Issue link: https://maltatoday.uberflip.com/i/846769
46 maltatoday, SUNDAY, 9 JULY 2017 Opinion A magistrate's court held on 27th June, 2017 that a statement given to the police which was not corroborated by any other evidence in court was tantamount to hearsay evidence. This was held in a criminal court case Police vs Caruso Massimo and Pace Emmanuel presided by Magistrate Consuelo Scerri Herrera. The case revolves around a fight which took place involving inmates at Corradino Correctional Facility. One afternoon in May 2012, several correctional officers were alerted to a fight between inmates taking place in Division 6 of the facility. The fight had died down by the time that the officers intervened. Upon the arrival of the correctional officers, the victim of the fight, Jeffrey Cassar, informed the officers that he had just been attacked and he made particular reference to one particular inmate, Jousef Essesi. However, upon filing his report with the Police, Cassar alleged that there were three individuals involved, these being Essesi, Emmanuel Pace and Massimo Caruso. The officer filing the report eventually spoke to Pace and Caruso for further information on what had happened but Pace and Caruso informed the Sergeant that they had no information to divulge. During the court proceedings, several correctional officers testified to shed more light on the facts of the case. The officer taking the report testified that she had seen CCTV footage which captured the fight and identified Essesi, Pace and Caruso in the footage. One other correctional officer confirmed that that upon his arrival at the division where the fight broke out, the correctional officer opened the division and the victim of the fight came out running shouting 'Essesi, Essesi'. Therefore, the correctional officer confirmed that the victim alleged immediately after the incident that his aggressor was Essesi. Other correctional officers who were first to arrive on site all confirmed during their testimonies that Cassar immediately pointed to Essesi as his aggressor and did not mention any other names. When asked by the court whether any correctional officers had actually witnessed the fight, it resulted that nobody had done so. Inspector Jurgen Vella testified that he had visited Cassar in hospital to obtain his version of events on what had happened. Cassar, several days after the incident, informed the Inspector that he had been attacked by Essesi, Pace and Caruso for no reason whatsoever. Upon this information, Inspector Vella requested to see CCTV footage which captured the fight. According to Inspector Vella, this footage showed that the victim was caught unawares and, according to Vella's interpretation of the footage, the victim is seen being attacked by Essesi, Caruso and Pace. Upon being questioned by the police, Pace stated that he had seen the fight and tried to intervene to stop the fight. Caruso on the other had had stated to the Police that the victim had bumped into him and fell to the ground, but denied any knowledge of, let alone involvement, in the fight. Cassar testified twice during the course of the proceedings and on both occasions, he identified Essesi as his aggressor. The first time Cassar testified, he said that he knew that Caruso and Pace were in the vicinity of the fight but could not recall whether they had been involved or not. The second time he testified, he stated that Pace and Caruso had not done anything to him. Therefore, Cassar's testimony in court was now consonant with the version of events as given by him to the correctional officers immediately after the fight broke out, that is that he identified Jousef Essesi as his sole aggressor. Having considered all the evidence produced, the court concluded that as is ordinarily the case with criminal proceedings, the onus of proof rests on the prosecution. The prosecution's primary witness was the victim and in his testimony the victim had twice denied the involvement of Pace and Caruso. Several correctional officers who testified in Court confirmed that they had heard Cassar specifically mentioning Essesi as the aggressor and these officers had no knowledge of Pace and Caruso being mentioned by the victim. The only witness in court to cast a shadow on Caruso and Pace was Inspector Vella through his evidence on what he saw in the CCTV footage. In his view, the footage shows that Pace and Caruso had participated in the fight. He had also testified that during his interview, Cassar had referred to Pace and Caruso as his aggressors along with Essesi. The court proceeded to review the footage and stills presented by Inspector Vella and concluded that whilst it was evident that Caruso and Pace were in the vicinity of the fight, it did not result to the court that these had been in any way aggressive with the victim. Furthermore, it commented that the fact that Cassar's statement to Inspector Vella was not corroborated in court amounted to hearsay evidence. Joussef Essesi was charged separately from Caruso and Pace and had admitted to the charges against him. Pace and Caruso were found not guilty of the charges brought against them. Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates A full development permission was issued to the Civil Protection Department for the construction of a fire station and an underground rainwater reservoir. The site in question borders Triq il-Kanun, Sta Venera. The site is currently vacant, fronting a mix of residential, commercial and light industrial development. The Planning Directorate had held that the proposed development would contribute towards "a commitment to public safety", adding that the plot is "situated in a strategic location to reach the central part of Malta as well as the North Harbour Region". Following the Commission's decision, the Sta Venera local council lodged an appeal before the Environment and Planning Review Tribunal, insisting that the site was located within a residential area (as held under Policy CG 07 of the Central Malta Local Plan). The council went to observe that fire stations are not listed amongst the acceptable uses that could be accommodated within such areas. Furthermore, it was held that a fire station within a residential area "will not be in the interest of neighbouring residential units since the activity will entail the use of electrical/ mechanical equipment, may involve the combustion of materials and generation of prolonged percussion noises". To support this argument, reference was made to Structure Plan Policy BEN 1 which seeks to "safeguard the amenity of the area in relation to the existing uses". Even so, the council contended that the authority had failed to establish the traffic and parking carrying capacity of the surrounding transportation network. In reply, the authority reiterated that this development was favourably considered "in view of its contribution and commitment to public safety". Moreover, the case officer pointed out that a fire station should be located in a strategic location "to reach the central part of Malta as well as the North Harbour Region". But even so, the immediate site context was characterised by a mix of uses, notably commercial and industrial uses, notwithstanding that the applicant's site was strictly speaking located within a designated residential zone. The case officer went on to explain that "Malta's Civil Protection Department strives to reduce potential fire hazards all over the Island, and thus the construction of a fire station should be favourably considered in principle in order to cater for localities which at present are hard to reach due to potential traffic congestion in the least time possible, in case of a fire hazard." In order to address the concerns raised by the objecting residents (regarding potential nuisance), the officer explained that "when a fire engine vehicle goes out from the fire station, the beacon light and siren are not usually switched on as it leaves the fire station but are only switched on when it encounters traffic obstruction on the road and in case of extreme emergency". As a final point, the authority highlighted that the traffic impact would be "far greater" were the site to be developed as a residential complex. In its assessment, the tribunal referred to policy CG07 of the Central Malta Local Plan (of which reference was made by the local council in its appeal submissions). The tribunal observed that according to this policy, a land use which is omitted in that same policy may be favourably considered should there be overriding reasons to locate such uses within residential areas. In this case, the tribunal felt that an exception should be made. The tribunal held that, in any event, a fire station would generate less traffic impact than a residential complex of the same size. Consequently, the tribunal went on to confirm the permit. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law Robert Musumeci When a fire engine vehicle goes out from the fire station, the beacon light and siren are not usually switched on Malcolm Mifsud Police statement dismissed as hearsay evidence unless corroborated in court Permit for Santa Venera fire station confirmed