Issue link: https://maltatoday.uberflip.com/i/860911
46 maltatoday, SUNDAY, 13 AUGUST 2017 Opinion A judgment is not null and void if the Court fails to mention all the articles of law in its conclusion, but are mentioned in other parts of the judgment. This was decided by Chief Justice Silvio Camilleri in the police -v- John Vella on 3 August, 2017. John Vella was accused of the theft of a winch, causing voluntary damage to property belonging to Mgr Joseph Vella Gauci, exercising a pretended right and causing violence to the property. The Magistrates' Court found Vella guilty of all the charges and ordered him to pay €575 to Mgr Vella Gauci and fined him €1,000. Vella appealed the judgement and claimed that the best evidence was not produced and there were serious doubts of Mgr Vella Gauci's recollection of when the incident took place. Another ground of appeal was that Article 85 of the Criminal Code was not mentioned in the conclusion of the judgement and therefore, the judgement was null. Vella also claimed that the court did not consider his right to undo an illegality that was taking place when the boundary was on the roof was being built and this was ordered in a warrant of prohibitory injunction issued by the civil courts. The background of the case goes back to November 2011 when the police received a report that a vehicle was blocking the access to a house in Victoria, the property of Mgr Vella Gauci, which is underlying the property of John Vella. When the police arrived, they discovered that three courses had been removed from the roof boundary wall. The suspicion fell on Vella. The same report mentioned that a winch used by the workmen working on the Monsignor's property was missing. It was seen last the night before the report was lodged. Vella denied to the police that he approached the property and that he was the only one who had access to where the winch lay. He claimed that it was impossible for him to remove the winch by way of his property. The Court of Criminal Appeal first dealt with whether the judgement was null under Article 382 of the Criminal Code which reads: "382. The court, in delivering judgment against the accused, shall state the facts of which he has been found guilty, shall award punishment and shall quote the article of this Code or of any other law creating the offence." The Court held that the law is requiring the court when passing judgement to quote the articles of law when finding the accused guilty. In the judgement subject to the appeal, the Court mentioned article 85 of the Criminal Code, which is the charge on pretended rights, and then explained its reasoning. It then concluded that the accused was guilty of the third charge. Mr Justice Camilleri held that this satisfied the law, although the article was not mentioned in the conclusion of the judgement. The law does not mention where it should be mentioned but stipulates that it has to be mentioned. It is sufficient that the article be mentioned when the court is reasoning its decision. The Court then went on to discuss the other grounds of appeal, which criticized the first court on how it decided on the facts of the case. The Court of Criminal Appeal pointed out that it should not disturb the first court's consideration of the evidence, unless it is clear that it could not arrive to the conclusions it had reached. With regard to the charge of theft of a winch, the Court held that the workmen of property number 8 had noticed it had gone missing. The roof is accessible by means of a ladder. There was a dispute, since the appellant argued that the roof was his, however, he denied touching the winch and blamed the workmen for taking it. The Court held that the only evidence that pointed to Vella was circumstantial evidence, which is not conclusive. The defence tried to nit-pick on small inconsistencies of Mgr Vella Gauci's testimony who referred to a Saturday, when it was in actual fact a Sunday, however, the Court held that the documentary evidence was sufficient to establish these details. It turned out that where the winch was placed had an open access and did not exclude other persons from being able to go on the roof and stealing the winch. The Court of Criminal Appeal decided to overturn Vella's conviction of theft and found him not guilty. With regard to the charges of voluntary damage to property the appellant had admitted to removing the courses of the wall in his statement and his conviction was upheld. As to the charge of pretended rights Vella explained that he was under the impression that he had a right to remove the course of the wall. However, the Court pointed out that this had to be done with the Court's intervention. There are civil cases. The crime of pretended rights is not against property rights, but it is against the administration of justice, where the police may take direct action and does not require a complaint. The Court then moved to declare Vella not guilty of theft, but confirmed him guilty of the other charges. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates T he Planning Commission was asked to decide upon a planning application for various structural additions and alterations to an existing building so as to increase the commercial area of a licensed shop at ground floor level and convert the overlying dwelling to an office. The building in question is located within the residential area of Tarxien. Following a thorough analysis, the Commission found that the applicant's request violated a number of planning policies and consequently turned down the proposal. To support its decision, the Commission held that both the 'extended' shop and overlying office were excessive in scale, thus in breach of the provisions of policy SMHO 02 of the South Malta Local Plan and SPED Urban Objective 3 which aims to protect and enhance the character and amenity of urban areas.' In reaction, the applicant took his case before the Environment and Planning Review Tribunal, insisting that the Commission's decision should be reversed. In his appeal submissions, the applicant argued that his proposal would indeed result in 'visual improvement'. He said that in such cases, 'reason should prevail over the blind adherence to the dimensions dictated in policy SMHO 02.' It was further explained that the existing building had a self- imposed facade setback which 'presents undesirable visual impact to the streetscape' so that 'the only solution available to mitigate this situation is to extend the shop towards the road'. Whilst acknowledging that increasing the commercial area was in breach of policy, the applicant maintained that the end result would provide a neater solution and better visual massing with interesting architectural features. For its part, the Authority reiterated its previous concerns, contending that 'ameliorating the visual impact of the site' was not 'enough' to depart from established policy. The case officer representing the Authority pointed out to the Tribunal that the maximum permitted f loor area for shops and offices in residential areas should not exceed 75 square metres. Concluding, the officer warned that the proposal would create a shortfall of parking spaces to the detriment of neighbouring residents. This, according to the case officer, went against SPED Policy U03 which aims to protect and enhance the character and amenity of urban areas. In its assessment, the Tribunal observed that the area fronting the shop, now to be roofed, formed an integral part of the already ongoing commercial activity at ground f loor level. On the other hand, the Tribunal noted that the applicant was no longer interested in converting the first floor dwelling into an office. Against this background, the Tribunal found in favour of the applicant, though insofar as the shop extension was concerned. Dr Musumeci is an advocate and an architect with an interest in development planning law robert@robertmusumeci.com Robert Musumeci The Authority held that 'ameliorating the visual impact of the site' was not 'enough' to depart from established policy Malcolm Mifsud Court rules that articles of law need not necessarily be mentioned at the conclusion of a judgment Architect insists on aesthetics rather than policy dimensions