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50 maltatoday, SUNDAY, 16 AUGUST 2015 Opinion T he Court of Criminal Appeal, presided by Mr Justice David Scicluna held that the offence of causing fear of violence cannot be upheld if it is proved that there was just one incident. The prosecution have to prove that there existed a pattern of conduct by the accused. This was decided on 12 August, 2015 in Il-Pulizija –v- Andre Cassar. Cassar was charged with seven offences, which were causing bodily harm to a person of his household, attempted grievous bodily harm, causing slight bodily harm, driving after consuming alcohol, causing fear of violence to the same person, stalking and as a public officer committed an offence. A Magistrate's Court in January of this year found Cassar guilty of four of the offences, these being causing bodily harm to a person of his household, causing slight bodily harm, causing fear of violence to the same person and, as a public officer, committed an offence. The appellant was not found guilty of the remaining offences and was fined €6,000 and had a protection order issued against him. Both the defence and the prosecution filed an appeal on this judgement. The Attorney General held that Andre Cassar should have been found guilty also of driving after consuming alcohol. According to Article 15E of the Traffic Regulations Ordinance: 1) In order to determine whether a person has committed an offence under articles 15A and 15B(1) a Police officer may require such person – (a) to provide a breath specimen or specimens for analysis by means of the approved device, according to regulations made under this Ordinance, and the result so obtained shall be admissible in evidence in any proceedings for an offence under articles 15A or 15B(1). The results of the analysis shall be presumed correct unless the contrary is proved; or (b) to provide a specimen or specimens of blood and urine for laboratory analysis, which shall take place at an approved laboratory, according to regulations made under this Ordinance, and the opinion of the analyst in that laboratory and the results of the analysis shall be admissible in evidence in any proceedings for an offence under articles 15A or 15B(1). The results of the analysis shall be presumed correct unless the contrary is proved: Provided that the Police may in addition to the specimens of breath require also a specimen of blood or two specimens of urine. Mr Justice Scicluna held that although the Breath Alcohol Test Record was presented as evidence in court, this was not confirmed by the officers who had operated the breathalyser. When Lion Intoxilyzer 6000 is used there is need of two samples. When Lion Intoxilyzer 8000 is used one sample is sufficient. The Report did not mention which instrument was used. The Court turned down the AG's appeal. Cassar held in his appeal that there was no sufficient evidence for him to be found guilty of the offences he was found guilty of. With regard to causing fear of violence, Cassar submitted that what has to be proved is a course of conduct and not one particular incident. This was held in a previous decision Il-Pulizija –v- Raymond Parnis of 24 April, 2009. He also quoted from the UK Protection from Harassment Act, 1997 which states: "A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions." Blackstone's Criminal Practice also states: How separate the two occasions must be remains to be seen. The nature of stalking, the activity which primarily created the need for the new offences, might mean that the occasions are likely to be on separate days, although it may be possible to differentiate activities on one day where they can be viewed as not being continuous. The further apart the incidents, the less likely it is that they will be regarded as a course of conduct… It was recognised, however that circumstances can be conceived 'where incidents, as far apart as a year, could constitute a course of conduct'. The type of incidents would be those intended to occur on an annual event such as a religious festival or a birthday…". The courts are to examine the circumstances of the case, which may vary from one case to another. Cassar argued that he was found guilty of this offence merely on the basis that he caused slight injuries to the victim. He had driven a car towards her but stopped, but hit her and caused a slight injury. No evidence was produced to show that he had a generic intent to cause harm. The Court of Appeal pointed out that the charge issued against Cassar was for a specific date and did not make reference to any previous occasions and therefore, it was impossible for him to be found guilty of causing fear of violence under Article 215B of the Criminal Code. On the other hand the evidence produced showed that Cassar had intended to cause an injury to the victim and the Magistrates' Court was correct to find him guilty. Mr Justice Scicluna then held that Cassar was not guilty of causing fear and that the charge of causing slight bodily harm was absorbed in the first charge. The Court reduced the fine from €6,000 to €1,000 and confirmed the rest of the judgement. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application for the construction of four industrial garages in the limits of Xewkija was submitted to the Malta Environment and Planning Authority, following which a detailed case assessment was prepared, recommending outright refusal. In turn, the Planning Commission turned down the applicant's request, concluding inter alia that "the proposed industrial development does not meet the principles and criteria set out in Structure Plan Policies RCO4 and RCO8 for development in that the proposed structures or facilities are not essential to agricultural or scenic interests." In addition, the Commission held that the proposed works would result in the take up of agricultural land, thus being in conflict with Structure Plan Policy AHF5 which essentially seeks to protect land of agricultural value. In reaction, the applicant appealed the Commission's decision before the Environment and Planning Tribunal. In his appeal, the applicant argued that the application was submitted "after a public consultation meeting held by officials of the Local Planning Unit on the initiative of the GRTU to discuss the Open Storage Policy". The appellant highlighted that MEPA's technical officers had indeed suggested that he proceeds with the application. Furthermore, the applicant contended that "in Gozo there is a lack of small industrial garages and that consequently most of these garages are still located and operate within residential areas", adding that "the approval of this application will help to alleviate such a problem". On a separate note, the applicant stated that the site is already committed and hence the present skyline would not be disturbed or disrupted by reason of "mass or location". In a concluding note, the appellant made specific reference to a letter released by the Department of Agriculture, which in turn had concluded that "no agricultural land is to be affected". The Authority nonetheless reiterated its position against the proposal, insisting once again that the interventions constitute piecemeal sprawl of industrial development into undeveloped land outside the development zone. The case officer also pointed out that two of the garages were being proposed within an area which was earmarked for landscaping in a previous permit. In its assessment, the Tribunal confirmed that the applicant was proposing four garages in total, two of which were to be located on virgin land. The Tribunal therefore concluded that the proposal may be accepted on condition that the two garages (which were to occupy a soil area) are eliminated from the proposal and an adequate landscaping scheme is implemented. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in Law. Robert Musumeci MEPAwatch Tribunal allows industrial garages on "committed" land Download the MaltaToday App now The offence of causing fear cannot be proved with one incident