The offence of harassment requires the principle of this offence to behave in such a way with the intention of causing the harassment. The harassment needs to result from repetitive deliberate behaviour, with the intention to annoy a person. A distinction should be made between harassment and a mere inconvenience. This was held in a Court of Magistrates as a Court of Criminal Judicature judgement, presided by Magistrate Dr Simone Grech in ‘Il-Pulizija v. Justin Cutajar’. This judgement was delivered on the 28th July 2021.
A complaint was filed against the accused alleging that Cutajar’s pigeons were defecating and dropping feathers onto the complainants’ property once these pigeons were flying out of their coup.
The Court referred to Article 251A of the Criminal Code which lays down the offence of harassment. This section explains that an act amounts to harassment if a person inter alia, “pursues a course of conduct which amounts to harassment of another person; or (b) pursues a course of conduct which he knows or ought to know amounts to harassment of such other person…”.
Here, the Court referred to the judgement in the names of ‘Pulizija v. Grazio Falzon’, delivered by the Court of Magistrates on the 29th October 2019, which held that, the legislator’s intention was to sanction such harassing behaviour, notwithstanding the fact that a definition of harassment itself was never provided. The law is concerned with conduct directed towards an individual that is expected to inflict fear or distress, as well as conduct that is oppressive and unreasonable.
The Court also cited the judgement delivered by the Court of Appeal on the 29th November 2018 in the names of ‘Il-Pulizija v. Denise Falzon’ whereby this Court emphasised that there needs to be a distinction between harassment and an inconvenience.
Strikingly, article 251A creates the offense of a person behaving in such a way as to harass another person and knowing that such behaviour is annoying.
Furthermore, reference was made to Blackstone’s Black Law’s Dictionary whereby harassment is defined as: “Words, conduct or action that being directed at a specific person, annoys, alarms or causes substantial emotional distress in that person and serves no legitimate purpose”.
According to this Court, it appears then that the test to be used to establish whether there is ‘illicit’ harassment or otherwise, is by applying an objective test while taking into account all the facts of the case and all the circumstances that may have led a complainant to take the steps he took. Additionally, in ‘Il-Pulizija v. Raymond Spiteri’ decided on the 26 May 2016, the Court of Appeal held that in this case this offence required proof of keeping animals in such a state that, with criminal intent, their keeper wanted to create a situation of harassment, purposefully targeting his neighbours.
In this case, and in light of the above principles, the Court concluded that the prosecution failed to present evidence which was beyond reasonable doubt proving that it was the accused’s pigeon coup that was causing the complained harassment. The fact that the complainant testified that he saw the pigeons flying out of the defendant’s property does not amount to proof beyond reasonable doubt, that it was precisely these pigeons he saw, that were defecating and dropping their feathers inside his property.
Moreover, no evidence was presented indicating any intention beyond reasonable doubt, that this alleged act on the part of the accused, was specifically intended to annoy or offend the complainant.
Therefore, in such cases, concrete evidence needs to be presented to the Court showing that the principle of the offence, intentionally uses his animals to harass and annoy his neighbours.
The Court dismissed the case as it did not find Cutajar guilty of the above accusations made in his regard.
Av Malcolm Mifsud
Mifsud & Mifsud Advocates
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