Issue link: https://maltatoday.uberflip.com/i/679878
48 maltatoday, SUNDAY, 15 MAY 2016 Opinion A Magistrate's Court held in a criminal case that for there to be harassment the prosecution have to prove that the victim has suffered more than one incident from the same perpetrators. This was decided on 9 May, 2016 by Magistrate Natasha Galea Sciberras in a case against two youths, whose names have been banned from publication. They were both charged with harassing and attacking another youth and causing damage to a car. According to the evidence, PS 115 received a report that some youths were fighting and damaged a parked car. A youth explained to the police that he was in the company of a few friends. Another group was sitting on the steps of his grandmother's front garden. They asked to pass, but instead were attacked. One youth received a slight injury to one of his eyes. The owner of the car testified that he heard his car alarm. He also heard noise coming from the street. When he went out he saw that two of his doors had been hit. An off duty police officer informed him that some youths were fighting. An eyewitness described what happened. They were in a front garden watching a DVD on a laptop. They were approached by a group of youths, and one of the two accused hit another. This witness confirmed that the car did suffer some damage. The victim confirmed this version of events and identified one of the accused as the person who hit him. Testifying, the accused explained that the victim had told them to lower the volume of music they were playing and by way of a joke they refused. This angered the victim and the accused attacked them. The victim threatened to smash the parked car. One of the accused held that he hit the victim in self-defence. Magistrate Galea Sciberras held that according to English and Maltese case law, harassment can take the form of words or actions. The prosecution must prove a course of conduct In a previous judgement The Police -v- Massimo Tivisini of 27 February, 2009, the court of criminal appeal held that this consists of repetitive and persistent action and not in isolation. In The Police -v- Raymond Parnis of 24 April, 2009, it was held there must be at least two occasions. The court immediately pointed out that in this case there exists one incident and therefore no course of conduct has been proved. As a result the accused were declared not guilty of the charge of harassment. Regarding the damage caused to the car, the court held that from the evidence produced the victim held that he was pushed on to the car, while one of the accused held that he was not involved in the fight and moved away. An eyewitness confirmed that the victim was pushed on to the car but could not identity who pushed him. However, the court believed that the accused were responsible, because the victim identified the shoes of one of the accused and the other involved in the fight. The court found that one of the accused caused the victim a slight bodily injury by hitting him on the face, while the other was guilty of a contravention by attacking the victim. As for the punishment, the court took into consideration that the damages on the case were paid. One of the accused was fined €85 and another was given a formal warning. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Harassment is harassment if there is more than one incident A planning application for the sanctioning of two maisonettes instead of one together with a basement and proposed roof extension at roof level was initially turned down by the Malta Environment and Planning Authority. The building is located within the Urban Conservation Area of Zebbug (Gozo). Essentially, the drawings show a three storey building and an overlying recessed f loor fronting a heavy road gradient. In its reasons for refusal, the Commission nonetheless held that the proposed development is unacceptable since it does not comply with the policy regulating access to garages. (In this case, the road width was insufficient.) Moreover, the Commission held that the proposal runs counter to Structure Plan policy UCO 10 in that the overlying extension would "adversely affect the views of the Urban Conservation Area and detract from the traditional urban skyline". In reaction, the applicant appealed the decision before the Environment and Planning Review Tribunal, insisting that the site was covered with a planning permit which was issued by the then Planning Area Permits Board (PAPB) in 1985. The applicant maintained that the original permit showed a semi basement garage. Further on, the applicant explained that the garage was "created" as a result of the sloping road. Finally, the applicant pointed out that the building does not exceed the established height limitation of the area and reminded the Tribunal that planning policies need not be interpreted "rigidly". For his part, the case officer underlined that the original permit featured a six course semi basement whilst acknowledging that "the existing two-metre high basement as built resulted from the slope of the road and was necessary to provide an even base for the rest of the building." Notwithstanding, the officer went on to state that the street width is 3.6 metres and does not satisfy the minimum set standards. (The standards provide that streets in front of garages should have a minimum width of 4.1 metres.) Concluding, the case officer observed that the proposed construction at roof level violates Structure Plan policy UCO 10, even though the overall building height was within the set height limitation. In its assessment, the Tribunal maintained that, in this particular case, safe vehicular access to and from the garage was possible once the area does not attract heavy traffic. Moreover, the applicant had also obtained approval from Transport Malta. Concluding, the Tribunal reasoned out that the building envelope respected the streetscape contrary to what the Authority had previously alleged. Against this background, the Tribunal ordered the Authority to issue a permit subject to a fine. 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 Building in Zebbug (Gozo) regularised Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Safe vehicular access to and from the garage was possible once the area does not attact heavy traffic Harassment can take the form of words or actions. The prosecution must prove a course of conduct