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Sim, The State v [1980] PGNC 71; [1980] PNGLR 424 (13 November 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 424 - The State v Anthony Sim 

[1980] PNGLR 424

N266

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ANTHONY SIM

Waigani

Kearney DCJ

7 November 1980

10-11 November 1980

13 November 1980

CRIMINAL LAW - Particular offences - Fraudulent appropriation of power - Elements of offence - “Directs to his own use” - “Derived from any machine apparatus or substance” - “The property of another person” - Judicial notice of sources of electrical power and distribution - Criminal Code, s. 394.

EVIDENCE - Judicial notice - Matters of common knowledge - Sources and distribution of electrical power - Existing sources deriving from “any machine, apparatus or substance” - Generation and supply by Electricity Commission - Ownership of generator must be in Commission - Criminal Code, s. 394.

ELECTRICITY - Offences - Fraudulent appropriation of power - Elements of offence - “Directs to his own use” - “Derived from any machine apparatus or substance” - “The property of another person” - Judicial notice of sources of electrical power and distribution - Criminal Code, s. 394.

Section 394 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 mechanical, illuminating, or electrical power derived from any machine apparatus or substance, the property of another person, is guilty of a crime, ...”

Held

N1>(1)      A person who legitimately receives a supply of power, may “divert to his own use” power emanating from the same source; any illegal tap upon an inlet “diverts” power from the whole system.

N1>(2)      The existing sources of electrical power in Papua New Guinea are so generally known that every ordinary person may reasonably be presumed to be aware of them, and accordingly, the words “derived from any machine apparatus or substance”, being comprehensive, must encompass those services, and where power is derived from an electricity generator, such a generator is comprehended by the word “machine”.

N1>(3)      That the Electricity Commission generates electricity and supplies it to the suburbs of Port Moresby is a fact which every ordinary person may reasonably be presumed to know, and accordingly, ownership of any “machine” from which electricity is derived must be taken to be in the Commission.

Trial

The accused was charged with the fraudulent appropriation of power by diverting electricity. The State alleged that the accused carried out certain electrical wiring at his residence, which by-passed the Electricity Commission’s meter, and enabled him to operate air-conditioners without paying for the electricity they used.

In the course of his judgment his Honour dealt with certain submissions on the elements of the offence, and the case is reported on that aspect only.

Counsel

W. Terracini, for the State.

J. Gawi, for the defendant.

Cur. adv. vult.

13 November 1980

KEARNEY DCJ: I turn to the submissions of counsel.

Mr. Gawi submitted that there were five elements of the offence as laid in the indictment, and under the Criminal Code, s. 394, which the State must prove beyond reasonable doubt.

The first concerned the date of commission of the offence. The indictment specifies that the diversion was effected between 1st July, 1979, and 15th October, 1979. It is true that the State cannot establish the date or dates within that three and a half months period when the illegal wiring was carried out and electricity thereby diverted. However, on the evidence, I am satisfied that the illegal wiring was effected, and electricity was diverted thereby, within that period. This appears on any view of the evidence.

Second, on the question of what amounts to diversion of power. Mr. Gawi submitted that the phrase “diverts to his own use” in s. 394 implies that the offence can only be committed by a person who does not already have electricity supplied to him. Or, rather, that a person cannot “divert” electricity by tapping the mains through which electricity is already supplied to him — diversion presupposes power flowing only to a third party. It is clear that in this case the Commission provided an electricity supply to the flat, and to the accused, through its mains; and that the illegal tap was applied to the Commission’s mains bringing electricity to the flat.

I consider that this submission must be rejected. The fact that A legitimately receives a supply of power, does not of itself render him incapable of diverting to himself power emanating from the same source. An analogy may be drawn with a person who, having one legitimate irrigation channel to his farm from an inlet of a river, draws on the same river water by making a second and illegitimate irrigation channel from the inlet. The Commission’s mains, like a river with its inlets, carry power to all consumers; an illegal tap upon an inlet diverts power from the whole system.

Third, any power which is diverted must, under s. 394, be proved to have been “derived from any machine apparatus or substance”. Mr. Gawi submitted that there was no evidence on the element of derivation; and that the State was forced to contend that it is a fact that electrical power in this country is derived only from one or other of the three named sources and the court should take judicial notice of that. Mr. Gawi submitted that judicial notice of such alleged facts could not be taken, and the source from which diverted power was derived must be properly proved in the normal way.

There is considerable weight in that submission. I think, with respect, that s. 394 could be revised so as to accord with more modern scientific knowledge; it is difficult to see what purpose is served by specifying the source or derivation. It is nevertheless an element about which the court must be satisfied, to the necessary standard. It appears to me, on consideration, that the words in the section are comprehensive; that the existing sources of electrical power in Papua New Guinea are so generally known that every ordinary person may reasonably be presumed to be aware of them; and that the words encompass those sources. Accordingly, I take judicial notice of the fact that the power in question was derived from an electricity generator; such a generator is comprehended by the words “machine” in the section.

Fourth, the indictment lays the property in the “machine”, in the Commission. Mr. Gawi submitted that there was no evidence to establish that; that s. 394 provides that the “machine” must be “the property of another person”; and that ownership must be proved as laid in the indictment. The Commission is a statutory body, set up to generate and reticulate electricity. It is a fact, which every ordinary person may reasonably be presumed to know, that the Commission generates electricity and supplies it to the suburbs of Port Moresby. I take judicial notice of the fact that the Commission owned the machine which generated the electricity reticulated through the Commission’s mains which were illegally tapped in this case.

Mr. Gawi’s major submission was that the State had not proved that the accused was the person responsible for the diversion.

[His Honour then considered the evidence, and convicted the accused.]

Verdict of guilty.

Solicitor for the State: L. Gavara-Nanu, Acting Public Prosecutor.

Solicitor for the defendant: J. Gawi.