Posted Friday, August 10, 2018
Criminal inconvenience must be grave, continuous and intense

The Court of Criminal Appeal, presiding by Madame Justice Consuelo Scerri Herrera, held on 31 July 2018, that the charge of nuisance of loud music may be satisfactorily proved if it is shown that the inconvenience was grave in nature. This was held in a judgement Pulizija -v- Salih Usta.

Usta was accused of operating a loud speaker, gramophone, amplifier etc and causing a nuisance to a neighbour. The Magistrates in July 2017 found the accused guilty of the charge and fined him €55. Usta appealed this judgement.

Usta explained in his appeal that he owns and runs a bar in St Paul’s Bay, which holds a permit to operate and is allowed to play music. The neighbour had filed a number of complaints with the Qawra Police Station. The Magistrates Court appointed a technical expert, who reported back to the Court. Usta claimed that it was in his favour, but the court did not take cognisance of the conclusions of the report and based its judgment on subjective norms and not on objective scientific considerations. Usta further explained that the road in question is in a touristic area and there is an amount of noise.

Madame Justice Scerri Herrera examined the evidence produced, namely that the neighbour had filed the report on 24 March 2016 at 9.28pm due to the noise coming from the bar. A police officer visited the neighbour home and confirmed that he could hear the noise coming from the car. Further evidence showed that the bar is not licenced to operate amplified music, but may remain open until 4am. In his evidence the neighbour told the Magistrates’ Court that the inconvenience had being going on for a year. The Court of Appeal commented that he gave evidence more on the general situation than what had actually happened on the date mentioned in the charge sheet.

The appellant, Usta, gave evidence and explained that his clientele are more elderly people than a young crowd and therefore he never puts the music too high. The Court of Appeal, then examined the legal points and held straight away that it is the prosecution that must prove the charges and must reach the level of beyond reasonable doubt. If these two criterias are not adhered to, the Court must acquit.

The Court commented that it did not understand the appellant’s submission that the technical report was in his favour, because it merely established that if the music had to be put full on then the decibel reading from the neighbour’s bedroom would reach 52Db2. On the other hand the Court criticised the fact that the charge makes no mention of the day and time of the complaint and the police report was also very general. The Court cannot be presented with generic evidence. For example, a representative of the Malta Tourism Authority confirmed that the bar could play music but must stop by midnight. The Court highlighted that this licence does not allow the bar to play music without due consideration to the neighbours. This was established in a judgement delivered on 20 November 1998 Pulizija -v- Raymond Spiteri. According to Regulation 13 of Legal Notice 1 of 2006, licences are subject to conditions listed in the Second Schedule, which includes:

“02. The commercial activity carried out in the premises or things stored within the premises shall not:-

02.1 cause annoyance to neighbours;

09. “No Commercial Activity located in an urban area can generate noise that can be heard from outside the premises that causes annoyance and disturbance to neighbours by playing of music by live bands or amplified music or other means between the hours of 11.00 p.m. and 9am of the following day”.”

The Court pointed out that not all inconveniences are censored and punished before a criminal court, but if it is proved that that the inconvenience is of a serious  nature it may be declared to be contrary to law. Although a judge must use an objective test, in cases of noise, the judge must evaluate the evidence brought before it. The Court made reference to a judgement delivered by Judge William Harding in Pulizija -v- Anthony Cushieri decided on 16 Devember 1946, where the noise level is above that accepted by good neighbourliness in normal cases. Therefore, the inconvenience must be grave and not easily tolerated, continuous and intense.

The Court made a comparison of the English and Maltese versions of legal Notice 1 of 2006, which have the same meaning as annoyance and nuisance.

The Court held that in this particular case, the evidence shows that music was played in a general fashion in a commercial licensed place. There was not evidence that a disturbance was caused to the neighbourhood.

The Court of Appeal upheld the appeal by revoking the declaration of guilty and instead declaring Usta not guilty.

 
Dr. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
 
This article may also be accessed on Malta Today
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