The question of whether an offence was slight or grievous is a question of fact. The decision is left in the hands of the judiciary to not only consider the doctors’ opinion but to also assess the nature of the offence in light of all of the evidence given. This was held by the Court of Magistrates (Criminal Judicature) presided by Magistrate Dr Josette Demicoli in the case of Pulizija vs Antoine Saliba on 2 September 2019.
The court heard the testimony of the accused, as well as the testimony of parte civile Joseph Borg regarding an altercation that occurred between them in August 2011. The defendant was charged with inflicting a wound of a grievous nature on Borg, as certified by a doctors’ certificate. He was also charged with voluntarily disturbing the public peace and order.
The first to give testimony was the accused’s mother who explained that Borg was a tenant of hers who had been asked to evict the residence after failing to pay rent. That day, she and her husband went to the flat to clean it out and found that Borg only had a few things left in the apartment but that it was empty. Upon leaving the apartment they bumped into Borg on the stairwell and asked him to pay the rent due before going back inside the apartment to collect the rest of his things. Although he said he would immediately go to get the money due and give it to them, two hours later he still had not showed up. They therefore decided to change the locks.
The altercation arose that evening after Borg called the defendants’ mother asking her to send her son, the defendant, to the residence with a key so that he can get the rest of this things. She said in her testimony that she heard a number of men in the background and became fearful that her son would be involved in a fight, but nonetheless he agreed to go. Indeed, Borg had with him three of his friends. It was alleged by witnesses that the defendant refused to open the door to the residence until Borg paid the sum due to his mother for rent, and that this is how the fight began.
The police inspectors who gave testimony explained that a number of weapons and tools were found on the scene such as pepper spray, a metal rod and farming tools. Both the accused and Borg were injured, and Borg’s van was damaged. Upon being rushed to hospital by his father, the doctors’ at Mater Dei hospital reported that Borg suffered deep cuts and fractures in his back which were considered to be of a grievous nature. Another doctor also testified that he has a cut in his eye measuring about three centimetres, and that this was classified as grave as not only was it a facial cut but one that could result in a permanent scar.
The Court then heard the testimonies of the accused, the parte civile and other witnesses who were there on the scene. Although the parties gave different accounts of what happened, the Court concluded that it was obvious that Borg did not have his friends with him that night to help him move the rest of his things out of the apartment as he alleged. It was clear that some sort of altercation was envisioned and/or provoked. However, the Court affirmed that from the CCTV footage produced as evidence by the prosecution, it is clear that the defendant threw the first punch, although he alleged that the men threatened him and used pepper spray on him. The defence in fact held that the attack was one of legitimate self-defence against the four men.
The court held that firstly this defence could not be accepted. It stressed that in accordance with local jurisprudence and the Criminal Code Article 224, self-defence can only be used as when there is no other option for the protection of one’s person or property. In this case, the defendant could have called the police and fled the scene.
Nonetheless with reference to the grievous nature of the bodily harm, the Court held that according to the evidence the accused was proven to have punched the defendant once, as a result of which his eye was injured but no permanent damage or scars were caused. He was therefore charged with slight bodily harm, despite the doctors’ reports saying that the wounds were grievous. He was acquitted on condition that he does not commit any other offence within six months. He was acquitted from the offence of disturbing the public peace.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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