Criminal Damage – Elements & Defences (Crimes Act s.197(1))

Statutory Source

  • Offence created by the Crimes Act, s.197(1). This section specifically outlines the criteria that must be met for a charge of property destruction or damage to be laid and prosecuted.

Elements the Prosecution Must Prove (ALL 4 Required)

  • 1. Destruction or Damage of Property

    • The accused must have destroyed or damaged something that legally counts as “property.”

    • This includes any act that renders property unusable, impaired, or diminished in value.

    • Damage does not need to be permanent; temporary impairment can suffice.

    • “Property” = real or personal property, expressly including money. This broad definition covers land, buildings, vehicles, goods, and all forms of currency.

    • Examples: Graffiti on a wall, breaking a window, cutting a fence, or disabling a computer system.

  • 2. Property Belonged to Another

    • “Belongs to another” when someone other than the accused has:

    • Control over the property: This refers to physical possession or the right to dictate its use.

    • A proprietary interest: This includes legal or equitable ownership, such as part-ownership or beneficial interest in a trust.

    • A charge over it: This means a security interest like a mortgage or a lien, where the property serves as collateral for a debt.

    • Examples:

      • Interests of a mortgagee: The bank holding a mortgage on a house still has a proprietary interest in the property, even if the homeowner is the primary occupant.

      • Assets held in trust: Property managed by a trustee for the benefit of another person (the beneficiary).

      • Corporate property: Assets owned by a company, distinct from its individual employees or directors.

      • Property can have multiple owners; prosecution only needs to show that at least one person (not the accused) had ownership or one of the above interests.

  • 3. Intent or Knowledge

    • The accused must either:

    • Act with the purpose of damaging/destroying the property: This means the intention to cause the specific damage was the accused's direct aim or objective (direct intent).

    • OR

    • Know their conduct is likely to cause such damage/destruction: This refers to recklessness, where the accused foresees the probability or real possibility of damage occurring from their actions but proceeds anyway, indifferent to the risk.

    • It is not necessary for the accused to have intended the extent of the damage that actually occurred, only that some damage was intended or foreseen as likely.

  • 4. Absence of Lawful Excuse

    • Prosecution must prove the accused did not have a lawful justification for their actions.

    • This element acts as a safeguard, ensuring that actions taken under legitimate circumstances are not criminalized.

    • Possible excuses the prosecution must negate:

    • Belief that the property belonged to them: A genuine (though possibly mistaken) belief by the accused that they were the sole owner of the property and thus had a right to damage it. This defence does not require the belief to be reasonable, only genuinely held.

    • Belief they had a legitimate right or interest to damage/destroy it: This covers situations where the accused believed they had permission (express or implied) from the owner, or a legal right (e.g., specific contractual terms or legal privilege) to act as they did.

    • The burden is on the prosecution to disprove any such lawful excuse raised by the defence beyond a reasonable doubt.

Defences & Excuses (Accused May Raise)

  • Self-Defence (Common Law): If the accused reasonably believed the damage was necessary to protect themselves or another person from an imminent threat of unlawful force, and their actions were a reasonable response in the circumstances, conviction should not follow. This defence focuses on the necessity of the act to prevent harm.

  • Claim of Right / Lawful Excuse (further details):

    • Accused may argue:

    • They genuinely (and reasonably) believed the property was theirs: This defence is often raised in disputes over ownership, where the accused genuinely believes they are entitled to the property being damaged.

    • They held a recognised right or interest allowing the act: This includes situations where the accused believed they had express or implied consent from the owner, or a legal authority (e.g., police officer lawfully disarming a dangerous device, or a person abating a nuisance on their property).

    • The test is subjective as to the belief, but objective as to whether that belief, if true, would constitute a lawful excuse.

Practical/Legal Significance

  • Burden of proof: The Prosecution must establish every element outlined above beyond a reasonable doubt. This is a high standard and means there must be no reasonable doubt left in the mind of the trier of fact (judge or jury) that the accused committed the offence.

  • Any credible evidence suggesting a lawful excuse shifts focus back to the prosecution to disprove that excuse beyond a reasonable doubt. The accused does not need to prove their excuse, only to raise it as a live issue for the prosecution to negate.

  • Recognising multiple ownership is crucial—damage to jointly-owned items can still satisfy the “belonged to another” requirement. This prevents individuals from damaging shared property and escaping liability by claiming partial ownership.

  • The severity of the penalty for this offence can vary significantly based on the value of the damage caused and the specific intent of the accused.