Issue link: https://maltatoday.uberflip.com/i/709569
46 maltatoday, SUNDAY, 31 JULY 2016 Opinion T he Magistrates Court in Gozo found Victor Camilleri guilty of fraud, misappropriation and falsification after it analysed in detail the elements of each of the charges brought against him. Magistrate Joseph Mifsud delivered his judgement on 21 July, 2016 in Police v Victor Camilleri. Camilleri was accused of fraud, misappropriation and falsification, amongst others. The case started after a report was filed by Margaret Vella. She told the court that Camilleri was engaged to take care of her family's financial investments since 2001 and alleged that the accused has misappropriated £7,400 in investments. They had investments in the National Savings Bank of Glasgow since 1980, which amounted to £7,400. The accused had given advice for this money to be transferred to Abbey National Bank. A cheque was received from National Savings Bank of Glasgow and given to the accused to open this new account at Abbey. They then received a letter from a certain Steven Greenwood confirming the deposit and signed a prepared letter that they will receive a pass book. This pass book never arrived and a reminder was sent. Abbey National Bank replied that there was no account in their name. Magistrate Mifsud held that the law imposes on the prosecution the onus to prove its case beyond reasonable doubt. The court then analysed the elements that compose the crime of fraud. For fraud to be present, there has to be a connection between the fraudster and the victim. There is need of an element of deceit and the intentional element by the person committing the fraud. The court quoted from the Police -v- Charles Zarb, delivered on 22 February, 1993 by the Court of Criminal Appeal, where the history of the Maltese legislation on fraud was explained and held that the Maltese legislation is taken by Sir Adriano Dingli from the Code of the Two Sicilies, which is identical to the French Code. Magistrate Mifsud quoted Judge Guze Flores, who insisted that the perpetrator must have the criminal intent to defraud and to procure a gain by means of deceit and this gain must be done at the expense of another person. If the person earns a legitimate profit, this excludes fraud. With regard to the charge of misappropriation, the court held that this is dealt with in Articles 293 and 294 of the Criminal Code. Art 293 requires that there be a complaint, however, Article 294 dictates that if the assets were given due to one's profession, trade or administration the police can prosecute independently of a complaint. The elements of misappropriation are that there must be a voluntary transfer of assets to the perpetrator. There must also be that asset to be used for the perpetrator's advantage or else sold or destroyed. In the Police -v- Enrico Petroni et decided on 9 June, 1998, the court held that the perpetrator must receive the money or goods with the obligation to return them, but instead uses that money or goods to his/her own advantage. The court explained that this is a crime of an abuse of trust. On the charge of falsification, the court explained that there are different forms of false documents. In this case, there was the creation of a false letter on 10 October, 2002. In a civil case, the accused was already ordered to refund the Vellas Lm4,701 and in these proceedings it was declared that he in fact paid part of this money. In sentencing, Magistrate Mifsud held that it was more appropriate for the accused to not only pay the victims their money back but also give something to society. Then he ordered the accused to give 100 hours of community service. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Court lists elements to find accused guilty of fraud O n the 22nd June, 2016, Flimkien ghal Ambjent Ahjar along with a group of Tigné residents filed an application before the First Hall of the Civil Court against the Planning Authority, requesting the issue of a prohibitory injunction against the Planning Authority in order to stop the latter from determining a 2005 planning application for the replacement of the former Union Club (in Sliema) with a 38-storey tower. The proposed designs also show a number of residential and commercial outlets. Indeed, the planning application is being recommended favourably despite a number of strong objections. In their application before the Court, the plaintiffs held inter alia that the applicant had failed to submit a social impact assessment and an urban character appraisal as required by the recently approved Floor to Area Ratio Policy. In reply, the authority insisted that plaintiff's request should be turned down. The authority's lawyer explained that the Planning Board was mandated by law to determine development planning applications. The lawyer went on to state that the board may choose to overrule the conclusions contained in the case officer's report. The authority concluded by stating that once the board delivers a decision on the planning application, the plaintiffs have other legal remedies to appeal the outcome (namely, an appeal before the Environment and Planning Review Tribunal and a subsequent appeal before the Civil Court of Appeal (Inferior Jurisdiction) on a question of law). In its assessment, the court stated that the plaintiffs had sufficient interest in the case under examination, noting that they had formally objected to the planning application. Besides, the plaintiffs resided in the vicinity of the proposed tower. Having said that, the court stressed that a precautionary warrant is an extraordinary legal remedy intended to prevent someone in doing something which would cause prejudice and damages to the plaintiff. Plaintiff must therefore convince the court about the practical necessity of such warrant in the given circumstances. At the same time, the court must establish that the plaintiff is entitled to such right (and therefore 'protection') on a prima facie basis. In other words, the plaintiff must demonstrate to the court that in the absence of such warrant, his rights would be compromised irreversibly. In this case, the court held that the plaintiffs had certainly a prima facie interest once it transpired that they resided in the vicinity of the proposed tower. Nevertheless, the court observed that the Planning Board was not bound to accept the case officer's positive recommendation. The court highlighted that it had no remit to decide a planning application, adding that the Planning Board is indeed entrusted to determine planning applications by law. Concluding, the court observed that plaintiff's request failed to satisfy the proportionality test and decided that the tower planning application should be duly determined by the Planning Authority. 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 Townsquare tower – Planning Authority should decide Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Court has no remit to decide a planning application A promised pass book never arrived and a reminder was sent. Abbey National Bank replied that there was no account in their name