Inifiri v Solomon Islands Electricity Authority [2007] SBHC 13; HCSI-CRC 404 of 2006 (17 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 404 of 2006

BETWEEN:

JACK INIFIRI
Appellant

AND:

SOLOMON ISLANDS ELECTRICITY AUTHORITY
Respondent

Date of Hearing: 3 April 2007
Date of Judgment: 17 April 2007

Mr Lawrence. for Appellant
Mr Talasasa for Respondent

JUDGMENT

Cameron PJ

Introduction

1	This is an appeal against a conviction and sentence in the Central Magistrates’ Court.
2	On 1 October 2006 Mr Inifiri was convicted of consuming or using electricity in a dishonest manner. He was fined $200.00 and ordered to pay restitution of $20,000.00.
3	Mr Inifiri’s residential property was at Ngossi, Honiara. On 19 December 2004 Mr Inifiri went to Malaita on annual leave, returning to his home on 20 February 2005.
4	There were other persons who remained living at Mr Inifiri’s property while he was away
5	Prior to Mr Inifiri departing on leave, the power to his home had been disconnected. This was because a power bill of $3,000 was overdue. Mr Inifiri gave evidence that about 3 days before he left on leave he had paid that bill and assumed power would then be restored.
6	It transpired that the power company did not restore the power, and sometime in late December 2004 it went further and had the meter removed from the power board at his home. The reason for this was that there was another overdue power bill of about $20,000.00, which related to a commercial property in Malaita owned by Mr Inifiri.
7	On 16 January 2005, 4 days before Mr Inifiri returned from Malaita, the meter readers for the power company called at Mr Inifiri’s house. They discovered that a wire had been illegally fitted to the back of the meter panel. This enabled power to be consumed by the household without the authority of the power company and notwithstanding the absence of a meter.
8	Mr Inifiri was charged some months later. The particulars of the charge read that he "on the 16 day of February 2005 did consume or use electricity in dishonest manner after his power supply was disconnected". Whether Error of Law
9	In convicting Mr Inifiri, the magistrate relied on section 43 of the Electricity Act 1969. That section provides that where an artificial device such as the illegal wiring in this case is found to exist, then that is prima facie evidence of dishonest consumption or use of electricity. It goes further and provides that such dishonesty is imputed to "the consumer using such meter or instrument", and to "the person having control of the installation where it is fixed".
10	The magistrate decided that Mr Inifiri was the consumer and the person who had control of the installation within the meaning of the section. Because of this, the magistrate decided that the charge was proved, and he entered a conviction against Mr Inifiri.
11	The magistrate expressly ruled that he need not go any further consider whether or not Mr Inifiri in fact had a dishonest intention. This is apparent from the following extract: "It is irrelevant who connected or fitted the artificial means. Also it is irrelevant whether or not the defendant knew about it. In other words prove [sic] in this type of case is different from the onus of proof in normal criminal case of dishonest [sic]. For example, in a normal stealing case, an intention to permanently deprive the owner and carrying away are crucial elements. Whereas in this type of case knowledge or carrying are not required to be proved".
12	What the magistrate has overlooked is that section 43 provides that the circumstances to which it refers are only prima facie evidence of dishonesty. It is a statutory presumption that if the requirements of the section are satisfied, then that in itself, considered in isolation, would amount to dishonesty. However, being only a presumption, it is perfectly capable of being displaced by other evidence. One could not determine whether or not such a presumption is displaced in any given case without considering all the other evidence as well.
13	Having correctly identified that Mr Inifiri was caught by the section, it was therefore necessary for the magistrate to go further and decide, based on all the evidence, whether or not dishonesty had in fact been established against Mr Inifiri. Necessarily this would have required the magistrate to consider the evidence given at trial by Mr Inifiri, including the fact that he was away on 16 February 2005 and asserted that he knew nothing about the illegal wiring.
14	The actual offence for which Mr Inifiri was charged is contained in a different section of the Electricity Act, being section 42. The part of that section relevant to this case requires the person charged to have acted "dishonestly" before the offence is established. Dishonesty itself requires knowledge of wrongdoing on the part of the accused. That requirement is not displaced by the deeming provisions of the subsequent section, which as I have stated go only to establishing dishonesty on the face of it - that is, before a consideration of any further evidence.
15	There has, then, been an error of law by the magistrate in misconstruing the effect of section 43 of the Electricity Act. The error is highly material to the outcome.
16	I propose, therefore, to quash Mr Inifiri’s conviction. Whether Case Should be Remitted to Magistrate Court
17	The question of whether or not I remit the matter back to the Magistrates’ Court for further consideration is a matter of discretion.
18	I have decided not to remit the case, taking into account that:
	(a)	Mr Inifiri was entitled to expect his evidence to be considered at trial. The fact that the Court chose not to do so because it misconstrued the legislation was beyond his control;
	(b)	there would be an element of unfairness to Mr Inifiri in having him face the prospect of re-conviction despite the fact that the approach taken by the Magistrates’ Court was seriously flawed;
	(c)	in any event, Mr Inifiri appears to have a substantive defence to the charge. He gave at trial apparently unchallenged evidence that he knew nothing of the illegal wiring and was away at the relevant times. He appears to have a further defence to the charge, which is worded that on 16 February 2005 he consumed electricity, because it was common ground that he was not there on that date.
20	As I propose to quash the conviction, strictly I do not need to consider whether the sentence was appropriate.
21	However, it is worthwhile noting that the order that Mr Inifiri pay restitution of $20,000.00 related to an outstanding electricity account in respect of a different property. It was common ground that it related to a commercial building in Malaita which Mr Inifiri owned.
22	This case was a prosecution against Mr Inifiri relating to the alleged illegal consumption of electricity at his residence. As such, there was no jurisdiction for the magistrate to order payment of restitution for an amount said to be owed for power consumed on unrelated premises and in respect of which no prosecution or other Court proceeding had been brought. Result
23	The appeal is allowed. Mr Inifiri’s conviction for consuming or using electricity in a dishonest manner is quashed. The case will not be remitted to the Magistrates’ Court. Mr Inifiri is now acquitted on that charge.
By the Court