R v Perrine (No 2) [2021] NSWDC 828

District Court New South Wales

Medium Neutral Citation: R v Perrine (No 2) [2021] NSWDC 828 Hearing dates: 7 June 2021 Date of orders: 8 June 2021 Decision date: 08 June 2021 Jurisdiction: Criminal Before: P Taylor SC DCJ Decision: I find the accused not guilty of the s 166 related offence of use or consume electricity without authority under s 64 of the Electricity Supply Act 1995. Catchwords: CRIME – use/consume/waste electricity without authority – theft of electricity – illegal bypass – use of metered versus unmetered electricity – intention - duress Legislation Cited: Criminal Procedure Act 1986, s 166 Electricity Supply Act 1995, s 64 Interpretation Act 1987, s 34, s 35 Category: Principal judgment Parties: Regina (Crown) Jean Cedrick Perrine (Accused) Representation: Counsel: Ms T Hennessy (Accused)

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2020/00107366 Publication restriction: None

Judgment

1. The charge 1. Jean Cedrick Perrine was tried on a charge of cultivating a commercial quantity of prohibited plants, namely cannabis cultivated by enhanced indoor means. He was found not guilty by a jury. 2. A major issue in the trial was whether the actions of Mr Perrine were done as a consequence of duress. The necessary inference from the verdict is that the jury was not satisfied beyond reasonable doubt that the Crown had negatived duress. 3. Mr Perrine was also charged with a related offence under s 166 of the Criminal Procedure Act 1986 of using electricity without authority under s 64 of the Electricity Supply Act 1995. Section 64 of that Act, relevantly, provides: "64 Theft of electricity (1) A person must not abstract, cause to be wasted or diverted, consume or use any electricity from a generating, transmission or distribution system unless authorised to do so under a wholesale supply arrangement or customer retail contract." 1. After the verdict, the Crown elected to proceed with the related offence, relying on the evidence in the trial, and this was not opposed by the defence. 2. It was not in contest that electricity was illegally diverted and used at the premises. Whether Mr Perrine used that illegally diverted electricity was a principal issue. 3. The submissions proceeded on the basis of the evidence at trial. I take into account the following matters in hearing these criminal proceedings. 4. The accused pleaded not guilty to the charge at the Local Court, and that plea was treated as remaining applicable to the present proceedings. It is my duty and responsibility to determine whether he is guilty or not guilty of the charge and to return my verdict according to the evidence. 5. Mr Perrine is not required to prove his innocence. He is presumed to be innocent of the crime charged unless the evidence has established his guilt beyond reasonable doubt. 6. The Crown bears the onus of proof to establish the guilt of the accused. The accused bears no onus and is not required to prove anything. 7. The standard of proof is beyond reasonable doubt and suspicion that the accused is guilty or probably guilty is insufficient. 8. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. In the circumstances of the present case, for reasons which I will address, the elements, relevantly, are that Mr Perrine: 1. without duress; 2. intended to; and 3. did use electricity; 4. that was illegally diverted from the consumer main and away from the meter. 1. I adopt the same directions that I gave to the jury as directions to me, including in respect of the need for the Crown to negative duress beyond reasonable doubt which, in summary, requires proof beyond reasonable doubt that a reasonable person of Mr Perrine's age and sex, of ordinary firmness and strength of will, in his circumstances, would not have acted so as to commit the crime alleged. 2. I also direct myself that the accused's account, given in two interviews to the police and in evidence, so far as it contradicts elements of the offence, must be negatived as a reasonably possible account in order for guilt to be established. 3. If the accused's account contradicts elements of the offence, and I accept it or accept that it might be true, then he is entitled to a verdict of not guilty. Mr Perrine does not have to establish his account, nor is the question a matter of whose account is to be preferred. 4. Further, I must take into account Mr Perrine's good character, both as a relevant matter going to the likelihood of him committing the offence as well as the likelihood of his account being true. His good character is not, however, any kind of defence.