Issue link: https://maltatoday.uberflip.com/i/673696
49 maltatoday, SUNDAY, 1 MAY 2016 Opinion A Magistrates Court dismissed the merits of a case regardig theft of electricity due to the case having become time-barred. This was decided by Magistrate Consuelo Scerri Herrera in The Police vs Gaetano Falzon decided on 26th April, 2016. Gaetano Falzon was accused of having tampered with an electricity meter installed at a Bugibba restaurant which he ran. The alleged theft took place between 26th July, 2000 and 26th July, 2005. The case came to light when in July, 2005 Enemalta employees conducted a surprise inspection at the establishment which at the time was run by the accused and they had found that the electricity meter installed in the restaurant's basement had been clearly tampered with as the protective seals had been broken. Additionally, the restaurant was also being supplied by an unmetered electricity cable. A court-appointed expert confirmed the finding of an unmetered cable, saying that the unmetered cable was probably an inside job by an Enemalta employee, as it required the temporary suspension of the supply of electricity in the area. Upon the discovery of the tampered meter, Enemalta replaced the old meter with a new one. The court heard that the loss in revenue was estimated on the basis of the discrepancy in consumption recorded during the five-year period when the alleged theft took place, and the consumption recorded months after the new meter was installed. After the conclusion of a magisterial enquiry spanning over two years, the Police decided to charge the accused with the principal charge of theft of electricty which was aggravated by the amount, the means and the time of theft. Aggravating circumstanes at law imply any circumstances attending the commission of a crime which increases its injurious consequences, but which is above and beyond the essential constituents of the crime itself. Establishing an aggravating circumstance would hence result in an increase to the standard penalty of theft. Whilst the prosecution rested on the evidence brought forward during the court proceedings, the defence claimed that the aggravating circumstance relating to the time of the offence had not been sufficiently proven. The defence continued to explain that in the event that the accused was found guilty of theft accompanied by the remaining aggravating circumstances, the maximum penalty which the Court could have imposed was a maximum of three years imprisonment. The implication was that actions carrying such sentence are barred by a lapse of five years. In the court's judgment, Magistrate Scerri Herrera remarked that the prosecution had managed to prove its case and managed to convince the court that the theft was aggravated by the means since the tampered meter was not registering at least one third of the consumption of electricty at the premises. The unregistered electricity was valued at over €45,000 thereby constituting aggravated theft by the amount. However the Court noted that the aggravation of time was not proved in any way by the prosecution. The Court agreed with the defence's argument that had it found the accused guilty of theft of electricity aggravated by the means and the amount, the ensuing penalty could be of a maximum of three years imprisonment. The Criminal Code states that a criminal action is barred by the lapse of five years in respect of crimes liable to imprisonment for a term of less than four years but not less than one year. The potential punishment in this case fell within such parameters. Since the offence was deemed to have been consummated on the 26th of July 2005, the action had to be brought within five years from such date. The Court remarked in its judgment that despite the fact that the magisterial enquiry was concluded on the 26th of July, 2007 and that the enquiring magistrate had ordered the Commissioner of Police to institute proceedings against the accused, the prosecution registered its case against Mr Falzon on the 25th September, 2013. Therefore, more than five years had elapsed between the incident and the filing of the charges. In the circumstances, the Court had no option but to abstain from considering the merits of the case and the case was dismissed. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Acquittal of theft of electricity due to late filing of charges against accused A 2014 planning application, initially contemplating the sanctioning of a room "as built" together with a proposed aviary was turned down by the Environment and Planning Commission. The site in question relates to a field located in Wied Ghollieqa (San Gwann), very close to the development zone. The proposed drawings show an aviary consisting of lightweight and visually permeable material. In its refusal report, the Commission immediately highlighted that the application does not address the pending site illegalities – namely the presence of two rooms, a barbecue area, a paved area, a gate and boundary walls. The Commission thus maintained that the proposal could not be processed until the illegal development is first sanctioned or removed. Further on, the Commission held that, in any event, the "sanctioning and conversion of the existing structures into an aviary goes beyond the provisions for animal enclosures considered in terms of policy 5.1B of the Rural Policy & Design Guidance (2014)", particularly due to the fact that the site in question lies within a scheduled area. In fact, the site is located in an Area of Ecological Value (where further human intervention is not, at least in principle, desirable). Concluding, the Commission stated that the aviary does not qualify as a structure or facility which is essential to agricultural, ecological or scenic interests. As a reaction, the applicant appealed the Authority's decision before the Environment and Planning Tribunal. In his submissions, the applicant argued that prior to the decision, he had submitted a request to limit the interventions to the restoration of the existing room. Notwithstanding, the appellant contended that the Commission turned down his request and went on to refuse the application, basing its reasons on the initial request. On his part, the case officer observed that the existing "structures and interventions are more akin to an urban/ recreational type of development that is not essential to protection of agricultural areas or in the spirit of genuine agricultural practice." Finally, the officer reiterated that applicant had not specifically requested to sanction the site illegalities. In its assessment, the Tribunal immediately observed that it could give a decision on the merits of the case notwithstanding the opposition of the Authority, the latter having insisted that the applicant failed to request that illegalities be sanctioned. Indeed the Tribunal found that, during the application process, an enforcement officer had noted that the applicant's proposal "addresses all illegalities found on site" in contrast with what was earlier purported. As regards the merits, the Tribunal however held that the applicant could not request the Commission to change his proposal on the day of the decision. On this basis, the Tribunal came to the conclusion that the Commission was correct in its decision. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree. Robert Musumeci Aviary in Wied Ghollieqa turned down Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Applicant may not request to change proposal on the day of the decision