Issue link: https://maltatoday.uberflip.com/i/717204
46 maltatoday, SUNDAY, 21 AUGUST 2016 Classifieds A court presided by Magistrate Joseph Mifsud explained in its judgement of 17 August, 2016 in The Police v Eebis Getu, that the charges of a false criminal report and calumnious accusations may be factually similar, however, from a legal point of view they are two separate and distinct charges. The accused, Eebis Getu was charged with having filed a false police report and with not obeying a legitimate order. She admitted these charges. The court examined the facts of the case where the accused is an Ethiopian national who arrived in Malta on 28 July, 2016. She filed a report with the police that she was kept prisoner by a Kuwaiti family in Malta for five days and she had managed to escape for fear of her life. She later admitted to the police that this was a lie and explained that she had met a Somali person who gave her advice to invent this story in order to be given refugee status. She further explained that she did live with a Kuwaiti family, who had tied her, but this family never came to Malta. She explained that she worked for this family but was locked up and beaten. She arrived in Malta with a false passport, since her passport was kept by the Kuwaiti family. She bought the false passport in exchange for a gold chain. The court then analysed the legal points of this case. Article 110(2) of the Criminal Code reads: "Whosoever shall lay before the Executive Police an information regarding an offence knowing that such offence has not been committed, or shall falsely devise the traces of an offence in such a manner that criminal proceedings may be instituted for the ascertainment of such offence, shall, on conviction, be liable to imprisonment for a term not exceeding one year." Professor Mamo explains this crime as one which misleads the administration of justice and which causes an inconvenience and expense to the police. This is different from calumnious accusations, which do not have a specific accusation against a specific person and no intent to cause an innocent person to be unjustly convicted. The court also quoted from a 1998 judgement The Police -v- David Mizzi, where the Court of Criminal Appeal held that calumnious accusations may be divided into an actual and an indirect simulation and a verbal and direct simulation. The former is when evidence is falsely created to have criminal proceedings initiated. Verbal or direct simulations are when someone files a police report, knowing that it is false. The court gave examples of an anonymous bomb threat or the breaking of a quarter window to give a false theft report. In calumnious accusations there is no specific person in sight. Professor Mamo further explains in his Notes on Criminal Law: "The specific malice of this crime consists in the intent to deceive or mislead justice by denouncing or making appear an offence which is known not to have been committed and not in the intent to harm, directly by the simulation, any other person". The court concluded that from the evidence produced it is clear that when the accused filed the report, she knew very well that it was a false report. Regarding the second charge of not obeying a legitimate order, the court observed that a legitimate order is considered to be such when on the face of it that order is legitimate. The court noted that in this case the police wasted four days trying to find the Kuwaiti family. In passing judgement the court took into consideration that the accused admitted to the charges immediately and also that she did what she did in order to be with her husband in Malta. Magistrate Mifsud referred to what Pope Francis said last June, where today's information technology brings suffering of others instantly, but we also become immune to tragedies and sufferings. Sufferings have a face, that of a baby, family, the young and the old. Furthermore, the Pope said that compassion is not the pity and full stop but to join the suffering and to take a risk for these people in need. The court commented that although it believes in what the Pope said the accused should have applied for protection at the Refugee Commission. The police wanted to assist her in filing this application, but she at first insisted on her story. The court wanted to give her a chance to apply for asylum and therefore handed down a year's imprisonment suspended for two years. Dr Malcolm Mifsud, partner, Mifsud & Mifsud Advocates False criminal report and calumnious accusations are separate offences A n application for structural alterations together with a roof extension on a property in Triq is-Sirena, Senglea, was refused by the Environment and Planning Commission on a number of counts. In essence, the reasons for refusal centred around the alleged visual impact. In fact, the Commission held that the proposed development runs counter to Policy UO 2.4 of the Strategic Plan for Environment and Development in that it would adversely affect the setting of the Urban Conservation Area and detract from the traditional urban skyline. Moreover, it was opined that the proposed development would detract from the overall objectives of the Strategic Plan for Environment and Development to improve the townscape and environment in historic cores and their setting. Reference was also made to Policy UO 2.1a and Policy TO 8.7 of the Strategic Plan, which seek to ensure that any new development in Urban Conservation Areas is compatible with the existing character and urban design of the area. Finally, the Commission maintained that the proposal is not sympathetic with the adjoining buildings in terms of its fenestration, as a result of which, the design would jeopardise the visual integrity of the area. Following the Commission's decision, the applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the conclusions reached by the Commission were a matter of 'subjective opinion'. The applicant contended that his intentions were 'to convert an existing vacant dwelling unit into a contemporary habitable dwelling'. He further contended that the final design product would be tantamount to the regeneration of Cottonera once the existing bronze aluminium apertures on the facade are replaced with traditional painted timber apertures and 'the existing unsightly additions to the original structure' are removed. Moreover, the applicant deemed it fit to point out that the Cultural Heritage Panel, who were consulted during the process, had found that his proposal 'does not negatively impact the existing sky line.' Concluding, the appellant highlighted that the proposed roof structures would not be visible from the adjoining street, considering that 'the area is characterised by evident change in levels.' In reply, the Authority reiterated that the proposed building envelope would not safeguard the architectural character of the building, thus resulting in a negative impact on long distance views. The Tribunal was reminded that the premises are located 'at the highest part of the Senglea peninsula opposite Fort St Angelo', whilst keeping in mind that Senglea is scheduled as an Area of High Landscape Value as per G.N. 133 of 2001. In its assessment, the Tribunal observed that the Cultural Heritage Advisory Committee found no objection to the appellant's proposal. Moreover, it was noted that the roof extension would as a matter of fact 'seal' a blank party wall. The Tribunal concluded that the proposal would indeed result in the 'regeneration' of an otherwise abandoned building. Against this background, the authority was ordered to issue the permit on condition that no roof projections are constructed beyond the receded building line. robert@rmperiti.com Dr Musumeci is a warranted perit and holds a Degree in Law Robert Musumeci Authority ordered to issue Senglea extension Malcolm Mifsud mmifsud@mifsudadvocates.com.mt accusations are separate offences mmifsud@mifsudadvocates.com.mt accusations are separate offences accusations are separate offences Permit issued without roof projections beyond the receded building line