Lawyers clash in court over Polidano tree cull in Balzan

In 2013, a court of magistrates had found Polidano guilty of serious breaches of environmental protection and planning laws, after it was found that he had already cut down the trees by the time his application been rejected by the MEPA board in 2009. 

Lawyers for developer Charles Polidano and the Office of the Attorney General made their verbal submissions before the Court of Appeal this morning, as the property developer contested the €100,000 fine imposed on him for cutting down protected trees and demolishing a rubble wall on a property in Balzan.

In 2013, a court of magistrates had found Polidano guilty of serious breaches of environmental protection and planning laws, after it was found that he had already cut down the trees by the time his application for the construction of 43 apartments, the restoration of two old houses, and an underground car park for 121 cars had been rejected by the MEPA board in 2009.

MEPA had issued an emergency conservation order over the site in July 2011, but this was allegedly ignored by Polidano.

In today’s sitting, lawyer Michael Sciriha, leading the defence, criticised the previous judgement by the magistrate's court, describing it one without motivation and justification for rejecting the twelve lines of defence submitted by the defence. He claimed that the defence had exhibited documents which show that the property belongs to Balzan Estates Ltd, and not to Polidano personally, but the previous court had disregarded it, without giving a reason.

“This is a risky sentence where a citizen is at risk of being found guilty without valid reasons being invoked, or without procedures being followed. Today’s proceedings are the result of the mistakes of the past. This makes you question: did the lower court miss the wood for the trees, so to speak?”

“The court did not appreciate that silence on the part of the accused is itself a contestation, a right which is guaranteed by the constitution, the principle that he who alleges must prove the case and must produce the best evidence possible,” said Sciriha, adding that “in this case, the prosecution felt that they had a walkover and did not produce the necessary witnesses to prove with whom the workers were employed, who the directors were and so on.”

He pointed out that no witnesses from the MFSA or Transport Malta had been produced to support their arguments.

“Today there is a permit and the lawyer insisted that the owner is completely collaborating in restoring this property “ said the lawyer,  insisting that Polidano is not guilty and adding that the events took place at a different time to that specified in the charges.

Lawyer Lara Lanfranco, from the office of the Attorney General, argued that the timeline as indicated in the charges makes no claim to be precise, adding that the witnesses had all testified to the period of time in which the offences took place.

She agreed that the defence can exercise their right to silence, but added that this does not help “if the defence does not bring a witness and not bring arguments to sustain their position against a strong case by the prosecution.” The cross-examination of prosecution witnesses did not raise reasonable doubt, she said.

She moved on to the defence’s argument that no proof had been brought proving that Polidano was a director in the company.

Lanfranco confirmed that no MFSA document had been exhibited, but pointed out that “every other document did indicate this, even a contract exhibited by the defence clearly showed that Polidano was the director and is signed by him. The enforcement notice, which was ignored, also bears his name.” Polidano could be seen shaking his head at this assertion.

With regards to the connection between the workers who cut down the trees and Polidano, she said that everyone had forgotten that one witness had testified that Polidano had been on the site and had spoken to an official.

Court records showed that his reaction to being told that his workers were destroying Bay Laurel trees was “I will stop everything,” she said. “How can he insist that there is no connection between him and the workers?” Scriha interjected, pointing out that there was no proof that they were Polidano’s workers.

She argued that the punishment was not excessive. One of the offences, breach of enforcement notice, actually carries a potentially larger fine than that imposed and also speaks of imprisonment.

“Here we are not talking about someone who doesn’t know what is happening or has no experience. This needs to be taken into account, I believe this makes matters worse.”

Lawyer Reuben Farrugia, on his own behalf, explained how his residence was adjacent to the site in question, and that he had a vested interest to protect his property. Polidano was heard whispering that Farrugia’s interest in the case is because he plans to purchase the property himself.

He reminded the court that aerial photos sustain the argument that the Bay Laurel trees had been there a long time and that one expert had explained that the trees, which had been freshly cut, were scientifically proven to be over fifty years old.

Farrugia said he was surprised at some of the arguments of the defence. “From the evidence, it is clear that no one else is the owner of the land. On the one hand, you have all the applications in the names of Polidano or Polidano’s company and then on the other you have Polidano testifying that he has nothing to do with them.

They said that the prosecution had charged Polidano as a director of a company and that these charges cannot then be transposed onto an individual. 

“Do we not know that companies have a distinct juridical personality? Isn’t this the reason why the crime of corporate liability was introduced? If successful, the conviction will be on Polidano’s criminal record, not in that of the company.”

“We are all lawyers of a certain experience,” said Sciriha “How can we construe a MEPA application to be a proof of ownership? This is established by searches in public registry and by contracts.”

The case will continue in October.

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