Paipua, The State v [1982] PGNC 45; [1982] PNGLR 402 (15 December 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 402 - The State v Thomas Paipua

[1982] PNGLR 402

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

THOMAS PAIPUA

Waigani

McDermott J

8 December 1982

15 December 1982

ELECTRICITY - Offences - Fraudulent diversion of power - “Divert” - “Abstract” - Two separate offences - Reconnection of supply not diversion - Criminal Code, s. 382.

Section 382 of the Criminal Code provides for the offence of fraudulent appropriation of power as follows: “Any person who fraudulently abstracts or diverts to his own use or to the use of any other person, ... any electrical power ... the property of another person, is guilty of a crime, ...”

Held

N1>(1)      “Abstract”, in s. 382, means to withdraw, to draw off.

N1>(2)      “Divert”, in s. 382, means to turn aside from its direction or course.

N1>(3)      Section 382 creates two separate offences.

N1>(4)      Accordingly, a person who fraudulently reconnects a disconnected electricity supply is using or abstracting, as distinct from diverting, electricity, and cannot be guilty of “fraudulently diverting electricity” within s. 382.

Cases Cited

Boggeln v. Williams [1978] 1 W.L.R. 873.

State, The v. Alan Bekau [1982] P.N.G.L.R. 403.

State, The v. Anthony Sim [1980] P.N.G.L.R. 424.

Trial

This was the hearing of a charge of fraudulently diverting electrical power contrary to s. 382 of the Criminal Code.

Counsel

C. Righatta, for the State.

M. Doiwa, for the accused.

Cur. adv. vult.

15 December 1982

MCDERMOTT J: The facts in this case are 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 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 Bekau [1982] P.N.G.L.R. 403, and my approach to interpretation of a Code section remains the same. The Shorter Oxford Dictionary (1975 ed.) 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 Boggeln v. Williams [1978] 1 W.L.R. 873. This is an English case dealing with dishonest use of electricity contrary to the Theft Act, 1968 (U.K.). The only difference between that and this case is the absence of dishonesty. Section 13 of 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. 875):

“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 Boggeln’s case (supra) and in the case before me did was to use or abstract, as distinct from, 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 counsel’s 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 Dep. C.J. said in The State v. Anthony Sim [1980] P.N.G.L.R. 424 concerning the generation and supply of electricity. Perhaps the only qualification could be that in Lae, power may come from Bulolo and is not generated there by Elcom.

Verdict of not guilty.

Solicitor for the State: Public Prosecutor.

Solicitor for the defence: Public Solicitor.