Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Hammond v R [2013] NSWCCA 93
• Hearing dates: 11 March 2013
• Decision date: 10 May 2013
• Jurisdiction: Criminal
• Before: Hoeben CJ at CL at [1]; Slattery J at [2-79]; Bellew J at [80]

Decision

Question of law on stated case answered in the negative. The facts set out in the case stated do not support a finding of guilt for an offence contrary to Crimes Act 1900 s 195(1)(a), in particular the evidence is not capable of proving beyond reasonable doubt that the applicant's conduct had damaged the seat in question. Applicant's conviction quashed pursuant to Criminal Appeal Act 1912 s 5B(3).

• Catchwords: CRIMINAL LAW - case stated from District Court under Criminal Appeal Act 1912 s 5B - applicant convicted of one count of malicious damage to property under Crimes Act 1900 s 195(1)(a) - applicant spat on a stainless steel seat in police dock - whether evidence supports the element in the charge that the applicant had damaged the seat - meaning of "damages" in Crimes Act 1900 s 195(1)(a).
• Legislation Cited: Crimes Act 1900 (NSW); Criminal Appeal Act 1912 (NSW); Criminal Appeal Rules; Supreme Court Act 1970 (NSW)
• Cases Cited: "A" (a Juvenile) v R [1978] Crim L Rev 689; Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126; City of Hawthorn v Victorian Welfare Association [1970] VR 205; Collins v State Rail Authority of NSW (1986) 5 NSWLR 209; Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531; Director of Public Prosecution v Fraser and O'Donnell [2008] NSWSC 244; Edwards v Bairstow [1956] AC 14; Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302; Foster (1852) 6 Cox 25; Hardman v Chief Constable of Avon & Somerset Constabulary [1986] Crim LR 330; Industrial Equity Limited v Corporate Affairs Commission(Vic) [1990] VR 780; King v Lees (1948) 65 TLR 21; Lavorato v R [2012] NSWCCA 61; Morphitis v Salmon (1990) Crim Law Reports 48; R v Bowden (1957) (3) SA 148; R v. Fisher (1865) L.R. 1 C.C.R. 7; R v Hayne, Court of Criminal Appeal (18 September 1998) CCA 60496/97; R v Henderson & Battley Court of Appeal (Crim Div) (Unrep 29/11/84); R v Madden (1995) 85 A Crim R 367; R v Rigby [1956] HCA 38; 100 CLR 146; R v. Tracey (1821) Russ. & Ry. 452; 168 E.R. 893; R v Zischke (1982) Qd. R. 240; Ranicar v Frigmobile Pty Limited [1983] Tas R 113; Re Van der Lubbe (1949) 49 SR (NSW) 309; Samuels v Stubbs (1972) 4 SASR 200; Talay v R [2010] NSWCCA 308
• Category: Principal judgment
• Parties: Dion John Hammond (applicant); Director of Public Prosecution (respondent)
• Representation: Counsel: M Dennis (Applicant); H M Wilson (Respondent); Solicitors: Aboriginal Legal service; S. Kavanagh - Solicitor for Public Prosecutions
• File Number(s): 2012/13873

Decision under appeal

• Date of Decision: 2012-09-20 00:00:00
• Before: Lerve DCJ
• File Number(s): 2012/13873

Judgment

1 HOEBEN CJ AT CL: I agree with Slattery J.

2 SLATTERY J: The applicant was convicted in May 2012 in the Local Court of NSW at Warren of a single count under Crimes Act 1900, s 195(1)(a) of maliciously damaging the property of another, by the act of spitting on a stainless steel seat. He appealed against that conviction to the District Court sitting at Dubbo in its criminal and special jurisdiction. On 20 September 2012 his Honour Judge Lerve dismissed his appeal but, at the applicant's request, stated a case to this Court under Criminal Appeal Act 1912 s 5B. The point at issue on this case stated is whether the facts Lerve DCJ found are capable of supporting the applicant's conviction.

3 The Criminal Appeal Act s5B(2) authorises the submission of a question of law "even though the appeal proceedings during which the question arose have been disposed of", as the proceedings had been in this case. Lerve DCJ set out the essential facts that he had found in dismissing the appeal before him in the form of a case stated. On the basis of those facts he submitted the question for this Court's determination in the following form:-

Can these facts [the facts set out in the case stated] support a finding of guilt for an offence contrary to section 195(1)(a) of the Crimes Act 1900, in particular was the evidence capable of proving beyond reasonable doubt that the seat had been damaged by the conduct of Dion John Hammond?

4 The applicant submits that this question should be answered "no". And the respondent, the Director of Public Prosecutions, submits it should be answered "yes".

5 The procedure and powers of the Court upon the District Court's submission of a question of law are prescribed under Criminal Appeal Act s 5B:

5B

Case stated from District Court

(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.

(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.

(3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.

6 If the question stated by his Honour is determined in the negative, as the applicant contends it should, that determination would form the basis for an order quashing the applicant's conviction under Criminal Appeal Act s 5B(3). In the result this Court finds that the question should be answered in the negative and that his conviction should be quashed.

Crimes Act 1900 s 195 and the Case Stated

7 The disposition of the point at issue in part depends upon the proper construction of Crimes Act s 195. Crimes Act s 195, which bears the heading "Destroying or Damaging Property" lies within Crimes Act, Part 4AD - Criminal Destruction and Damage and then within Division 2 - Crimes Against Property Generally. Some of the legislative history of Crimes Act s 195 is recounted below. The section relevantly provides:

195 Destroying or damaging property

(1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:

(a) to imprisonment for 5 years, or

(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years.

(1A) A person who, in the company of another person or persons, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:

(a) to imprisonment for 6 years, or

(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 11 years.

(2) A person who, during a public disorder, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:

(a) to imprisonment for 7 years, or

(b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 12 years.

8 The Crimes Act does not define the word "damages" as it is used within Crimes Act s 195(1). But Crimes Act s 194(4) gives an inclusive but not exhaustive definition for the purpose of Crimes Act Part 4AD in relation to the occurrence of damage to particular items of property known as "unique identifiers" (being permanent marks - such as bar codes - that distinguish the property from other similar property). Crimes Act s 194(4) provides:-

(4) For the purposes of this Part, damaging property includes removing, obliterating, defacing or altering the unique identifier of the property. The unique identifier is any numbers, letters or symbols that are marked on or attached to the property as a permanent record so as to enable the property to be distinguished from similar property.

9 No such unique identifiers were said to have been damaged in this case. Although this inclusive definition provides an example of conduct that the legislation contemplates may amount to "damage" within s 195, its presence in the legislation throws little light on the application of s 195(1) to other forms of property.

