State v Paipua; State v Bellem [1982] PGNC 32; N398 (8 December 1982)

Unreported National Court Decisions

N398

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
TOM BELLEM

Waigani

McDermott J
8 December 1982

MCDERMOTT J: The facts in this cre not not disputed. Tom Bellem’s house at Gerehu was disconnected from the electricity supply by Elcom. An electrician went to the premises, disconnected from inside the meter the wiring in which is required to take electricity from the meter into the premises. He then sealed the box containing this disconnected wire. Sometime later it was discovered that the seal had been broken, the box opened and the wire reconnected thus again connecting the house to the electricity supply.

The accused also employed by Elcom says he did this at the request of the owner. He has been charged that he ‘... fraudulently diverted to the use of one namely Tom Bellem electrical power’.

His defence is simply that what he did was not the diversion of electrical power but the abstraction of electrical power, something quite different.

He was indicted under Criminal Code s.382 which commences in the terms:

‘A person who fraudulently abstracts or diverts to his own use or to the use of any other person ...’

That what he did was fraudulent is not disputed and there is evidence that he so acted. How is the section to be interpreted?

Earlier this year I had cause to give thought to interpretation of the Code in The State v. Alan BekauN398.html#_edn996" title="">[cmxcvi]¹ any my ach to interpretatiotation of a Code Section remains the same. The shorter Oxford dictionary 1975 gives the following as one of the meanings for ‘Abstract’;

‘To withdraw, take away, to take away secretly, to purloin, to draw off, to divert’.

Whereas ‘Divert’ has the following meanings:

To turn aside from its direction or course, to deflect, to turn from one destination to another, to deviate, digress, to turn away, to draw off from a course.

These words are used disjunctively in the section - to my mind creating two separate actions for which a person may be liable. And I am reinforced in this view by the use of the word ‘or’ itself. It creates an alternative in its ordinary meaning.

I have been referred to Boggelin v. WilliamsN398.html#_edn997" title="">[cmxcvii]². This is an English case dealing with dishonest use of electricity contrary to the Theft Act 1968. The only difference between that and this case is the absence of dishonesty. The provision in the Theft Act reads:

‘A person who dishonestly uses without due authority or dishonestly causes to be wasted or diverted, any electricity shall on conviction on indictment be liable to imprisonment for a term of exceeding five years’.

The accused there ‘broke the seal and reconnected the supply by means of a wire in place of the missing fuse. The effect of so reconnecting was, as the defendant knew, that the meter continued to record consumption of electricity’.

In the case before me I find that the accused broke the seal, unscrewed the meter box and reconnected the wire inside it. The electricity was then reconnected and the meter recorded it. This to me does not envisage anything in the nature of a diversion of the supply. Rather its interruption at the box was removed when the wire was reconnected.

It is interesting that Lloyd J referred to the case stated in the following terms (at p.375):

‘The question for the opinion of the court is whether a person can be convicted of dishonestly abstracting electricity contrary to s.13 of the Theft Act ...’

At the end of the report their Lordships certified a point of law of general public importance - If an occupier of premises unlawfully connects those premises with the electrical mains supply and does so in such a manner that the meter on the premises will record the abstraction of electricity ...’

The accused was originally charged ‘without lawful authority using electricity’.

Looking at the Theft Act and the Code s.382 it is clear that what the accused in both Boggelin’s case (supra) and in the case before me did was to use or abstract, in distinction to divert the electricity. This is a different series of actions giving rise to the offence of fraudulently appropriating power.

It is therefore with reluctance that the submissions of defence counsel be upheld. Lest anyone says therefore that the law is an ass be reassured that the State prepared a criminal charge against the accused. It bears the onus throughout. What is proved are actions of abstracting powers not of diverting it. They are different concepts and thus this element in the indictment is not proved.

I am not disposed to accept defence counsels second argument that the property element of the indictment ‘... that is the property of another person namely the Papua New Guinea Electricity Commission’ was not proved and adopt what Kearney, D.C.J. said in The State v. Anthony SuriN398.html#_edn998" title="">[cmxcviii]³ concernin generation and sund supply of electricity. Perhaps the only qualification could be that in Lae, power may come from Bulolo and t there generated by Elcom.

Solicitor for the State: Public Prosecutor

Counseounsel: C. Righatta

Solicitor for the Defence: Public Solicitor

Counsel: M. Doiwa

N398.html#_ednref996" title="">[cmxcvi]^{Unreported National Court Judgment No. N375(L) dated 16th March 1982}

N398.html#_ednref997" title="">[cmxcvii] ^{(1978) 1 W.L.R. 873}

N398.html#_ednref998" title="">[cmxcviii]^{Unreported National Court Judgment No. N266 dated 13th November 1980}