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The onus of proof in electricity theft is shifted on to the defendant

The Magistrates’ Court ruled on 21 August that in electricity theft the law shifts the onus of proof on the registered person to explain why the meter was tampered with. 

malcolm_mifsud
Malcolm Mifsud
19 September 2014, 8:00am
This was decided in the case the Police -v- Iliya Rnjak.

Mr Rnajk was accused that between April 2000 and April 2005, as the person responsible for a restaurant in St Julians, altered the measurement of consumption on the meter at the premises and therefore, committed theft of electricity which exceeded €2,330. He was also accused of causing wilful damage to the meter which belonged to Enemalta Corporation.

Magistrate Miriam Hayman presided. 

Alan Chetcuti from Enemalta calculated that €7,577.70 worth of electricity was stolen in the five years. He explained that this was discovered thanks to a surprise inspection. He told the court that since the records were not digitalised at the time, there were no records as to whether the accused had filed a report on any faults on the meter in question.

The two inspectors who had carried out the unannounced inspection testified that they had gone to the restaurant in St Julians on 30 April, 2005. They checked the three-phase meter in the premises, in the accused’s presence and discovered that there was a glue substance on two blue seals and also that the blue phase fuse inside the service box was tampered with. The meter was not rotating and therefore the consumption was not being registered. The inspectors insisted that the corporation does not use glue on their seals. The meter was then removed from the premises.

The inspectors rebutted suggestions that the screws could have come loose as a result of the vibrations caused by construction works carried out close to the property. 

Anthony Gauci of ARMS Limited testified that their calculations on the unpaid electricity was based on the history of the meter and past consumption. 

Mr Rnjak testified that the inspectors were in fact not inspectors but were there to change the faulty meter. He explained that he had filed reports with Enemalta on the main fuses. The accused told the court that during the period 2000 to 2005 the restaurant was partly demolished and that there was digging in front of the property which caused damages. As a consequence he had to close the restaurant twice. 

Mr Rnjak confirmed that he was responsible for the restaurant from 1996, but had no idea who could have tampered with the electricity meters.

Magistrate Hayman then examined the law and the legal pointed raised. Article 264(2) of the Criminal Code reads:

“(2) In the case of breaking of pipes of the public water service or of the gas service, or of the wires or cables of the electricity service, or of the meters thereof, or of any seal of any meter, or in the case of the existence of artificial means capable of effecting the unlawful use or consumption of water, gas or electric current, or capable of preventing or altering the measurement or registration on the meter of the quantity used or consumed, shall, until the contrary is proved, be taken as evidence of the knowledge on the part of the person occupying or having the control of the tenement in which such breaking or artificial means are found, of the said use or consumption of water, gas or electric current, as the case may be.”

The law allows a presumption of the knowledge of the fact of tampering and unregistered consumption to be shifted to the registered consumer. The person who has effective control of the premises must provide evidence against the presumption. This does not exempt the prosecution from proving its case beyond reasonable doubt and according to the court, the prosecution succeeded in proving its case. On the other hand it commented that the defence raised by Mr Rnjak was weak and not probable. 

"“... in the case of the existence of artificial means capable of effecting the unlawful use or consumption of water, gas or electric current ...shall be taken as evidence of the knowledge on the part of the person..."
The court acquitted him of the charge of voluntary damage, since no evidence was produced on who actually caused the damage, but found Mr Rnjak guilty of the first charge and handed him an 18 month imprisonment sentence suspended for three years.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates

malcolm_mifsud
Malcolm Mifsud is a partner at Mifsud & Associates.
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