10 The applicant did not take issue with the prosecution's contention that he had acted intentionally or recklessly. Nor did he take issue with the contentions that it was his act that caused the spit to be deposited on the seat within the police dock or that the seat was "property belonging to another". The full facts in the case stated were:-

"In determining the appeal against conviction by Dion John Hammond on 20 September 2012 I was satisfied of the following beyond reasonable doubt:

1. Dion John Hammond was apprehended by Constable Emily May of the Warren Police at the address of 18 Wilson Street, Warren, New South Wales at about 5.20pm on 13 January 2012;

2. Upon being apprehended he was taken in policy custody to the Warren Police Station;

3. Once at the Police Station at Warren he was placed in the dock area, which is used by police to detain persons who are in police custody at the Warren Police Station;

4. At the Warren Police Station he was charged with the offences commonly or shortly known as "Common Assault" contrary to s 61 of the Crimes Act 1900 and "Resist Police Officer in the Execution of Duty" contrary to s 58 of the Crimes Act 1900;

5. While so detained at about or shortly before 7pm (time is taken from the original Court Attendance Notice, part of the Tender Bundle tendered by the Crown and marked as Exhibit A on the Appeal) projected spittle or mucus from his mouth causing it to land on the metal seat of the dock. The amount of spittle or mucus was considerable. The substance so projected is depicted in the photograph marked Exhibit "D" on the appeal before me;

6. The act of Dion John Hammond in so projecting that spittle or mucus was an intentional act;

7. No permanent or ongoing damage was occasioned to the dock of the Warren Police Station; and

8. Police informed Dion John Hammond that the presence of the spittle or mucus in the dock area would require professional cleaning.

Inferences drawn

I drew an inference that the dock area of the Warren Police Station had to be cleaned. I drew a further inference that such cleaning required some degree of effort by some person."

11 With one qualification, these stated facts are a complete description of the facts necessary to resolve the contest on this appeal. Criminal Appeal Act s 5B(2) restricts the resources that appellate courts may deploy in their reasoning on a stated case. These restrictions have often been emphasised. In Collins v State Rail Authority of NSW (1986) 5 NSWLR 209, at 211, per Street CJ (Slattery CJ at CL and Yeldham J agreeing) called the procedure, "... a cumbersome and often unsatisfactory means of bringing a matter up for consideration on appeal ... fraught with difficulties..." The case stated must contain "at least a statement of all the ultimate facts which in the opinion of the judge [in the court below] dictated his ultimate conclusion ... the case must state the ultimate facts including those found by inference, but not the evidence on which the ultimate facts were founded": Industrial Equity Limited v Corporate Affairs Commissioner [1990] VR 780. Upon a case stated the Court's authority is limited to ascertaining from the contents of the case stated what are the ultimate facts and not the evidentiary facts and the Court may not have regard to matters outside the stated case: R v Rigby [1956] HCA 38; 100 CLR 146 and R v Madden (1995) 85 A Crim R 367 applying Re Van der Lubbe (1949) 49 SR (NSW) 309, at 312.

12 The present stated case was generally drafted in conformity with these principles. This Court can rely upon the case as a complete statement of the District Court's ultimate findings on the appeal.

13 But there is one qualification to this assumption of completeness. Both parties accepted in their respective arguments that the "metal seat" described in the stated case was actually comprised of stainless steel. This fact was a common feature of the parties' arguments. The facts Lerve DCJ stated certainly included a reference to the "metal seat of the dock". But they do not include an ultimate finding that the metal of the seat was stainless steel.

14 The Court can accept the parties' consensus about that fact in their conduct of the appeal, although it makes no difference to the result. There are examples of Courts departing from this strict rule for the purpose of dealing with stated case proceedings "within the constraints of their deficiencies"; see City of Hawthorn v Victorian Welfare Association [1970] VR 205 and Talay v R [2010] NSWCCA 308. On this minor factual issue, which does not affect the result, I will adapt to the deficiencies of this stated case by having regard, as both parties have done in their submissions, to the fact that the metal seat in question was of stainless steel.

15 But on the materials before this Court there are clear limits as to what inferences are open. Exhibit D, which is the photograph of the seat, seems only to be referred to in Lerve DCJ's findings to show that the seat in question had been clearly identified. But Exhibit D itself did not become a part of the stated case. So no inference about the appearance of the seat could be drawn directly from exhibit D on the hearing of the stated case. This approach is consistent with the requirements of Rule 29 of the Criminal Appeal Rules made under the Supreme Court Act 1970. Criminal Appeal Rules r 29 provides:-

29 Submission of question of law

Any question of law submitted to the Court for determination under sections 5A, 5B or 5BA of the Act shall be in writing and signed by the Judge. Such submission shall be sent to the Registrar together with a summary of the evidence and a statement showing the names of the parties and their legal representatives, if any.

16 Exhibit D was referred to in, but was not itself a part of, the "summary of the evidence" in the stated case under Criminal Appeal Rules r 29.

Two Procedural Issues

17 Two preliminary procedural issues arise. The applicant did not bring his application within the 28 days that Criminal Appeal Act s 5B(2) requires. The question thus arises whether leave should be granted under Criminal Appeal Act s 5B(2). The respondent also contended that the applicant had not submitted "a question of law" within Criminal Appeal Act s 5B(1) for this Court's determination. Both those preliminary procedural issues should be determined in the applicant's favour.

18 An extension of time. The applicant's submission of the stated case was marginally out of time. It was submitted a few days beyond the time limited under Criminal Appeal Act s 5B, which requires its submissions "not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow". The applicant's appeal was dismissed on 20 September 2012. Therefore the permitted 28 day period expired on 18 October 2012. Lerve DCJ signed the stated case on that day, 18 October 2012, and it was submitted to this Court and marked as filed on 26 October 2012, just after the 28-day period had expired. The applicant therefore needed an extension of time until 26 October 2012.

19 The applicant did not expressly make an application for extension of time. And he did not make any submissions in relation to factors favouring an extension. The respondent submitted that the leave of the Court is required for this matter to proceed. But it did not oppose the extension nor did it point to any factors to be weighed against granting the extension. The delay was very minor: a matter of only a few days. Applicants do not control the time within which judicial officers settle the final form of a stated case for submission under Criminal Appeal Act s 5B. Courts have often emphasised the need to observe the time limits set by s 5B, but usually in a context of much longer delay and where there are contests about the form of the case stated: Lavorato v Regina [2012] NSWCCA 61, at [5] - [18] and Elias v Director of Public Prosecutions (NSW) [2012] NSWCCA 302, at [10] - [17].

20 Some flexibility should be afforded to this applicant for this very minor delay. Lerve DCJ signed the stated case on the date on which it was due to be filed. The matter is one in the Court's discretion. In my view in the circumstances it is appropriate to grant the necessary extension of time.

21 A question of law. Cases stated under Criminal Appeal Act s 5B(1) must be limited to questions of law. The applicant argued that the question posed by Lerve DCJ was a question of law. The respondent disagreed.

22 The test of what is a question of law for the purpose of statutory provisions such as Criminal Appeal Act s 5B(1) is well established. In Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126, at 137-8 Jordan CJ stated the distinction between a question of law and a question of fact (or a mixed question of law and fact). Without the supporting authorities his Honour cited, Jordan CJ's statements of principle may be summarized in the following terms:

(1) The question what is the meaning of an ordinary English word or phrase as used in the State is one of fact not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence. Evidence is receivable as to the meaning of technical terms. And the meaning of a technical legal term is a question of law.

(2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact.

(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its inferences.

(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or (c) if it has misdirected itself in law. Thus if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law.

23 The respondent contended that the facts inferred by the District Court "are capable of being regarded as either within or without the description [of damage], according to the relative significance attached to them" and accordingly this is not a decision which can be disturbed by a Court which can determine only questions of law. The respondent further submitted that this was not a case in which there is no evidence to support the determination, nor is it one in which the evidence is inconsistent with and contradictory of the determination, nor one in which the only true and reasonable conclusion contradicts the determination: see also Edwards v Bairstow [1956] AC 14, at 36. The respondent contended that the present application involved no more than deciding the meaning of an ordinary English word, "damages", used in a statute or deciding whether a particular set of facts comes within such a phrase, which are only questions of fact.

24 But the applicant's submissions are the more persuasive on this question. The applicant points out that the question for determination is framed to raise only a question of law: "was the evidence capable of proving beyond reasonable doubt that the seat had been damaged?" The applicant is only asking the Court to decide whether the facts actually inferred by the District Court are necessarily outside the meaning of "damages" in Crimes Act s 195(1) and therefore incapable of supporting a conviction beyond reasonable doubt. The applicant accepts all Lerve DCJ's findings of fact and contends on the basis of Jordan CJ's statement in Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126, at 137-8 that the question is one of law. I agree it is a question of law. It comes within Jordan CJ's category (4): the applicant contends that facts inferred by the tribunal below from the evidence before it are necessarily outside the description of a word "damages" in this statute, so that a contrary decision is said to be wrong in law.

25 This leads to an examination of the parties' respective contentions on the case stated.

The Parties' Submissions

26 The parties' respective submissions may be shortly stated. Both parties accepted that the Crimes Act itself did not anywhere define the verb "damages" within s 195, other than the limited inclusive definition in s 194(4), and that it was necessary therefore to look at the course of authority to determine the meaning of the word in this provision.

27 The applicant's argument. The applicant's argument was put in two parts. The applicant first argued that mere functional interference does not form part of the meaning of "damages" in s 195 but that some material or physical damage is always required to make out a s 195 offence. Then, the applicant argues that findings as to what physically happened to the seat in this case could not establish material change to the seat so as to constitute s 195 "damage".

28 (1) Material damage is necessary. The applicant first submits: that some physical alteration, derangement or interference with the physical integrity of an object is necessary for the prosecution to establish that "damage" to the object has occurred, or for a tribunal to conclude that a person "damages" it; and that mere interference with the functionality of the object is not "damage" within s 195(1). The applicant put his submission the following way:-

"..defacing a stainless steel chair by spittle, in circumstances where the said chair is designed for and situated within a holding cell at a police station, is not capable of establishing "damage", as there was no physical alternation, derangement, or interference with the physical integrity of Dock 1."

29 The applicant based his submission on certain statements of principle of Simpson J in Director of Public Prosecution v Fraser and O'Donnell [2008] NSWSC 244 ("Fraser"). In Fraser her Honour said (at [38]):

Interference with functionality alone, without "physical derangement" would, in my opinion, be insufficient to establish damage within the meaning of s 195 [of the Crimes Act].

30 It was conceded in brief oral submissions on the applicant's behalf that if this Court decides that the decision in Fraser was wrong, then the applicant necessarily fails, because the District Court's findings included findings that there was a temporary interference with the functionality of the dock: Lerve DCJ inferred that "the dock area of the Warren Police Station had to be cleaned", presumably because it was unhygienic and could not be used for its proper function, until it was cleaned. For the reasons given below this concession was perhaps a little too generous when the facts found in the stated case are fully analysed.

31 (2) No material damage to the seat here. The question arises next in the applicant's argument as to what material change to the seat would constitute s 195 "damage". The applicant concedes in submissions that his actions amounted to a defacement of the chair, in the sense that its appearance was altered. But pointing to a number of cases, which deal with defacement of objects, he argued that a conclusion that the defacement amounted to "damage" within the meaning of s 195 was not open on the facts here.

32 The applicant submitted that both generally and in the defacement cases authority requires consideration of two elements: the surface of the object defaced (here the chair) and the constitution of the substance defacing it (here spittle or mucus).

33 The applicant submits the chair was made of stainless steel, which "is a non-porous, non-permeable and stain resistant surface incapable of being physically damaged by spittle". The applicant concludes that spittle could not have bonded with the chair. It could have been easily removed without causing damage to the chair and therefore interference with the physical integrity of the chair was not demonstrated.

34 The applicant concedes that Dock 1 was rendered temporarily inoperable during the period of time that it would have taken to clean it. But the applicant submits that this is a purely functional issue, something very different to suggesting a physical alteration to the chair: adapting Simpson J's words in Fraser, the applicant submits there was no damage here, merely an "interference with functionality". Again as these reasons later demonstrate, even this concession may be too generous upon closer analysis of the facts actually found in the stated case.

35 Moreover, the applicant argues that having the dock professionally cleaned and presumably incurring the associated cost of such cleaning, instead of simply wiping away the spittle, was the choice of those administering the Warren Police Station and does not establish damage.

36 Lastly the applicant submits that, for policy reasons, the facts of this case should not be classified as "damage" in s 195: to do so would extend the breadth of the offence and would render criminal a broad range of quite innocuous conduct. The applicant gives examples of conduct that would be criminalised were his submissions not accepted. The applicant presents the example of a person deliberately choosing to leave a dinner plate or other utensil unwashed, so that the food contents on the plate dried and hardened over time; such a plate with a hard porcelain surface could no doubt be washed without any permanent damage. But the washing of the plate would require strenuous physical labour later and would therefore qualify as s 195 "damage" if material damage to the surface of the object is not required.

37 The respondent's argument. The respondent takes issue with both the applicant's main arguments. The respondent submits in reply: (1) that Crimes Act s 195 "damage" may include mere loss of functionality and that material damage is not an essential requirement; and, (2) that the physical changes to the seat here are not necessarily outside s 195 "damage".

38 (1) Material damage is not necessary. The respondent submits that if Simpson J's decision in Fraser requires some physical injury interfering with the fabric or the integrity of the property in question, beyond interference with the function of the property, then: the decision represents an unduly restrictive narrowing of the interpretation of the word "damage"; and it is at odds with the course of previous authority, which has developed a more flexible approach and allows Courts to consider the particular facts of each case and the property in its context when deciding what is or is not "damage" within Crimes Act s 195.

39 (2) Physical changes here qualify as "damage". The respondent contends that Simpson J's analysis of the term "damage" in Fraser does require some physical derangement, interference or alteration of the property in question but that it need not be permanent, or even lasting. And the respondent submits: that Lerve DCJ found that placing the spittle on the chair involved such physical derangement and not an interference with functionality only, and so it was s 195 "damage"; and, that such finding was open to his Honour on the facts before him.

40 The respondent also replies to the applicant's policy based argument. The respondent says that narrowing the meaning of "damage", as the applicant appears to be advocating, is not appropriate. The respondent foresees that with the increasing development of modern technology new and developing forms of property might be capable of being damaged in various ways, which may not necessarily involve physical change or impact. The respondent submits that the broader interpretation of "damage" authorised under existing authority should be maintained.

41 Summary of conclusions on these submissions. These reasons do not fully accept either the applicant's or respondent's submissions. Rather they conclude: (1) that the course of authority supports the respondent's submissions that mere interference with the functionality of an object (without material damage) may constitute s 195(1) "damage"; (2) that it is not necessary to show that physical damage has occurred to the object to make out s 195(1) "damage"; but (3) that facts found in the stated case do not support the conclusion beyond reasonable doubt that any material damage or functional interference was caused to the seat.

The course of authority on s 195 "damages"

42 The case law in relation to Crimes Act s 195(1) dates back to the early industrial revolution, when its predecessor legislation was first passed. As the Queensland Court of Criminal Appeal explained in R v Zischke (1982) Qd. R. 240 at 244E-G ("Zischke"), provisions such as the Criminal Code (Qld) s 469 (which is substantially equivalent to Crimes Act s 195 (1)) had their origins in a statute 24 and 25 Vict Chapter c. 97, known variously as the Malicious Damage Act and the Malicious Injury to Property Act which was passed in England in 1861. That enactment was itself a consolidation of a number of earlier statutes, which dealt with diverse acts of damaging fish-ponds, dams, crops, farm animals, machines or engineering works. As the Queensland Court of Criminal Appeal explained in Zischke, many of those particular provisions were designed to suppress the activities of early nineteenth century Luddites. But Section 51 of the Malicious Injury to Property Act of 1861 which became a model for the provisions of colonial legislatures (and which model, for example, ultimately found its way into Crimes Act s 195(1)) represents an attempt to formulate a general offence in respect of property of all types. Some of the early cases predate the passage of the Malicious Damage Act 1861 and are concerned with conduct in relation to machinery.

43 In Zischke the Queensland Court of Criminal Appeal undertook its own comprehensive survey of these early cases, which that Court concluded demonstrated "both the width of the expression 'damages' [used as a verb] and the variety of means available for injuring one's neighbour by acts directed against his property". The Queensland Court of Criminal Appeal considered (at 245B - 246B) the principal 19th century authorities and some 20th century applications of them in the following way:-

Dismantling machinery was in R v. Tracey (1821) Russ. & Ry. 452; 168 E.R. 893 held to constitute a form of damage to it; as also was dislocating it: see Foster (1852) 6 Cox 25. In R v. Fisher (1865) L.R. 1 C.C.R. 7 a disaffected employee dismantled and wrongly re-assembled a boiler, plugging up a pipe forming part of it so as to render it temporarily useless and liable to burst if used. Although there was no "actual damage", his conviction was upheld, Pollock C.B. remarking that "great injury may be done to a machine by the displacement of its parts". The decision may have rested in part on the terms of the provision in question which spoke of "damage with intent to render useless"; but Piggot B. suggested in arguendo that there was damage "because labour was required to re-instate the machine", and Willes J. that "there was a lesion in the sense of a dislocation". The decision has been followed in Northern Ireland in Getty v. Antrim County Council [1950] N.I. 114, where the plaintiff's tractor was dismantled.

Other activities resulting in convictions have included adding water to milk, which had to be thrown away: Roper v Knott [1898] 1 Q.B. 868, although the decision in that case may have been influenced by the presence of the word "spoil" as well as "damage" in s. 51 of the Act of 1861; The same may perhaps be said of the decision in R v. Maund (1866) 1 W.W. & a'B. (L) 96, where the Full Court of Victoria upheld a conviction for malicious damage arising from the scattering in the complainant's wheat field of seeds of noxious weeds (sorrell, drake and wild oats) where they germinated. Except as a conclusion of fact, it is considerably more difficult to justify the decision in Gayford v. Chauler [1898] 1 Q.B. 316 that walking across grass, described as "knee-deep", constituted damage. Another case which may be thought to come close to the limits is the decision of the Supreme Court of Ireland in Rexi Irish Mink Ltd. v. Dublin County Council [1972] I.R. 123 where it was held that deliberately allowing breeding mink to escape amounted to "damage" under the Act of 1861 because the mink, although recaptured, were thereafter no longer individually identifiable and were therefore valueless for breeding purposes. Fitzgerald J., who dissented, did so essentially on the ground that the mink were rendered less valuable "not because of any injury to them but because of the owner's inability to identify them" ([1972] I.R. 123, 142). The same thought underlies the [1983] 1 Qd R 240 at 246 decision of Jarvis J. in R v. Nyawo (1966) 2 S.A. 61, in the Supreme Court of what was then Rhodesia, refusing to uphold a conviction for malicious damage where the accused had pulled away the stays holding a stack of sugar cane which it had taken time and labour to compile. His Lordship considered that, although the stack was destroyed, the property to which damage had to be proved was the sugar cane and not the stack.

44 Cases as early as Tracey in 1821, Foster in 1852 and Fisher in 1865 show that merely dismantling machinery so as to render it non-functional, but without there being additional evidence of physical injury, may yet amount to "damage" within this and equivalent legislation. As these reasons will show, later cases have often applied this reasoning.

45 Developments in technology in the 20th century led to the application of malicious damage legislation to new materials and new kinds of machine. For example in King v Lees (1948) 65 TLR 21 a divisional court held that a person who urinated on the mat of a taxi cab had injured the cab even though the injury could be put right "quickly and easily leaving no after-effect". Even daubing paint on statues, thereby disfiguring them, but in such a manner that they can be restored, although only with expense and difficulty, was nevertheless held to amount to damage within equivalent legislation: R v Bowden (1957) (3) SA 148 (applying the English law offence of malicious damage to property received into the Roman-Dutch law of South Africa).

46 But in the last three decades of the 20th century developments in the relevant case law accelerated. Many of the cases in this later period arose out of acts of political protest or the causing of harm to computers. The first Australian example in this period is Samuels v Stubbs (1972) 4 SASR 200 ("Samuels v Stubbs"), a case in which the defendant was charged "with having wilfully and without lawful authority destroyed or damaged a cap, the property of a police officer, contrary to s 43 of the Police Offences Act (SA) 1953 - 1972." The police officer's cap had fallen to the ground whilst he was attempting an arrest during an anti-war demonstration. The defendant had kicked the cap and then jumped on it with both feet. The cap was crushed but not recovered. Another person had removed it from the scene. In Samuels v Stubbs Walters J, sitting on appeal from a dismissal of the charge, emphasized the difficulty of laying down any general rule about what may constitute damage and pointed out that the meaning of the word "damages" must be controlled by its context. In the relevant context his Honour considered that damage might be proved by a "temporary functional derangement" of the particular property, namely the cap. This is what he said (at 203):-

The word "damage" in law has more than one meaning, and care has to be exercised in examining the context in which the word appears (cf. Swansea Corporation v Harpur [1912] 13 KB 493, per Fletcher-Moulton LJ at p 505). It seems to me that it is difficult to lay down any very general and, at the same time, precise and absolute rule as to what constitutes "damage". One must be guided in a great degree by the circumstances of each case, the nature of the article, and the mode in which it is affected or treated. Moreover, the meaning of the word "damage" must, as I have already said, be controlled by its context. The word may be used in the sense of "mischief done to property", as distinct "from injury done to the person", so that the term "damage" may not necessarily "be employed interchangeably with the term 'injury' with reference to mischief wrongfully occasioned to the person" (cf. Smith v Brown (1871) LR 6 QB 729). It is my view, however, the word "damages", as it is used in s 43, is sufficiently wide in its meaning to embrace injury, mischief or harm done to property, and that in order to constitute "damage", it is unnecessary to establish such definite or actual damage as renders the property useless, or prevents it from serving its normal function - in this case, prevents the cap from being worn.

In my opinion, it is sufficient proof of damage if the evidence proves a temporary functional derangement of the particular article of property. I think that an offence is committed against the section if there be wilful and unauthorised injury, mischief or harm to property, even though no loss to the owner of the property ensues; that a distinction may be drawn between damage to property and the consequent loss or damage to the owner of it. (cf. Roper v Knott *1872) lr 4 pc 184, AT P 191 PER Lord Russell CJ at p 872).

47 Walters J found that the constable's cap was damaged in that it was "injured or harmed in such a way to cause temporary derangement of its function and of the purpose which it was normally to serve". His Honour concluded that the defendant should be convicted. His Honour's description, "functional derangement", has been subsequently used as a formula for testing whether damage has occurred due to loss of function or usefulness.

48 In 1978 further judicial exegesis of the expression "damages property" in this and equivalent legislation first appeared. In that year an English Crown Court in "A" (a Juvenile) v The Queen [1978] Crim L Rev 689 ("A" (a Juvenile)" formulated and applied a test of whether a person "damages property", which test has since been considered with approval and applied at appellate level in Australia.

49 The case in question, "A" (a Juvenile), is not only a source of subsequent Australian authority, but it also bears a close factual resemblance to the present case. The defendant had spat once on a police sergeant's raincoat. The sergeant was unaware of the incident occurring but attempted to remove it later with a paper tissue. The defendant was arrested and charged and as a result no further attempts were made to clean the raincoat. At the hearing, when the uncleaned raincoat was produced, a faint mark could be seen on it. The prosecution contended that the raincoat required dry cleaning and must therefore have been "damaged". The defence contended that there was no case to answer because the prosecution failed to prove any damage. The defendant was convicted and appealed. The Crown Court in allowing the appeal said the following:-

that when interpreting the word "damage", the court must consider the use of an ordinary English word. Spitting at a garment could be an act capable of causing damage. However, one must consider the specific garment which has been allegedly damaged. If someone spat upon a wedding satin dress, for example, any attempt to remove the spittle may in itself leave a mark or stain. The court will find no difficulty in saying that an article had been rendered "imperfect" if, after a reasonable attempt at cleaning it, a stain remained. An article may also have been rendered "inoperative" if, as a result of what happened it has been taken to dry-cleaners.

However, in the present case, no attempt has been made, even with soap and water, to clean the raincoat, which was a service raincoat designed to withstand elements. Consequently, there was no likelihood that if wiped with a damp cloth, the first obvious remedy, there would be any trace or mark remaining on the raincoat requiring further cleaning. Furthermore, the raincoat was not rendered "inoperative" at the time; if it was "inoperative", it was solely on account of being kept as an exhibit.

Thus, in the view of the court, nothing occurred which could properly be described as damage.

50 The appellant's conviction in "A" (a Juvenile) was quashed. But the case introduced a new judicial approach to analysis of the various equivalents of Crimes Act s 195, an approach, which Courts have sometimes found to be of practical assistance. It may not be a test that will readily suit every case. In my view it is an approach that is useful for the present case. The "A" (a Juvenile) test requires the Court to look at the specific property in question and consider: (i) whether its physical appearance changed as a result of the act, despite reasonable attempts at cleaning, so that it may be described as "imperfect"; or (ii) whether as a result of the act the property was rendered "inoperative", or unable to be used for its ordinary functions for a period whilst its imperfections were eliminated. If the property can be described as either "imperfect" or "inoperative" in these senses, then the property has been "damaged" within the meaning of Crimes Act s 195 and cognate legislation in relation to malicious damage to property.

51 Four years later, in 1982 the Queensland Court of Criminal Appeal (Campbell CJ, and Matthews and McPherson JJ) applied "A" (a Juvenile) in Zischke. The appellant in Zischke had been convicted on 11 counts of wilful damage to property by painting political slogans on the surface of buildings, footpaths and walls in public places. The Queensland Court of Criminal Appeal considered the authorities already referred to and applied a test of "damage" that was directly based on that formulated in "A" (a Juvenile), namely whether the act rendered the object "imperfect or inoperative". The Court decided that the reasoning in Samuels v Stubbs could also readily be accommodated within the "A" (a Juvenile) formula:

What emerges from a review of the decisions is that "damage" may be held to have been done even though the injury to the article of property is not permanent but is remediable, if only by the expenditure of money. Probably the formula that most nearly embraces all the attempts at definition is that a thing is damaged if it is rendered imperfect or inoperative: see "A" (a Juvenile) v. The Queen [1978] Crim. L. Rev. 689. This would incidentally also serve to accommodate the decision in Samuels v. Stubbs (1972) 4 S.A.S.R. 200, where a conviction of damaging a policeman's cap was sustained by proof that the respondent had kicked it three times and then jumped on it, thus producing what was described as a "temporary functional derangement" of the article in question.

In the present case what was done is fairly capable of being described as rendering imperfect the objects to which the paint was applied. It was not in our view essential to the success of the prosecution to establish that an expenditure of money was required to remedy the state of affairs produced by the paint, although proof of such expenditure may afford helpful evidence of the fact and extent of the imperfection created. This being so, His Honour's direction on this point correctly and properly left it to the jury to determine as a fact whether or not, by applying the paint, the accused had damaged the property to which it was applied.

