The Tribune

Prosecutors “singularly failed” to prove that a former Bahamian Contractors Association (BCA) president stole electricity at a prominent downtown Nassau property that he managed, the Court of Appeal ruled.

Justice Jon Isaacs, in a ruling backed by his two fellow Appeal Court judges, backed submissions by Stephen Wrinkle’s attorneys that he had no case to answer, as prosecutors had failed to establish “a prima facie case” against the well-known contractor.

And, in quashing the one-year sentence and fine imposed upon Mr Wrinkle, the Court of Appeal effectively delivered a ‘rap on the knuckles’ to the man who sentenced him, Magistrate Derence Rolle.

Justice Isaacs issued “a word of caution to magistrates who may be inclined to question witnesses lest it be seen as a descent into the arena by the magistrate acting as an advocate for one of the parties in what is an adversarial contest”.

The judgment criticised Magistrate Rolle for frequently intervening in the case to question witnesses, at one stage instructing prosecutors to summon another Bahamas Electricity Corporation (BEC) staffer as witness.

“The magistrate’s interventions may have fallen outside the permissible boundaries of questioning by a Tribunal in as much as they were not necessary in large part to clear up anything overlooked or ambiguities,” Justice Isaacs wrote.

“Essentially the magistrate has commandeered the prosecutor’s role when he tells the prosecutor he must bring Peter Rutherford [the BEC executive] as a witness.....

“An informed observer may well conclude the appellant did not receive a fair trial due to the magistrate’s intervention.”

Justice Isaacs also implicitly criticised BEC’s business practices and operations, referring to the evidence given by its employee, Wendy Duncanson, at the Magistrate;’s Court.

He described as “a course of business of BEC” her suggestion that electricity meters had been installed at the BayParl building in Parliament Street without anyone ‘applying for service’.

Ms Duncanson agreed that somebody must have paid a deposit, applied for service and opened an account, referring to a record suggesting a meter was installed at the BayParl property in 1984 but no one opened an account.

As a result, Justice Isaacs surmised: “It cannot be gainsaid that the meters were properly installed by BEC, perhaps as early as 1984.”

The case against Mr Wrinkle, who as BayParl’s property manager was an employee of its owner, Parliament Properties (a company beneficially owned by Phillip Hillier), stemmed from readings and inspections of its meters by BEC employees.

Nicholas Longley, a BEC meter inspector, visited BayParl in October 2010 to disconnect seven inactive meters. He discovered that one, TCE220, was active and, after researching its history, returned and disconnected it, placing a BEC lock on it.

Two other BEC employees visited BayParl in February 2011, noticed that the same meter was ‘on’ and disconnected it, knocking out the hallway, stairway and bathroom lights.

The following month, a BEC employee found that while the TCE220 meter was still off, the lights in the common area were on. The line “had been transferred” from that meter box to one numbered SA68795.

Ms Duncanson wrote to Mr Wrinkle about this, and the same month a BEC employee delivered a letter to a door marked Wrinkle Development, in the BayParl building.

Ms Duncanson met Mr Wrinkle on May 24, 2011, when she asked about two meters for which there were no active accounts but “sums of monies” outstanding. Mr Wrinkle denied any knowledge.

Two BEC staffers who visited BayParl in June 2011 found that the TCE220 meter was off, “but the load supply had been transferred to” SA68795. They then spoke to Mr Hillier about the situation.

Finally, in July 2011, three BEC employees went to BayParl accompanied by a police officer, where they met Mr Wrinkle and disconnected a meter marked ‘owner pp’. This knocked off power to the top floor, including Mr Wrinkle’s office.

The ex-BCA president was then taken to the Central Police Station, where he denied knowing that the meter was collected illegally, or that money was owed to BEC and that electricity had been disconnected before.

At trial in the Magistrate’s Court, Mr Wrinkle said he had done nothing illegal, although an electrician had been summoned to restore power when he realised it was off.

Justice Isaacs said the evidence given by the electrician, Brian Miller, showed he did not inform Mr Wrinkle that there was a BEC lock on the meter TCE220.

He added that Magistrate Rolle got key details wrong in his ruling, as the meters were not removed from BayParl until June 2011. And nor did Mr Wrinkle instruct Mr Miller to ‘alter the load’.

“There was no evidence that the work done by Mr Miller prevented the reading and correct meter consumption of the BEC meter, and there was certainly nothing on the prosecution’s case that the appellant directed Mr Miller to ‘alter the load’,” Justice Isaacs wrote.

He concluded: “The prosecution had to show a prima facie case at the close of their case that the appellant had dishonestly consumed BEC’s electricity, and this they singularly failed to do.”

Justice Isaacs said there was no evidence to prove Mr Wrinkle controlled Parliament Properties or its decisions, or that he had been illegally supplied with electricity to his office.

“The prosecution’s evidence disclosed that the appellant [Mr Wrinkle] had an office in the building, but so did the Government - the office of the Leader of Her Majesty’s Loyal Opposition [then Perry Christie] and others,” the judgment said.

“I would be prepared to accept that he could fall within the category of a person supplied with energy.... That state of affairs is a far cry from the proof necessary to satisfy a prima facie case that the appellant dishonestly consumed BEC’s energy.”

Justice Isaacs added: “The mere movement of electricity supply from one BEC meter to another cannot be sufficient to disclose dishonesty without more.

“The meters were BEC meters registering electricity usage but were not attached to any active account. Whose responsibility is that?

“BEC would not have opened accounts after a person applied for a supply and paid a deposit; and that BEC, according to the records, had installed the two meters. Further, both were capable of being read, and were in fact read by the meter readers.”