Issue link: https://maltatoday.uberflip.com/i/1163844
| SUNDAY • 8 SEPTEMBER 2019 maltatoday 15 CULTURE ENVIRONMENT LAW & PLANNING COURT has final say on whether bod- ily harm was grievous or not, regardless of doctors' medical opinion The question of whether an offence was slight or grievous is a question of fact. The decision is left in the hands of the judiciary to not only consider the doctors' opinion but to also assess the nature of the offence in light of all of the evidence given. This was held by the Court of Magistrates (Criminal Ju- dicature) presided by Magistrate Dr. Josette Demicoli in the case of Pulizija vs Antoine Saliba on the 2nd of Sep- tember 2019. The court heard the testimony of the accused, as well as the testimony of parte civile Joseph Borg regarding an altercation that occurred between them in August 2011. The defendant was charged with inflicting a wound of a grievous nature on Borg, as certified by a doctors' certificate. He was also charged with voluntarily disturbing the public peace and order. The first to give testimony was the accused's mother who explained that Borg was a tenant of hers who had been asked to evict the residence after failing to pay rent. That day, she and her hus- band went to the flat to clean it out and found that Borg only had a few things left in the apartment but that it was empty. Upon leaving the apartment they bumped into Borg on the stairwell and asked him to pay the rent due be- fore going back inside the apartment to collect the rest of his things. Although he said he would immediately go to get the money due and give it to them, two hours later he still had not showed up. They therefore decided to change the locks. The altercation arose that evening af- ter Borg called the defendants' mother asking her to send her son, the defend- ant, to the residence with a key so that he can get the rest of this things. She said in her testimony that she heard a number of men in the background and became fearful that her son would be involved in a fight, but nonetheless he agreed to go. Indeed, Borg had with him three of his friends. It was alleged by witnesses that the defendant refused to open the door to the residence until Borg paid the sum due to his mother for rent, and that this is how the fight began. The police inspectors who gave tes- timony explained that a number of weapons and tools were found on the scene such as pepper spray, a metal rod and farming tools. Both the accused and Borg were injured, and Borg's van was damaged. Upon being rushed to hospital by his father, the doctors' at Mater Dei hospital reported that Borg suffered deep cuts and fractures in his back which were considered to be of a grievous nature. Another doctor also testified that he has a cut in his eye measuring about three centimeters, and that this was classified as grave as not only was it a facial cut but one that could result in a permanent scar. The Court then heard the testimo- nies of the accused, the parte civile and other witnesses who were there on the scene. Although the parties gave different accounts of what happened, the Court concluded that it was obvi- ous that Borg did not have his friends with him that night to help him move the rest of his things out of the apart- ment as he alleged. It was clear that some sort of altercation was envisioned and/or provoked. However, the Court affirmed that from the CCTV foot- age produced as evidence by the pros- ecution, it is clear that the defendant threw the first punch, although he al- leged that the men threatened him and used pepper spray on him. The defense in fact held that the attack was one of legitimate self-defense against the four men. The court held that firstly this de- fense could not be accepted. It stressed that in accordance with local jurispru- dence and the Criminal Code Article 224, self-defense can only be used as when there is no other option for the protection of one's person or property. In this case, the defendant could have called the police and fled the scene. Nonetheless with reference to the grievous nature of the bodily harm, the Court held that according to the evidence the accused was proven to have punched the defendant once, as a result of which his eye was injured but no permanent damage or scars were caused. He was therefore charged with slight bodily harm, despite the doctors' reports saying that the wounds were grievous. He was acquitted on condi- tion that he does not commit any other offence within six months. He was ac- quitted from the offence of disturbing the public peace. Once correct procedure for termination of lease is used, then termination is enforceable LAW mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING AT issue was a permission for the "construction of additional floors overlying an existing block of apart- ments". The site was located within the residential zone of Marsascala. In deciding to grant the application, the Authority observed that the site was located within the development scheme and the additional floors were to be located within the permit- ted building envelope. Nevertheless, a number of tenants living in the same block objected to the permit and went on to lodge an appeal before the Environment and Planning Review Tribunal. In their rikors (appeal application), the ob- jectors put forward the following grievances: • According to the approved plans, the current lift will not reach the new roof levels. This implied that the tenants would be subjected to a considerable hardship 'brought about by the added flights of steps whenever access to the roof is needed'. Even though the installation of a lift called for 'some major internal modifications, among which the demolition and the re-installation of the staircase' , more so 'since it will also in- volve the relocation of the ten- ants for the duration of the works', a lift to serve the six storey block was a necessity; • The drawings were 'flawed', due to not reflecting the actual situation in the common parts; • The proposed balconies on el- evation were not uniform with the design of the 'present bal- conies'; • Once construction takes place as approved, the roof area will have to be shared among seven flats. This meant that the cur- rent tenants would have their current area reduced; • The current drainage system already experienced 'some difficulties', namely 'periodic blocking', due to the fact that the drains that carry the waste- water to the sewer lines were shared with the neighbouring block and another flat. Once the new units are built, the situation could only get worse. • The works will inevitably cause inconvenience 'over a protracted period', giving rise to damage to the air condition equipment at roof level which have to be shifted. In reply, the Planning Authority stood firm with its decision to issue the permit. In primis, it was high- lighted that the objectors occupied the flats on lease, hence not the property owners. Furthermore, the Tribunal was reminded that there was no statutory obligation on the applicant to render the complex fully accessible. As to the proposed façade design, the Authority thought that the proposed design would 'add visual interest in the façade', while noting that 'the verticality of the ap- ertures' would be retained. In its assessment, the Tribunal ob- served that the objectors were cor- rect in stating that no lift was being provided to reach roof level. The Tri- bunal, however, observed that there was no obligation on an applicant to provide a lift when the number of apartments is less than 30. As to the alleged erroneous plans, the Tribu- nal acknowledged that the drawings were not necessarily precise, how- ever the discrepancies were not seen to be material to the decision. With regard to the façade design, the Tri- bunal opined that the design was in harmony with the rest of the façade. As to the remaining grievances, the Tribunal noted that these were of a proprietary nature and should be addressed before a court of law. Against this backdrop, the Tribunal concluded that there was no reason to revoke the permit. Lift not needed when less than 30 dwellings