52 On this basis, in Zischke the Court upheld the defendant's conviction; there being evidence of expense and effort expended by or on behalf of property owners to obliterate the painted words from the surfaces on which they appeared.

53 Two years later, in 1984 another judicial formula for the establishing of malicious "damage" emerged. In R v Henderson & Battley Court of Appeal (Crim Div) (Unrep 29/11/84) ("Henderson & Battley") involved the dumping of soil, rubble and mud onto a development site. The persons who dumped that material were convicted of damaging the land and the Court of Appeal upheld their conviction. It was found in Henderson & Battley that a significant sum of money had to be spent to remove the rubbish and to restore the land to its pre-existing condition. Cantley J's approach to whether or not damages had occurred was based on the concise Oxford Dictionary definition of "damage" as "injury impairing value or usefulness" (the Macquarie Dictionary definition is similar). His Honour said on this subject:

Ultimately whether damage was done to this land was a question of fact and degree for the jury. Damage can be of various kinds. In the Concise Oxford Dictionary 'damage' is defined as 'injury impairing value or usefulness'. That is a definition which would fit in very well with doing something to a cleaned building site which at any rate for the time being impairs its usefulness as such. In addition, as it necessitates work and the expenditure of a large sum of money to restore it to its former state, it reduces its present value as a building site ..."

54 The Court of Appeal had held that the usefulness of the site had been temporarily impaired and upheld the defendant's conviction. Whether or not physical damage had occurred to the site was not considered in Henderson & Battley. But by 1990 it was to become clearer on the English authorities that malicious damage may be constituted either by physical material change to the property or by impairment of value or usefulness.

55 But the formula in Samuels v Stubbs was still widely applied. In Hardman & Ors v The Chief Constable of Avon and Somerset Constabulary (1986) Crim. L Rev. 330 the Crown Court considered the appeal of a number of defendants who were convicted of causing criminal damage to a pavement during a nuclear disarmament demonstration. They had painted an unstable whitewash on the pavement which was expected to wash away with rain over time. But the local authority had decided to clean the pavement using high pressure water jets. The appellants contended there had been no damage to the pavement. "A" (a Juvenile) was cited to the Crown Court but it considered an "unduly narrow definition of damage" was not appropriate and took direction from the words of Walters J in Samuels v Stubbs that "one must be guided in a great degree by the circumstances of each case, the nature of the article and the mode in which it is affected or treated". The Court found that there had been damage in the sense of "mischief to property", citing Samuels v Stubbs, which had caused expense and inconvenience to the local authority.

56 In Morphitis v Salmon (1990) Crim Law Reports 48 the Queens Bench Division (Lloyd LJ and Auld J) quashed the appellant's conviction by magistrates under Criminal Damage Act 1971 (UK) s 1(1) for damage to a scaffolding clip and bar erected as part of a barrier over a common access way. Auld J, in a judgment in which Lloyd LJ agreed, restated that determining whether damage done in any particular case is a matter of "fact and degree". After citing Cantley J in Henderson & Battley, his Honour said:

Whether the damage ... was caused in any particular case was a question of fact and degree and could be of various kinds ... It included not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.

57 Again Auld J continued and made clear that physical harm and impairment of usefulness were alternative ways of establishing malicious damage:

The authorities show that the term "damage" for the purpose of this provision, should be widely interpreted so as to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness.

58 The charge in Morphitis v Salmon was only in respect of damage to the scaffold bar and clip, not the larger barrier of which it was a part. The distinction between the two became important on the appeal because the magistrates had found there was no actual physical damage to the bar and clip that could be attributed to the appellant. There was no doubt that the usefulness of the barrier as a whole had been impaired by the removal of the individual bar and clip. But because the charge related only to the bar and clip the question was whether their removal had impaired their usefulness. The case demonstrates the importance of analysis of the use and function of the precise property the subject of the charge, when impaired usefulness is in question. Auld J said:

Even if the scratches had been capable of being attributed to the appellant, it is apparent from the case stated and the findings of the magistrates, that there was no evidence before them upon which they could have found that it constituted damage in the sense of impairment of value or usefulness on what were, after all, scaffolding components. The scratching of a scaffolding bar is an ordinary incident of its existence and it is unlikely that the magistrates, if they had considered the matter, would have been entitled to find that it constituted damage in the sense that I have described.

The main question for this court is whether the dismantling of the barrier constituted damage to the bar and to the clip in the wide sense of impairment in their value or usefulness as part of the barrier.

Many of the reported cases concern allegations of criminal damage to an article by reason only of the removal of some part of it although no physical damage was caused to the article in question or to the part removed. In such case, where the owner is left, albeit temporarily, with an incomplete article which does not fully serve the purpose that it did before the removal of the part, there has clearly been damage to the article as a whole. Thus, in R v Tacey (1821) Russ & Ry 452, there was held to be damage to a stocking frame where a part was removed from it rendering it inoperative. In R v Fisher (1865) 29 JP 804; (1865) LR 1 CCR 7, the mere tampering with a machine so that it would not work was held to be damaged although no part of it was removed or broken. And in Getty v Antrim County Council (1950) NIR 114, the dismantling of a plough without damage to any of the dismantled parts, was held to be damage to the plough.

A more up-to-date example of criminal damage is Cox v Riley (1986) 83 Cr App R 54. In that case, the Court of Appeal upheld a conviction where the appellant had deliberately erased a computer programme from a plastic circuit card of a computerized sort so as to render it inoperable.

However, the matter is different, as in this case, if the charge is one of criminal damage to the part removed from some other object and not to the larger object itself and where there is no physical damage to the part removed. See eg R v Woodcock [1977] Crim LR 104 and 161.

59 The case is also instructive because it illustrates the need to have regard to matters of fact and degree: the scratches to the scaffolding, though constituting material alterations to the surface of the bar were nevertheless consistent with its ordinary use. Moreover the case indicates against the overly rigid formulation of requirements for physical harm to property or impairment of its value or usefulness.

60 In R v Whiteley (1991) 93 CR App R 25 the Court of Appeal considered an appeal of a computer hacker against his conviction under the Criminal Damage Act (UK) 1971, legislation which is in similar terms to Crimes Act s 195(1). No physical damage had been caused to the discs of the computer by the hacker's conduct, which had involved rewriting the information on the discs. But the result of the hacker's actions was that the computer's programs did not work as intended and time and effort had to be spent in replacing them. After reviewing the authorities including Henderson v Battley, Morphitis and Salmon and the computer damage case Cox v Riley (1986) 83 Cr. App R.54 , Lord Chief Justice Lane held [at 29]:

Morphitis v Salmon [1990] Crim.L.R. 48 was another decision of the Divisional Court. The facts of the case are immaterial, but in the course of delivering his judgment, but in the course of delivering his judgment, with which Lloyd L.J. agreed, Auld J, in the transcript of the judgment, having cited the decision in Cox v Riley (1983) 83 Cr.App.R. 54 said this:

"The authorities show that the term 'damage' for the purpose of this provision, should be widely interpreted so as to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness."

