Issue link: https://maltatoday.uberflip.com/i/191652
22 Opinion maltatoday, SUNDAY, 13 OCTOBER 2013 A statement may be still given to jurors, even if legal advice not allowed T he Criminal Court concluded in a judgement delivered by Mr Justice Lawrence Quitano on 4 October 2013 in Malta v. Anthony Cachia that, although the accused was not afforded legal advice before his interrogation, the statement he gave to the police could be given to the jurors as part of the evidence against him. The court had to give some warning to the jurors before their deliberations. Anthony Cachia is accused of attempted wilful homicide and possession of a firearm. Before the trial by jury began, Cachia presented a number of pleas, the first being that his statement was inadmissible Malcolm Mifsud mmifsud@mifsudadvocates.com.mt because he was not permitted to speak to a lawyer before being interrogated and so the witnesses in the trial could not make reference to it. Mr Justice Quintano made reference to the Constitutional Court judgements of 8 October 2012 in Charles Muscat v. Attorney General, which held that the accused The accused is to be assisted by a lawyer and the presiding judge will warn the juniors of relying only on the statement given to the police without taking into consideration the other evidence must go through the criminal process with all the procedural guarantees where all the evidence is produced, not only in the statements. The accused is to be assisted by a lawyer and the presiding judge will warn the juniors of relying only on the statement given to the police without taking into consideration the other evidence. The judge may also ask the juniors to discard the statement if it is proved that it was taken under violence or threats. As the court stated in the Charles Muscat judgement, it did not find that there was breach of a fair hearing when the statement was taken. In another judgement given by the Court of Criminal Appeal in Malta v. Carmel Saliba, the court stated that the statement forms part of the evidence that may be brought before the jurors. Other statements that the accused may have made to witnesses are also admissible evidence. The court also mentioned that the trial by jury must have the necessary guarantees. The defence counsel did not agree with this position; however the court held that it would retain this doctrine, which has been confirmed by the Constitutional Court and the Court of Criminal Appeal. The court would also follow articles 658 to 661 of the Criminal Code. It also pointed out that the accused was 52 when he gave the statement Other statements that the accused may have made to witnesses are also admissible evidence. The court also mentioned that the trial by jury must have the necessary guarantees and there was no evidence that giving the statement was to his disadvantage. The accused further pleaded that a report drawn up by a court expert was inadmissible, since all the court expert had done was to hear witnesses under oath, something that section 552(2) of the Criminal Code prohibits. Mr Justice Quintano held that although the law states this, there is no issue of nullity attached to it. This was also decided upon in an earlier judgement, Malta v. Carmel Saliba, delivered by the Court of Criminal Appeal on 2 May 2013, which held that these declarations taken by the court-appointed expert may be used by the prosecution and by the defence in order to check the testimony being given by a witness during the trial. Therefore, the court ruled that these declarations are to remain in the acts of the case. The accused further complained that a joint report by two ballistic experts, Brigadier Maurice Calleja and PS 154 Jesmond Cassar, were inadmissible because they discuss two different issues. On the one hand, there was a ballistic report, and on the other, a report on gunshot residue. The court held that although these are different sciences, they are very much related. The prosecution held that these tests were done together and the court-appointed experts work together on their findings. The fact that these experts drew up a report is not precluded at law. Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Increase in footprint sanctioned for structural reasons A Xaghra, Gozo, an application for the sanctioning of various structural works in an ODZ dwelling located on a ridge included a slight increase in the built footprint, since an additional rubble wall was constructed "illegally" along the exposed face of the ridge towards the rear of the plot. The request included the sanctioning of open balconies on the rear facade overlooking the valley. MEPA's Planning Commission objected to the increase in the approved footprint, stating that the additional wall abutting the ridge face amounted to insensitive urban development. The Commission further held that the works ran counter to the objectives of Structure Plan Policy RCO 22, which aim at protecting cliff edges. Moreover, the Commission ruled that the projecting long balconies (with railings) on the rear facade are visually obtrusive, resulting in a negative visual impact on a scenically sensitive area. According to the Commission, such development is in blatant conflict with Policy GZ-EDGE-2 Structural wall to protect 'fragile' rock face granted permission in ODZ Robert dwelling with illegally Musumeci constructed balconies MEPAwatch of the Gozo and Comino Local Plan, which aims to maintain traditional characteristics at the edge of urban settlements. In reaction, the applicant filed an appeal before the Environment and Planning Tribunal, insisting that the illegal wall was constructed to withstand the exposed "fragile yellow rock which is being continuously eroded by the weather". In the circumstances, the applicant maintained that a structural masonry fin wall (a wall with protruding pillars located at intervals) cladded with rubble had to be introduced with a view to containing any potential rock movement, thus preventing further damage and fragmentation of the rock face. The applicant highlighted that, in any case, the increase in footprint amounted to a mere 0.5 metres, which is equivalent to the aggregate width of the structural masonry and rubble cladding. Moreover, the applicant countered that the balconies respect the character, appearance, scale, massing and height of the locality. In its conclusions, the Tribunal observed that no details relative to the state of the cliff edge prior to the structural interventions were available. Having said that, the Tribunal did not rule out that the illegal wall was necessary from a structural point of view in order to prevent lateral rock movement at the cliff face. The Tribunal also observed that the illegally constructed balconies featured a design which was more or less similar to other projecting elements in the area. For these reasons, the Tribunal acceded to the applicant's request to sanction the illegal interventions. robert.musumeci@rmperiti.com