Criminal law: December 2017

Grajewski v Director of Public Prosecutions [2017] NSWCCA 251

Destroy / damage property – definition of ‘damage’

The Court of Criminal Appeal (‘CCA’) has determined that the offence of destroying or damaging property, perhaps counterintuitively, does not necessarily require actual damage.

The accused was a protester. He locked himself to a coal loading machine using a harness and roping device, then hung off the machine, rendering it inoperable while he was hanging there. He was convicted in the Local Court pursuant to s 195(1)(a) of the Crimes Act 1900, which is colloquially known as ‘destroy / damage property’. He appealed to the District Court, where he invited the judge to refer a so-called ‘stated case’ to the CCA.

Before the CCA (Leeming JA, Johnson and Adamson JJ agreeing) got to the heart of the matter, there was a preamble in which the CCA pointed out the problems of pursuing a stated case – a slightly obtuse procedure [this author’s description], which could have been avoided if the applicant had simply appealed directly from the Local Court to the Supreme Court on a question of law alone (at [4]-[5]).

That issue aside, the primary question was whether, by simply rendering the loader inoperable the offence had been committed, given the accused hadn’t actually caused it any damage (nor ‘derangement’, which is a fun if antiquated term regularly used in the case law to describe the same thing). There followed a comprehensive historical review which toured law going back as far as 1821 and earlier, including a reference to a piece of hardware known in the early 19^th century as a ‘half-dash jack’ (apparently used in the making of frame-work knitted stockings), and a 1865 case which literally dealt with a steam engine. That historical review confirmed a construction whereby ‘destroys or damages’ includes physical interference which obstructs the working of a machine or renders it useless, either permanently or temporarily (at [58]). This interpretation was found to cause no strain to the language of the section, was consistent with the legislative purpose, was not cotrary to the extrinsic materials, and was consistent with the considerable weight of authority (at [59]-[61]).

Nevertheless, there are questions of fact and degree: spitting on a raincoat may not involve damage (as established in one of the cases), whereas spit on a satin wedding dress might. However, those issues didn’t arise here, because the interference was for some two hours (at [64]). It followed that the case stated by the judge to the CCA at the accused’s request was answered against him (put another way: the accused lost).