The effect of those various decisions, in our judgment, is as follows: Any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. Whether it does so or not will depend upon the effect that the alteration has had upon the legitimate operator (who for convenience may be referred to as the owner). If the hacker's actions do not go beyond, for example, mere tinkering with an otherwise "empty" disc, no damage would be established. Where, on the other hand, the interference with the disc amounts to an impairment of the value or usefulness of the disc to the owner, then the necessary damage is established.

61 In the result the Court of Appeal dismissed the appellant's appeal against conviction. In my view by 1991 English authority was clear that malicious damage could be occasioned either by physical harm, or by impairment of value or usefulness.

62 But Australian authority was also advancing. In R v Hayne, Court of Criminal Appeal (18 September 1998) CCA 60496/97 - unreported ("Hayne"), this Court (Handley JA and Levine and James JJ) said it "had no reason to doubt the correctness" of Samuels v Stubbs. In Hayne this Court was considering an appeal against conviction for manslaughter by an unlawful and dangerous act, namely the act of pouring petrol throughout a house, which then accidentally ignited, causing the death of an occupant. On the issue of whether that act was unlawful, this Court applied Samuel v Stubbs, Hardman v Chief Constable of Avon, and Morphitis v Salmon. But the Court does not seem to have been referred to Zischke or "A" (a Juvenile). The Court held that whether the pouring of petrol be described as a Samuel v Stubbs "temporary functional derangement" or a Morphitis v Salmon "temporary impairment of value or usefulness", the act of pouring the petrol qualified as malicious damage to property under Crimes Act s 195 and was therefore "unlawful".

63 This Court in Hayne did not have to choose between the formulae in Samuels v Stubbs and Morphitis v Salmon (nor consider Zischke) to reach this result. This is not surprising. As Walters J explained in Samuel v Stubbs "it is difficult to lay down any very general and, at the same time, precise and absolute rule as to what constitutes 'damage'". And as Lloyd LJ and Auld explained in Morphitis v Salmon "whether damage...was caused in any particular case was a question of fact and degree and could be of various kinds". The courts' approach to what constitutes "damage" will vary from case to case. But the judicially developed formulae of past cases do assist in determining whether damage has been caused in any particular case. But sometimes particular formulae will be more useful for analysis of the facts. Looking ahead at the facts of this case, involving as it does fluid on the surface of a seat, the approach taken in "A" (a Juvenile) seems particularly apt. But as will be seen, all the different judicial formulae would in my view produce the same result in this case.

64 Finally, the course of authority is completed with two cases decided in the last decade; one in England in 2005 and the other in this Court in 2008. In R v Fiak (2005) EWC Crim 2381 ("Fiak") the appellant had been arrested for being drunk in charge of a car and assaulting a police officer. He was convicted before a jury of criminal damage under the Criminal Damage Act (UK) s 1(1) and appealed. After being placed in a police cell overnight he had put a blanket down the toilet and repeatedly flushed it, flooding his cell. The appellant's argument that clean water on a waterproof floor could not constitute 'damage' was unsuccessful. Judge LJ and Rafferty and Hallett JJ applied the principles cited above from Morphitis v Salmon and Whiteley, that damage may include not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness. Their Honours found that the blanket could not be used as a blanket until it had been dried and that the cell was out of action until the water was cleared. Their Honours also held it was open to the jury to conclude that the blanket and cell had been damaged within Criminal Damage Act s (1)(1) (UK) and the appeal against conviction was dismissed.

65 The last decision in this survey of authority is DPP v Fraser and O'Donnell (2008) NSWSC 244 ("Fraser"). The appellant placed emphasis on this case in his submissions. In Fraser Simpson J was considering a DPP appeal against the dismissal of charges under Crimes Act s 195 against members of an environmental protest group, who put a coal conveyor belt out of operation for almost 2 hours. The members of the group had accessed the coal loader premises, activated a safety isolation switch, which rendered the conveyor belt inoperable and then chained themselves and locking devices to part of the conveyor belt structure. The defendants did not physically alter the conveyor belt, which could be de-isolated by resetting electrical equipment. The question was whether the protestors had occasioned "damage" within s 195(1) to the coal loader, despite the lack of a finding of physical harm. The appellant in Fraser argued on the basis of Walters J's statement in Samuels v Stubbs, "In my opinion it is sufficient proof of damage if the evidence proves a temporary functional derangement of the particular article of property" that mere functional interference to the conveyor belt was sufficient to constitute damage.

66 Her Honour concluded that no damage within the meaning of s 195 had occurred, because the conveyor belt was not itself physically affected by the action of the defendants. After extensive review of the authorities, including a civil case Ranicar v Frigmobile Pty Limited [1983] Tas R 113, together with Henderson v Battley, Hardman, Samuels v Stubbs and Zischke her Honour concluded (at [38]) that physical harm was necessary before 'damage' could be established:

In my opinion, an essential element of "damage" for the purpose of s 195 is, to use the words (or some of them) of Walters J in Samuels v Stubbs, "physical derangement" (though not necessarily permanent, or even lasting) to the property in question. It is the word "functional" that has given rise to the present argument. But I do not read his Honour's conclusion as meaning that temporary functional interference, without a physical interference with the property itself, could be sufficient to establish criminal damage. It is of some significance that in that case the evidence was that the policeman's cap had been jumped upon and crushed. That was ample evidence of physical derangement. In my opinion too much emphasis has been placed upon the word "functional" without it being seen in its complete and proper context. Interference with functionality alone, without "physical derangement" would, in my opinion, be insufficient to establish damage within the meaning of s 195. Interference with functionality could be proved, for example, by proof of the removal of a key to a motor vehicle, or the erection of physical barricades around a vehicle preventing its use. But here, in my opinion, while they might amount to some other offence, such interference would fall short of amounting to (malicious) damage.

67 In the context of a substance such as spittle/mucus being placed on property (as is the case here), the applicant here submitted that her Honour's statements in Fraser in relation to a "physical derangement" or "physical interference" to the property meant that it was necessary for the prosecution now to establish that that the substance and the property in question had to "bond". He submits that if the analysis in Fraser is correct, and such physical interference is a necessary element of "damages" and if no such bonding can be established on the facts, no relevant damage could have occurred here. In answer the respondent submits that "physical derangement" may be satisfied by a substance being deposited on the property, without any "bonding" taking place.

