Issue link: https://maltatoday.uberflip.com/i/240181
47 Opinion CCTV solves bird theft M agistrate Dr Edwin Grima found Hurbet Gatt guilty of simple theft of four birds after positively identifying the accused from a CCTV footage. This was decided on 11 December 2013 in the names of The Police (Inspector Nikolai Sant) –v– Hubert Gatt. Gatt was accused that on 16 and 19 November 2010, he committed a theft of four birds from a San Gwann pet shop, which theft was aggravated by value. Magistrate Grima examined the evidence produced by the prosecution which was principally a CCTV film taken at the shop on 19 November 2010 and photos taken from a footage of the same CCTV on 15, 16, 18 and 19 November 2010. There is no other evidence that implicates Gatt. The owner of the pet shop, Anthony Calleja, testified that the accused had stolen four birds on two occasions. He noticed this when he looked at the tapes of the CCTV. The police carried out a search of Gatt's residence and found on the roof of the apartments and behind the water tanks two cages with two birds each. The shop owner identified them where returned to him, from their colour and the species which were rare in Malta. These birds were never formally produced as evidence, since no photos were taken and presented Malcolm Mifsud mmifsud@mifsudadvocates.com.mt in court. Magistrate Grima held that due to this blunder, the Court could not make use of the theory of recent possession, which is based on common sense that if a person is found in possession of items which were recently stolen, then that would be sufficient evidence to find that person guilty of theft or of being in possession of stolen goods. The Court further held that the police had found a number of birds at his residence, however, found these four birds hidden on the roof. The accused had explained to the court that he had taken these particular birds on the roof for them to enjoy the sun, however, the Court did not believe him because they were found in a bag, which shielded them from the sun. Since the birds were not produced as evidence, the Court could not establish beyond reasonable doubt that those birds were in fact the birds which were stolen. As regards their value, the owner indicated that they were worth €200 each, but no further documentary evidence was produced to substantiate this. In his police statement, the accused denied stealing the birds. He confirmed that he was present in the shop and the CCTV footage was of him. He held that he visited the shop to sell birds to Calleja. There was an agreement on the price and he left the birds in a cage. The next day he went to collect the money, but Calleja informed him that the maltatoday, SUNDAY, 12 JANUARY 2014 person to whom they were sold did not collect the birds. The next day he returned to the shop, but while he was waiting, the police turned up and arrested him. The only evidence was the CCTV footage and the Court used the guidelines of identification used by the English Courts found in a judgment R –v- Turnbull, but also adopted in Malta by means of a Court of Criminal Appeal judgment Il-Pulizija –v– Stephen Zammit of 16 July 1998. In the Turnbull case the court held: "First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words." Magistrate Grima quoted from other English jurists on the principles of identification of the accused and the dangers of identification by witnesses. However, the Court also argued that the accused himself confirmed his identity in the photos and the footage. In her judgment, Magistrate Grima commented judging by the film taken, the accused was acting suspiciously and concluded that he did in fact steal the birds. Since no value was given to the birds, she found that she could only find Gatt guilty of a simple theft. Since he had an almost a clean criminal record, the Court awarded him a two-month prison sentence suspended for a year. Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates The police carried out a search of the accused's residence and found two cages with two birds each on the roof of the apartments and behind the water tanks Tribunal orders applicant to demolish part of balcony A planning application entitled, 'Internal alterations and amendments to approved elevation and sanctioning of balcony at first floor level' was turned down by the Environment and Planning Commission. In its assessment, the Commission observed that the proposed balcony is unacceptable since its 'outer face is not at least 0.75 metres away from the boundary line of the party wall nearest to the balcony' (Policy 7.2 of Development Control Policy & Design Guidance 2007). Indeed, this requirement is also found in the Civil Code (Article 443 of the Civil Code states that the distance between the external line of that side of the balcony or other projection, which is nearer to the party-wall, to the internal line of such wall shall be at least 76cm). The Commission further maintained that a party wall was being created at first floor level, which, in turn, was incompatible with the urban design and environmental characteristics of the area. The Commission therefore concluded that the proposal did not seek to maintain the visual integrity of the area as required by Structure Plan Policy BEN 2. In response to the said decision, Policy 7.2 of Robert Development Control Musumeci Policy & Design Guidance 2007 is essentially a MEPAwatch reproduction of Article 443 of the Civil Code applicant lodged an appeal before the Environment and Planning Tribunal, stating inter alia that in the present case, the adjacent building belongs to the same applicant and hence distance requirements did not instill concern. To support his argument, applicant argued that 'in every residential block being built, when the whole apartments appertain to the same owner', MEPA does away with such distance requirements. In addition, applicant observed that the proposed development lies between two existing buildings, as a result of which, the party walls were not 'visually exposed'. On its part, the Authority reiterated that the proposed sanctioning includes a balcony at first floor level that spans along the entire façade. The case officer pointed out that Policy 7.2 of the DC2007 requires that projecting balconies are to be located at least 0.75m from the nearest boundary line of the party wall. Additionally, MEPA's case officer maintained that "the balcony at first floor will be entirely enclosed from the side by a wall, which is intended to support the balcony at second floor", adding that such arrangement is considered to be visually intrusive and inappropriate. As a final point, the officer remarked that it is "utterly incorrect" to state that the Authority does not enforce this policy when the whole block belongs to the same owner. In its assessment, the Tribunal considered that Policy 7.2 of Development Control Policy & Design Guidance 2007 applies regardless of the ownership of the party wall. In the circumstances, the Tribunal held that the balcony is to be partially demolished so that a distance of 0.75 metres between the outer face of the balcony and the nearest party wall is achieved in line with planning policy. Applicant was further requested to visually reinstate the "disturbed" structural parts (as a result of the demolition operations) using masonry cladding. robert.musumeci@rmperiti.com