Issue link: https://maltatoday.uberflip.com/i/975483
50 maltatoday SUNDAY 29 APRIL 2018 I n order for a person to be found guilty of possession of drugs found in the Dangerous Drugs Ordinance, the law requires the element of intention and free will in the manifestation of the material element of the crime. This was held by Magistrate Natasha Galea Sciberras in the case of The Police vs Redeemer Theuma on the 25th of April 2018, where the Court stated that the defendant could not be found guilty of possession of drugs because the drugs were not his nor did he intend to have them on his person. The Court heard the plea by the plaintiff whereby police officers working at the Bormla Police Station alleged that the defendant's girlfriend was called in for questioning in December 2011 on an unrelated case concerning relatives of hers. The woman, Ms Attard, who also spoke to the Court, admitted that she was in possession of heroin at the time that she went in for the questioning. The plaintiff went on to describe how in a moment of panic, Ms Attard ran out to the plaintiff where she handed him the drugs. Officers who chased after her, charged the defendant with possession of illegal drugs. The Court also heard the counterclaim by the defendant who claimed that he did not know that his girlfriend was in possession of the drugs at the time of the questioning. He also immediately dropped the drugs onto the ground as soon as they were handed over to him. He therefore pleaded that he could not be found guilty of possession, since the drugs were not his nor did he intend to keep them. The Court, in looking at the evidence, commented on how the plaintiff had not been properly afforded the guarantee to legal representation when he was being questioned in the Police Station. The Court held that although the police informed him of his right to legal representation, they did not ask him whether or not he would like to make use of this right. The Court also held that it was impossible to claim that the defendant was guilty since the formal element of the crime could not be proven by the plaintiff. He did not know that Ms Attard was in fact passing along drugs to him and also it was clear that the whole thing was caused by Ms Attard 's actions. The Court found the defendant not guilty. Dr Malcolm Mifsud is partner Mifsud & Mifsud Advocates Opinion I n this case, applicant, who was a livestock farmer, sought planning permission for the "construction of a residence with basement and the construction of an underground water reservoir for agriculture purposes". Applicant's site was located outside the development zone of Dingli. Despite being a livestock breeder, applicant was refused permission for the following reasons: 1 The proposed farmer's residence ran counter to criteria (10) and (11) of policy 2.2A of the Rural Policy and Design Guidance (2014) since a basement garage extending beyond the footprint of the dwelling, thus resulting in a total building f loorspace of over 200sq.m was included; 2 An 'excessive ramp' from the road to the basement was created, resulting in 'unnecessary land take up'; 3 The proposal was in breach of Rural Objectives 1.7 and 4.3c of the Strategic Plan for Environment and Development, which policies aim to control the location, design and cumulative effect of development in rural areas; 4 The boundary walls ran counter to policy 2.9 of the Rural Policy and Design Guidance (RPDG) 2014 and Legal Notice 160 of 1997, in that the permitted height of 1.2 metres was being exceeded; 5 The basement was not adequately ventilated and illuminated for its intended use. The decision was appealed before the Environment and Planning Review Tribunal. In his submission, applicant (now appellant) submitted the following grounds of appeal: 1 Being a dairy (cow) livestock farmer, he was clearly eligible for a 'new farm dwelling'; 2 The farm was operating and 'able to raise 212 cows (female bovines) over two years, 14 bulls/heifers and 93 calves over six months old, hence 212 cows are all potentially possible milking cows'. Consequently, the number of cows exceeded the minimum eligibility threshold stipulated in the policy (namely 40 cows); 3 Applicant was a committed livestock farmer 'in need of a dwelling within the vicinity of the farm to be able to manage and supervise the requirements of his particular large-scale animal husbandry operations'; 4 The farm was to be located on land of no ecological and/or archaeological value; 5 Contrary to what the Authority had stated, the basement and the overlying residence had the same footprint. In reply, the Authority reiterated that the basement went beyond the ground f loor footprint, 'giving rise to more land disturbance and formalisation of site'. The Tribunal was therefore requested to confirm the Authority's decision. In its assessment, the Tribunal held that applicant was indeed a genuine dairy producer. The Tribunal assessed that the basement and the overlying ground f loor shared more or less the same footprint, except for a small area at basement level which served as a ventilation duct. The Tribunal also found that the ramp was necessary to facilitate access. Against this background, the Tribunal ordered the Authority to issue the permit on condition that the boundary walls are reduced in height as suggested by the Authority. Additionally, the Tribunal requested applicant to reduce the extent of hard landscaping to a bare minimum. Dr Robert Musumeci is an advocate and a perit having an interest in development planning law robert@robertmusumeci.com Robert Musumeci The Tribunal assessed that applicant was indeed a genuine dairy producer Livestock farmer sought planning permission for the "construction of a residence with basement and the construction of an underground water reservoir for agriculture purposes" Malcolm Mifsud Court denies that man who was passed a bag of drugs by girlfriend was guilty of possession Residence to dairy producer permitted