68 But it is not strictly necessary to decide this question in these reasons because of the approach taken below in relation to the findings in the stated case: that the findings neither establish physical damage nor functional interference with the seat.

69 But were it necessary to decide the question I would respectfully differ from the approach that Simpson J took in Fraser, and conclude that the course of authority in both England and Australia now supports the conclusion that interference with functionality of the property in question alone, even without physical harm to or "derangement" of the property is sufficient to establish "damage" within Crimes Act s 195. In my opinion this conclusion is justified on the various judicial formulae of what constitutes "damage" developed in the course of authority. Both Zischke and "A" (a Juvenile) allow physical harm ("imperfect") and functional interference ("inoperative") as alternative paths to establishing a finding of criminal damage. Samuels v Stubbs also approved in this court in Hayne allow that "temporary functional derangement" is alone a sufficient basis for a finding of criminal damage. And Morphitis v Salmon, Henderson & Battley and Whiteley allow the establishing of "physical harm" and "impairment of value or usefulness" as separate paths to a finding of criminal damage.

Consideration

70 Whichever of these judicial approaches is taken to the facts found in the present case, those facts do not support the applicant's conviction. Whether the approach in Zischke and "A" (a Juvenile) is deployed to assess whether a person "damages" a thing within Crimes Act s 195(1) by being rendered imperfect or inoperative, or whether the approach in Samuels v Stubbs of "functional derangement" is adopted, or whether the approach in Morphitis v Salmon of "physical harm" or "impairment to value or usefulness" is adopted, the result in my view is the same. The facts found in this stated case do not support the applicant's conviction.

71 This conclusion readily emerges from a close reading of the facts found in the stated case in light of authorities discussed above. Upon analysis Lerve DCJ found neither physical damage to the seat nor actual interference with the usefulness of the seat.

72 As to physical damage, either permanent or temporary, the case stated is clear "No permanent or ongoing damage was occasioned to the dock of the Warren Police Station". But, of course, it is not necessary for the damage in question to be permanent or irreparable: Zischke at 246 and Fraser at [27].

73 Nor did Lerve DCJ make any finding of temporary physical damage to the seat. His Honour did not make findings about the effect of the spittle/mucus interacting with or adhering fast to the surface of the stainless steel. This is perhaps not surprising given the anti-corrosive characteristics of stainless steel. This is not like the graffiti cases, which often include findings about material such as paint being applied to a surface then adhering to that surface, and only being able to be removed by specific methods such as a high-pressure hose, or over time, by the force of rain on other agents. Either no evidence was put before Lerve DCJ as to such adherence or as to specific removal requirements; or if there was such evidence, his Honour was not prepared to make any relevant findings based upon it, other than through his reference to "professional cleaning", a reference which has the limitations analysed below. The facts his Honour found are quite consistent with the physical effect of the spittle/mucus on the metal seat being such the same as many fluids, which could be wiped away with a damp cloth without leaving any mark.

74 Nor did Lerve DCJ find any interference with the function of the seat in the dock. All he found was that the applicant "projected spittle or mucus from his mouth" and that he thereby caused it "to land on the metal seat of the dock". The only findings that could support an inference of interference with function were that "police informed [the applicant] that the presence of the spittle or mucus in the dock area would require professional cleaning". But his Honour recognised the unsatisfactory nature of this hearsay statement from the police about "professional cleaning". He did not infer as a matter of objective fact that professional cleaning would actually be required. His Honour was only prepared on the evidence before him to draw the rather more limited inferences that the dock area "had to be cleaned" and that "such cleaning required some degree of effort by some person" (emphasis added). These findings are quite consistent with an employee at the police station merely wiping a damp cloth over the seat to clear it of spittle/mucus in the course of otherwise required routine cleaning, or in the course of what described in Re "A" (A Juvenile) as "a reasonable attempt at cleaning". His Honour did not infer a need for professional cleaning, or a need for the expenditure of any specific funds on such cleaning, or any particular level of difficulty or additional effort or inconvenience beyond what would be required for the removal of this substance during routine cleaning of the area.

75 Whilst it is true on the authorities discussed it is not necessary to prove the expenditure of funds to establish damage on a Crimes Act s 195 charge, such expenditure is nevertheless one indicator that damage has occurred: Samuels v Stubbs, at 203.

76 But none of these findings amount to an ultimate finding of an interference with the function of the seat in the dock. Far more detailed preliminary findings would be required to support an ultimate finding of functional impact from the spittle/mucus. Such a finding could well require the answers to many questions. How long was the seat? (As explained earlier in these reasons, Exhibit D, the photograph of the seat, was not submitted as part of the facts found.) How much of the seat was covered by the spittle/mucus? Did the portion of the seat covered by spittle/mucus make the whole seat temporarily unusable, or not? Considering the importance of analysis of the relevant function of the property in question (see Morphitis v Salmon above), given the frequency of persons being charged in Warren Police Station at the time could the spittle/mucus have been removed with a simple cleaning cloth before it was required for the next person charged? Was the dock/seat in fact used after the applicant was present in it? Would the spittle/mucus probably have been removed in any event as part of the routine cleaning system for the dock area due to its regular use by members of the public: a cleaning system which must ordinarily anticipate that some of the dock's users may be intoxicated, may have influenza or may have recent wounds. Without the answers to those and other questions it is not open to draw an inference beyond reasonable doubt that this substance did interfere with the seat's function. These questions are neither asked nor answered in the findings before this Court on this case stated. And importantly here there was no clear finding that the seat or the dock could not serve its function for any identifiable period.

77 Questions such as these illustrate that the element that a "person damages" property in this Crimes Act s 195(1) charge requires the proof of facts that establish either physical harm to or functional interference with the property the subject of the charge, so as to show that the thing was rendered imperfect or inoperative in the context in which the property exists. Such supporting proof is not evident in the findings here. This observation should not be taken as any criticism of Lerve DCJ: it seems apparent that the necessary factual material was not before him.

78 Thus the Court is left with findings that do not support an inference of physical damage or functional interference to the seat or showing that the thing was rendered imperfect or inoperative. The applicant's conviction therefore cannot be supported on those findings and must be quashed.

Conclusion and Orders

79 In the result therefore the orders I would propose that the Court make are:

(1) Extend time up to and including 26 October 2012 for the applicant to submit his stated case;

(2) The question of law on this stated case should be answered in the negative, as the facts set out in the case cannot support a finding of the applicant's guilt beyond reasonable doubt of an offence contrary to Crimes Act s 195 (1)(a) by damaging the seat in question; and,

(3) The applicant's conviction is quashed pursuant to Criminal Appeal Act 1912 s 5B.

80 BELLEW J: I agree with Slattery J.

Amendments

17 May 2013 - H.M. Wilson (replaced Ms Girdham) as Respondent
Amended paragraphs: Name of Counsel

Decision last updated: 17 May 2013