store was built 'to cater for these needs'. With regard to the pad- dock, appellant underlined that the Agricultural Advisory Committee had found no objection to the proposal subject to it having a minimum area of 36 sq.m 'if not more than four horses would be kept'. In reply, the Authority acknowledged that applicant had, through his archi- tect, submitted revised drawings as he had maintained in his appeal, which changes were however not reflected in the proposal description. The case of- ficer underlined that the Tribunal could not decide on these amendments, as it would be acting as a Board of First In- stance. As to the paddock, the Author- ity reiterated that it was located beyond the curtilage of the stables, hence in conflict with policy provisions. In its assessment the Tribunal ob- served that the site was located within a Category 2 settlement. The Tribu- nal also confirmed that appellant had submitted fresh plans after the Com- mission had directed him to remove the illegal interventions. Nevertheless, these fresh plans indicated that the il- legal interventions would be retained, so much so that applicant had request- ed the Commission to sanction same. The Tribunal concluded that, in the circumstances, a new planning appli- cation was required. On this basis, the appeal was rejected. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Proposal cannot be changed after Commission sitting mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates