Updated 4pm, adds details from judgement

A judge on Wednesday upheld a request by a contractor and a builder not to release for development part of the site of a fatal construction accident until their pending trial is concluded.

Contractor Ludwig Dimech, later joined by builder Nicholas Spiteri, had made the request in connection with the Sta Venera site that was being excavated when a house next door collapsed, killing mother-of-two Miriam Pace.

The incident happened in March 2020.  

Dimech and Spiteri successfully argued before Mr Justice Toni Abela that releasing the site for development would irremediably prejudice their defence.

The two are awaiting trial for having allegedly caused Miriam Pace's death. 

Two architects, Roderick Camilleri and Anthony Mangion, had been found guilty of involuntary homicide in connection with the case, handed a suspended sentence and ordered to carry out between them 880 hours of community work.

While Camilleri and Mangion opted to have their case decided by a Magistrates’ Court, Dimech and Spiteri chose to be judged by the Criminal Court in a trial by jury.  

Madam Justice Consuelo Scerri Herrera, who is to preside over the upcoming trial, had upheld a request by MCZMC Developers Ltd for the site in Abela Scolaro Street to be returned to them, paving the way for construction works to go ahead. A court expert was appointed to preserve video footage of the site after it was cleared of overgrown grass which accumulated over the past three years.

Dimech and Spiteri sought the urgent intervention of the First Hall Civil Court in its constitutional jurisdiction, asking it to suspend the criminal proceedings as well as the judge’s decree releasing the Ħamrun site.

They pleaded before Abela that during a trial by jury, the on-site inspection of a crime scene constituted “a vital exercise”, which enabled jurors to grasp a better understanding of the dynamics of the case through their personal visual analysis.

In this case, once the site has been released to the developers, jurors would be precluded from holding an on-site inspection, resulting in “an avoidable injustice” to the accused.  

All parties interested in what they were after - Judge

Abela, observed it was fair and just for this matter to be settled so as to avoid delays at the trial and to map the way early on. 

Dimech’s lawyers had argued that the accused had not been notified about the application filed by the developers and the neighbours for the release of the relative site and properties.

After examining the records of the proceedings before the Criminal Court where that request was made in January, Abela noted that while that court had ordered notice of the request to be served upon the Attorney General, there was no similar order in respect of the accused. 

The same happened when another request was filed in February. 

The court minute dated February 28 showed that the accused was not present. 

The court could not quite understand what had happened, said the judge, adding that all the parties seemed to have been interested in what they were after, namely, MCZMC wanted the site, Dimech as contractor wanted his machinery while the neighbours wanted back their properties. 

It was not clear whether the court notice had been issued regularly, in such manner that Dimech and Spiteri, who had the greatest interest in the criminal proceedings, would be fully aware of what was going on. 

Notification of every act forming part of a criminal case constituted the cornerstone upon which rested the principle of fair hearing. 

Indeed, the court went a step further by saying that in case of doubt, a judicial act should be presumed as not having been served upon the interested party. 

The applications filed by MCZMC and the Pace family were in their sole interest when, legally speaking, they were extraneous to the criminal proceedings against Dimech and Spiteri. 

Strictly speaking, those proceedings first and foremost interested the accused because it was their loss of personal freedom that was at stake. 

On February 28, the Criminal Court had heard submissions about two separate requests, one concerning the release of the site, the other about the release of the machinery. 

Yet, Abela had serious doubts whether Dimech was present when the developers’ request was discussed. 

And when, in March, MCZMC and the Pace family requested the Criminal Court to notify the its appointed experts and an unknown person tasked with cutting the overgrown grass on the St Venera site, the accused was not mentioned.

Once again Dimech was left out of the equation as though he was not an interested party, remarked Judge Abela. 

Moreover, the Criminal Court appeared to have relied heavily upon an expert’s opinion that the site in its current state offered “no added value as to the foreseeability or foresight of what happened”.

'Current site is closest evidence to how it was in previous state'

Without detracting from the expert’s abilities, Abela pointed out that, at a trial, the jurors were the judges of facts and no expert opinion could substitute their discretion and assessment. 

Even in its current disturbed state, the site of the collapse is the closest evidence to how it was in its previous state. 

Once built up, everything would be cancelled and the accused would be deprived of evidence that in the area of the collapse, there were no signs left by a hydraulic hammer. 

Expert opinion was not conclusive and the jurors could not be denied beforehand the right to request an onsite inspection where the incident took place. 

The accused also had the right to decide upon his own defence and that included requesting an onsite visit. 

Moreover, in the criminal case, the Attorney General had consistently objected to the release of the site, saying that it was to remain under court custody. 

Somehow, the AG adopted a different stance when Dimech filed this constitutional case, observed Abela. 

While declaring that the AG and the Police Commissioner were non-suited, the court concluded that the State Advocate was the one to represent the state in this case. 

The court declared that Dimech’s rights had been breached and varied the decree delivered by the Criminal Court by limiting its effects to the developers’ site. 

As for the Pace family and the neighbours who owned the garage underlying the Pace’s home, the court allowed the release of those properties but prohibited the families from doing anything to disturb the area of the adjacent site where the collapse occurred. 

Breaching that order would result in contempt of court. 

Lawyers Michael Sciriha, Roberto Montalto and Roberto Spiteri are assisting Dimech.  Lawyers Franco Debono and Marion Camilleri are representing Spiteri.